Pointing that allegations of rape and sexual assault have been made by the prosecutrix against the petitioner solely due to non-payment of gratuity to her by the petitioner, to which she is not legally entitled as per her own admission, the Delhi High Court quashed the FIR registered under Sections 354, 354A and 376 of the IPC, registered at P.S. Greater Kailash-I, New Delhi along with all other proceedings emanating therefrom.

Further, finding that the petitioner is admittedly an 85 years old senior citizen and the allegations made are absurd and inherently improbable, the High Court held that there does not appear to be sufficient ground to allow the continuation of criminal proceedings against the petitioner.

A Single Judge Bench of Justice Vikas Mahajan observed that “the allegations made are bereft of details and when the same are examined in light of other material collected, it appears that the allegations of rape and sexual assault have been made by the prosecutrix against the petitioner solely due to non-payment of gratuity to her by the petitioner, to which she is not legally entitled as per her own admission. Plainly, the criminal proceedings have been maliciously instituted to arm twist the petitioner with an ulterior motive to extort money in the name of gratuity”.

Advocate Akshay Chowdhary appeared for the Petitioner, whereas APP Aashneet Singh appeared for the Respondent.

The prosecutrix filed an FIR against the petitioner under whom she was working as Secretary since 2003, alleging that petitioner had sexually and inappropriately harassed the prosecutrix trying to take physical favours. The prosecutrix also alleged that she quit the job due to the said reason without any notice period and when she asked for gratuity, the same was refused by the petitioner. When her statement was recorded under Section 164 CrPC, the prosecutrix further alleged of having oral sex against the petitioner. Accordingly, Section 376 IPC was also added in the FIR and the chargesheet was filed. However, neither the charges have been framed nor cognizance has been taken yet. Hence, the petitioner approached the High Court.

After considering the submission, the Bench found from a perusal of the chargesheet that the allegations pertained to the period 2023 but the complaint has been made by the prosecutrix for the first time only in Sep 2022, based on which the FIR came to be registered.

The Bench further found that there is an inordinate delay for which there is no explanation in the FIR and the explanation has been given for the first time by the prosecutrix in her statement recorded under Section 164 CrPC wherein she has stated that she was the only bread earner in the family and due to financial problems and immaturity she continued to work in the office of the petitioner.

“Even if this is taken as a justification for not lodging the FIR at the earliest, the same is false on the face of it, in as much as, the husband of the prosecutrix in his statement under Section 161 CrPC has categorically stated that he is working with Logistic Company Gurgaon for the past 20 years and is drawing a salary of Rs.40,000/- per month. Thus evidently, the petitioner was not the sole bread earner of the family and the ostensible reason put forth by the prosecutrix for continuance in the office of the petitioner despite the alleged suffocating atmosphere, stands falsified”, added the Bench.

Thus, the Bench observed from a comparative reading of the FIR, as well as, the statement of the prosecutrix recorded under Section 164 CrPC, that the prosecutrix has made major and material improvements over her original version based on which the FIR came to be registered.

The Bench further observed that neither any date and time, nor details of any specific incident have been mentioned in either version and moreover, the period of the alleged offence committed is over a period of 18 years and it is highly improbable that during this period prosecutrix would not inform anyone about the alleged case of the petitioner, not even to her husband.

Intriguingly, the Bench found that the husband of the prosecutrix in his statement recorded under section 161 CrPC has feigned complete ignorance about any alleged act of the petitioner, rather he has stated that the prosecutrix had never told him that her boss had committed any wrong act with her.

The bench also interestingly found that a complaint made by the prosecutrix to the Delhi Commission for Women, wherein she has clearly stated that no molestation or sexual assault has been done to her and she only wants that her gratuity should be provided to her and does not want to pursue her case against the petitioner.

However, in so far as the prosecutrix’s entitlement to gratuity is concerned, she admitted, in response to a query put by the ASJ, that there is no provision of gratuity in her employment with the petitioner, added the Bench.

Accordingly, the High Court quashed the FIR and allowed the petition.

Cause Title: Surendra Nayar v. State and Anr. [Neutral Citation: 2023: DHC: 7794]

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Delhi High CourtJustice Vikas Mahajan

Pankaj Bajpai