Crl. Revision No.1558 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.1558 of 2010 (O&M) Date of decision: 01.09.2010 S.P.S. Rathore …Petitioner Versus Central Bureau of Investigation …Respondent CORAM: HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mrs. Abha Rathore, Advocate with Ms. Priyanjali, Advocate for the petitioner. Dr.Anmol Rattan Sidhu, Sr Standing counsel for the CBI with Mr. Ajay Kaushik, Advocate. Mr. Pankaj Bhardwaj, Advocate with Ms. Anju Sharma, Advocate, for the complainant. JITENDRA CHAUHAN, J. Criminal Miscellaneous no. 29590 of 2010 For the reasons mentioned in the main judgment as well as the grounds taken Crl. Revision No.1558 of 2010 (O&M) 2 in the application, prayer of the complainant Mrs. Madhu Parkash for being impleaded as respondent in this criminal revision petition, is allowed. Crl. Misc. application stands disposed of. MAIN CASE: 1. The present criminal revision petition has been preferred by S.P.S. Rathore, a former IPS officer of the Haryana state cadre (hereinafter to be referred to as the petitioner), against the confirmation of his conviction and enhancement of sentence by the court of first appeal (Court of Additional Sessions Judge, Chandigarh) under Section 354 IPC vide Judgment dated 25.5.2010. The petitioner was convicted by the learned Trial Court (Court of Chief Judicial Magistrate, Chandigarh) under section 354 IPC and was sentenced to 6 months imprisonment along with imposition of a fine of Rs.1000/- vide judgment dated 21.12.2009. 2. An Appeal was filed by the petitioner against his aforementioned conviction which was dismissed by the learned Court of first appeal (Court of Additional Sessions Judge, Chandigarh) whereas the appeal filed by the CBI and revision filed by Ms. Madhu Parkash against inadequacy of sentence was allowed. Consequently, the sentence was enhanced to 1 year and 6 months but the fine remained the same. The petitioner has challenged by way of the present criminal revision petition, his conviction under section 354 IPC. In the alternative, the learned counsel for the petitioner has prayed for release of the petitioner on probation. Crl. Revision No.1558 of 2010 (O&M) 3 3. In order to appreciate the issues involved and adjudicate them, it is necessary to give a brief recapitulation of the relevant factual aspects of the case, which is as follows. 4. It was the allegation of the prosecution that on 12.8.1990 at about 12 noon, Ms. Ruchika Girhotra (since deceased), a promising tennis player, along with her friend, Ms. Aradhana was called by the petitioner who was standing near the makeshift office of the then Haryana Lawn Tennis Association (‘HLTA’ for short) which was set up in the under construction house of the petitioner itself, in sector 6 Panchkula. It was also alleged that the petitioner had visited the house of Ms. Ruchika on 11.8.1990 and had requested Sh. S.C. Girhotra, father of Ms. Ruchika, not to send her to Canada for specialized tennis coaching. The petitioner is said to have promised that he would be arranging special coaching for her at HLTA itself and for this purpose he asked Sh. S.C. Girhotra to send Ruchika to meet him the following day around 12 noon at the HLTA office. 5. Ms. Ruchika and her friend Ms. Aradhana, both of whom were also residents of Sector 6 Panchkula, had gone to the tennis courts of HLTA for practicing around 12 noon on 12.8.1990 and at that time Sh. Paltoo, the ball picker, came and told Ms. Ruchika that the petitioner wants to see him in his office. Ms. Ruchika along with Ms. Aradhana went towards the office of the petitioner who on meeting them insisted that they come inside his office. 6. Subsequently, the petitioner called for a chair on which Ms. Aradhana sat. Crl. Revision No.1558 of 2010 (O&M) 4 The petitioner sat on the chair which was already in the office whereas Ms. Ruchika kept standing near the table. The petitioner asked Ms. Aradhana to go and fetch the tennis coach Mr. Thomas, who thereafter went out to look for the coach. She spotted the coach from a distance as he was standing across the road at the rear of the house (southern side) of the petitioner. Ms. Aradhana then asked Sh. Paltoo to go and tell Mr. Thomas that the petitioner wants to see him in the office. Mr. Thomas, on being informed about the same by Sh. Paltoo, waved his hand towards Ms. Aradhana expressing his inability to come at that moment. Immediately thereafter, Ms. Aradhana returned to the HLTA Office where she witnessed that Ms. Ruchika was in the grip of the petitioner, his one hand holding one hand of Ms. Ruchika and with his other hand, which he had put around the waist of Ms. Ruchika, was pushing her towards his chest so as to embrace her. Ms. Ruchika was trying to push the petitioner back with her free hand. Soon as Ms. Aradhana entered the HLTA office, the petitioner on becoming nervous released Ms. Ruchika and fell down in his chair. Ms. Aradhana then told the petitioner that Mr. Thomas has refused to come after hearing which, the petitioner asked Ms. Aradhana to again go and call the coach. 7. Meanwhile, Ms. Ruchika ran out of the office even though the petitioner asked her to come back. At that moment, the petitioner told Ms. Aradhana that she should tell Ms. Ruchika to cool down and tell her that he would do whatever she wants. Without wasting any moment, Ms. Aradhana also followed Ms. Ruchika whom she caught up after a short distance. At that point of time, Ms. Ruchika was crying and on being asked by Ms. Aradhana, Ms. Ruchika told her that after she went out, the petitioner caught hold of her hand which she got released by force but again he got up and caught hold of her Crl. Revision No.1558 of 2010 (O&M) 5 hand and waist and was trying to embrace her. After a brief talk between the two, they decided not to disclose this incident to anyone. 8. The following day i.e. 13.8.1990 being Monday and since the HLTA courts remained closed on Monday, neither of them went to the HLTA courts. On 14.8.1990, Ms. Ruchika and Ms. Aradhana went to the HLTA courts to play tennis at 4.30 pm whereas earlier usually they used to go at 6.30 pm. Both of them went early since the petitioner usually came to the HLTA courts at around 6.30 pm and they wanted to avoid the petitioner by going earlier. However, on 14.8.1990 when the petitioner arrived at the tennis courts, Ms. Ruchika and Ms. Aradhana were still playing tennis. The petitioner sent a message through Sh. Paltoo that he wants to see Ms. Ruchika in his office. At this point of time, Ms. Ruchika and Ms. Aradhana realized that the petitioner has no intention of improving himself and that non disclosure of the incident dated 12.8.1990 has made him even bolder. They thus decided to disclose the incident of 12.8.1990 to their parents and on the same day the incident was first disclosed to Sh. S.C. Girhotra i.e. father of Ms. Ruchika Girhotra, and thereafter to the mother and father of Ms. Aradhana, Mrs. Madhu Prakash and Mr. Anand Parkash. 9. Mr. Anand Prakash, a senior technocrat with one of the agencies of the Government of Haryana and father of Ms. Aradhana alongwith Sh. S.C. Girhotra, on hearing about the incident, gathered the locality residents, who were mostly parents of trainee boys and girls, on 14.8.990 itself and they went to the HLTA courts to meet the petitioner. However, by the time they reached the HLTA office/Courts, they were told Crl. Revision No.1558 of 2010 (O&M) 6 that the petitioner has already left for Chandigarh. On 15.8.1990 a memorandum was prepared disclosing the incident of 12.8.1990 involving the petitioner and the same was signed by Ms. Ruchika, Ms. Aradhana, Mr. Anand Parkash, Ms. Madhu Parkash and few other locality residents and players. On 16.8.1990 the said memorandum was presented to the then Home Secretary, Haryana Sh. J.K Duggal who assured that he will look into the matter. Official permission was sought from the then Chief Minister of Haryana and the then DGP Haryana, Sh. R.R. Singh was directed to hold an inquiry in to the allegations levelled against the petitioner in the Memorandum. This Memorandum was exhibited before the trial court as Ex P -1. 10. On 16.8.1990 itself, on the asking of Sh. J.K. Duggal, all these persons went to the HLTA courts at 5 pm where SDM Kalka Mr. Joshi was asked to be present as per the orders of the Home Secretary. When Mr. Joshi reached the HLTA courts, a notice was found pasted there in which it was mentioned that Ms. Ruchika has been suspended from the HLTA for a period of 15 days on the grounds of indiscipline. This notice although dated 15.8.1990, was made effective from 13.8.1990. The players and their parents who had gathered there, pursuant to the directions of the Home Secretary, raised slogans against the petitioner which attracted the then SHO of Sector 6, Panchukla to the spot on a verbal message being flashed to him. Sh. Kuldip, Manager of HLTA and Sh. T. Thomas, Coach were present there. On being asked by Sh. Joshi, both the Manager and the Coach expressed their ignorance of any act of indiscipline having been committed by Ms. Ruchika. Both of them gave their endorsement to this effect on that Notice itself. The said Notice was exhibited before the Trial court as Ex. P – 2. Crl. Revision No.1558 of 2010 (O&M) 7 11. On 18.8.1990, another report was handed over to the SHO of sector 6, Police Station, Panchkula by Sh. S.C Girhotra and Sh. Anand Parkash which was signed by Ms Ruchika, regarding the incident of 12.8.1990 requesting the Officer in charge to take action against the petitioner. This document was exhibited before the trial court as Ex. P- 3. Along with Ex P – 3, a photocopy of the memorandum (Ex. P – 1) was also attached which was exhibited as Ex. P – 4 before the trial court. 12. Sh. R.R. Singh initiated the inquiry proceedings on 21.8.1990. Amongst those examined by him, were Ms. Ruchika and Ms. Aradhana. He then asked the petitioner to appear before him in response to which the petitioner replied that he will be accompanied with his lawyer. This request of the petitioner was turned down and consequently, the petitioner never appeared before Sh. R.R. Singh. The petitioner vide an application dated 26.8.1990 submitted a list of witnesses whom he wanted to be examined by Sh. R.R Singh along with a request to visit the site in question. On 26.8.1990 evening, a procession was taken out in sector 6 by some labourers who were shouting slogans against Ruchika and in favour of the petitioner. In his inquiry report, Sh. R.R. Singh indicted the petitioner and recommended the registration of a criminal case against him. The Inquiry report was submitted on 3.9.1990. However, nothing was done pursuant to the inquiry report and the State government simply chose to ignore the report, for reasons best known to it. 13. The factual recapitulation above was the first phase of this case, right from Crl. Revision No.1558 of 2010 (O&M) 8 the events immediately preceding the alleged incident, leading upto the crime itself, its public disclosure and follow up action by the family and friends of the molested girl Ms. Ruchika Girhotra. Thereafter, unfortunately, Ms. Ruchika committed suicide in 1993, allegedly under tremendous pressure from the petitioner who on account of his high civil position harassed the girl and her family to no end. Separate proceedings are pending against the petitioner in this Court which is dealing with the allegations against him, regarding abetment to commit suicide by Ms. Ruchika. Those allegations are neither a part of this case nor the evidence brought on record of this case deals in any manner with the allegations of abetment to suicide. However, it was important to highlight the fact of death of Ms. Ruchika by suicide since from thereafter, the responsibility of carrying the case to its logical end was taken up by Ms. Madhu Parkash, mother of Ms. Aradhana and by her husband Mr. Anand Parkash. 14. In 1997, a criminal writ was filed in this Court by Ms. Madhu Prakash, who herself happens to be a lawyer, praying for registration of a criminal case against the petitioner and investigation into the alleged act of molestation of Ms. Ruchika. The said criminal petition was allowed by this Court vide order dated 21.8.1999 and the same was upheld by the Hon’ble Supreme Court. Consequently, the matter was handed over to the CBI which registered a case against the petitioner on the basis of Ex. P -1. After a thorough investigation, the CBI filed its Report in the concerned court and thereafter, the petitioner was called upon to face trial which was conducted by the Learned Court of Chief Judicial Magistrate, Chandigarh. As has already been mentioned, the petitioner was convicted by the Trial court and sentenced to 6 months imprisonment along with a fine. Crl. Revision No.1558 of 2010 (O&M) 9 His appeal against the conviction was dismissed and the sentence was enhanced to 1 year and 6 months on an appeal for enhancement filed by the CBI as also a revision preferred by the complainant Mrs. Madhu Parkash for enhancement of sentence. Against the said judgment, upholding the conviction of the petitioner, the petitioner filed the present criminal revision petition and that is how this case is before this Court. 15. Before adverting to the arguments of the petitioner, the CBI and the complainant, it needs to be clarified that in revisionary jurisdiction the court addresses questions of law only since the questions of facts have already been dealt with by two courts below in detail by scanning all the evidence on record. This is the mandate of law and has to be adhered to. However, there will always be certain factual aspects which either touch upon or have a bearing on a related question of law and as such, such arguments/ issues wherever presented, shall be dealt accordingly. Also in the interest of justice, a brief resume of all the arguments, of law as well as of facts, raised by the counsel for the petitioner will also be given. 16. An application was moved by the complainant i.e. Mrs. Madhu Parkash, to be impleaded as a Respondent in the present Revision Petition. Her application was opposed by the learned counsel for the petitioner on the ground of lack of locus standi. 17. The principle of locus standi was very aptly enunciated by Lord Denning in one of his memoirs (The Discipline of Law). Tracing the expansion of the expression “person aggrieved” Lord Denning referred to the case of R v Thames Magitsrate’s Court Crl. Revision No.1558 of 2010 (O&M) 10 (1957) 5 LGR 129 which was decided by him alongwith Justice Parker in which for the first time, the old test of judging the “person aggrieved” was departed. The old test, which was laid down by Lord Justice James in the Sidebotham case (1880) 14 Ch D 458 at 465, prescribed that a man was not a “person aggrieved” unless he himself had suffered particular loss in that he had been injuriously affected in his money or property rights. In R V Paddington Valuation Offficer, ex parte Peachey Property Corpn Ltd (1966) 1 QB 380 at 400 – 1, Lord Denning observed – `But I do not think grievances are to be measured in pounds, shellings and pence. If a ratepayer or other person finds his name included in a valuation list which is invalid, he is entitled to come to the court and apply to have it quashed. He is not to be put off by the plea that he has suffered no damage, any more than the voters were in Ashby v White. The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done…. So here it will listen to any ratepayer who complains that the list is invalid. This was afterwards approved by the House of Lords in Arsenal Football Club v Ende.’ The principle of locus standi was thus expanded to include within the ambit of expression “person aggrieved”, a person who may not have suffered personal injury but is aggrieved by a wrongful act. 18. It is worth mentioning here that the Complainant had filed a criminal writ petition way back in the year 1997 praying for registration of an F.I.R. against the petitioner which was allowed by this Court. Subsequently, the said order of this Court was also upheld by the Hon’ble Supreme Court and pursuant to the same an F.I.R was formally registered by the C.B.I. Regarding the aforesaid criminal writ petition, it is clear Crl. Revision No.1558 of 2010 (O&M) 11 that the Complainant’s locus standi already stands accepted by this Court as well as by the Hon’ble Supreme Court. Moreover, the learned counsel for the complainant has rightly argued that the plea of locus standi was not raised before the Court of First Appeal. It was further argued by the Learned Counsel that a private complainant has equal standing before the Court and infact the order of enhancement of sentence has been passed in the revision filed by the complainant before the Lower Appellate court. They (complainant) were a party before the trial court and the first appellate court. That being the position, it can be easily inferred that the petitioner has intentionally not impleaded the complainant as Respondent. 19. In any case, the ratio of the cases referred to by the Complainant fully supports the plea that criminal justice system can be set in motion by any citizen. The learned counsel for the complainant in this regard has placed reliance on A.R. Antulay Vs. R.S. Nayak 1984 (2) SCC 500 FB; N.Natarajan Vs. B.K. Subbrao Dharmesh 2003 (2) SCC 76 and DharmeshBhai Vasudevbhai & Others Vs. State of Gujarat & Others 2009 (6) SCC 576. As such, the submissions of the learned counsel for the complainant were heard and the application of the Complainant for being impleaded in this Criminal Revision Petition stands allowed. 20. Before the lower courts as also before this court, the sequence of arguments/ issues raised and the contradictions highlighted in the prosecution case by the learned counsel for the petitioner is identical. Following are the questions of law raised by the petitioner’s counsel: Crl. Revision No.1558 of 2010 (O&M) 12 (a) No incident as alleged by the Prosecution, ever happened because the incident, as detailed by the eye witness (Ms. Aradhana) was neither possible nor probable i.e. theory of improbability and impossibility. (b) There was a lot of delay in lodging the F.I.R. I Validity of Ex. P- 1 was challenged on the ground that it was not signed by Ms. Ruchika or by her father and that Ms. Ruchika’s signatures were forged on this document. (d) Ex. P – 2 was challenged on the grounds that it was produced before the trial court for the first time by Sh. Anand Parkash although it was in his possession since 1990 and also on the ground that Ex. P – 2 was tampered with. (e) Admissibility of Ex. P – 3 was challenged on the ground that it was not signed by Ms. Ruchika in as much as the signatures of Ms. Ruchika appearing on Ex. P – 1 and Ex. P – 3 are not identical and the same finds corroboration from a handwriting expert who appeared as a defense witness. (f) Ex. P – 4, which is a photocopy of Ex. P -1 and was submitted along with Ex P – 3, was challenged on the ground that an extra sheet has been added to the said document containing the names of a number of locality residents, which was not there in the Crl. Revision No.1558 of 2010 (O&M) 13 original document i.e. Ex. P – 1 by photocopying the extra signatures on the back of last page of Ex. P – 1. (g) The Inquiry conducted by Sh. R.R. Singh was without jurisdiction as the petitioner at the relevant time was on deputation with the BBMB; that the Inquiry officer was inimical towards the petitioner and that the petitioner was never examined by the Inquiry Officer. (h) The only eye witness, Ms. Aradhana was infact a planted witness and she was not present with Ms. Ruchika at the time when the alleged molestation took place; her testimony suffers from contradictions and improvements; that she is an interested witness, that she is a chance witness and most of what Ms. Aradhana has deposed before the court, is hearsay evidence which is inadmissible under the Indian Evidence Act. (i) Prosecution failed to produce two material witnesses, namely Sh. Paltoo (ball picker) and Sh. T. Thomas (Tennis Coach). (j) The case was set up against the petitioner by highly placed civil servants namely Sh. Ojha and Sh. J.S. Duggal, who. At the relevant time were PSCM and Home Secretary, respectively. In particular, Sh. Ojha was supposedly inimical towards the petitioner since he had turned down the suggestion of Sh. Ojha to step down from the presidentship of HLTA, paving way for Sh. Ojha to takeover. Crl. Revision No.1558 of 2010 (O&M) 14 (k) The criminal writ petition filed by Mrs. Madhu Parkash, on the basis of which, an F.I.R. was ultimately ordered to be registered by the Punjab & Haryana High Court, was infact a counter blast to the defamation suit filed by the petitioner against Mrs. Madhu Parkash and others and that the said criminal writ petition was filed only after summons were issued by the Court which was trying the defamation suit. (l) Sh. S.C Girhotra demanded money at some point of time (much after Ms. Ruchika’ suicide) for withdrawing the proceedings against the petitioner. (m) The public life of Sh. S.C. Girhotra and Sh. Anand Parkash is tainted in as much as both of them have been punished on corruption charges by their respective offices. (n) The facts/ allegations of the case do not make out a case of molestation u/s 354 IPC as the necessary ingredients of the offence of molestation are lacking. (o) The evidence of material prosecution witnesses suffers from contradictions. 21. The afore mentioned string of arguments raised by the learned counsel for the petitioner is woven around the main defence plea, as built up by the learned counsel that infact the petitioner has been falsely implicated because of a long standing animosity which Sh. Anand Parksah had allegedly developed against the petitioner. The learned Crl. Revision No.1558 of 2010 (O&M) 15 counsel for the petitioner has tried to connect practically each of the arguments somehow with the defence assumption that the entire case was set up by Sh. Anand Parkash and he, infact, derived professional benefit from this exercise, besides venting his longstanding grudge against the petitioner. In addition to the above arguments, there are also a number of connecting arguments of facts which however cannot be detailed here but if appearing to be related to a question of law, shall be discussed at the relevant stage. Also, it is relevant to highlight that out of the entire factual matrix as presented by the prosecution and its contradiction/ rebuttal by the defense counsel, the only undisputed fact that can be culled out is that Ms. Ruchika did go to meet the petitioner on 12.8.1990 around 12 noon and the petitioner met her in his office i.e. makeshift office of HLTA in the garage of his house in sector 6, Panchkula. The discussion hereinafter will be firstly on pure questions of law and thereafter, wherever possible, the Court