Employee’s Transfer Based On Organisation’s Policy Does Not Amount To Criminal Intimidation/ Conspiracy Under IPC: Calcutta High Court

The Calcutta High Court on Thursday quashed criminal proceedings initiated against the Human Resources Manager of IDBI Bank (“petitioner”), by an employee/opposite party No 2, against whom a female co-worker had earlier filed a complaint for sexual harassment at the workplace.

In holding that the petitioner could not be considered guilty of the offences of criminal intimidation or criminal conspiracy in the matter of the opposite party’s transfer, a single-bench of Justice Ajoy Kumar Mukherjee opined:

The petitioner herein according to complaint has only communicated the previous complaint to his higher authority. Transfer is an usual incident concerning service and does not generally require the consent of the employee. Under the Bank’s transfer policy an officer is liable to be transferred in different station and he cannot claim to remain in a particular place unless his appointment itself is to be specified non-transferable post. Ingredients of offence of criminal conspiracy suggests an agreement to commit an offence. There is nothing in the allegation that the present petitioner /accused no.2 has made any agreement with other accused persons to commit any offence. In fact in the present case there is absolutely nothing to establish that there was any agreement with the petitioner herein to commit any illegal act or any legal act by illegal means. If the bank authority decided to transfer any of its employee from one place of posting to another branch, may be in a distant state, which is permissible under the transfer policy, that must not constitute any offence punishable under section 506 of I.P.C, since it does not amount to threat to cause any “injury” to the complainant’s reputation or property.

It was submitted by the petitioner/accused no 1, that an employee of IDBI Bank, one Ms A Dutta/accused no 1, had lodged a complaint of sexual harassment against the opposite party no 2, and that during the pendency of proceedings arising from the complaint, the opposite party was transferred to a branch in Tripura on an administrative basis.

The petitioner further submitted that she was in no way involved or in any position to influence the decisions being made upon the accused no 1’s complaint by the Bank’s Internal Complaints Committee.

It was argued by the petitioner that per IDBI Bank’s transfer policies, bank officers with more than five years of stay at a station would be liable for transfer outside their station and that the opposite party with six years of experience at the Suri Branch was transferred to Tripura due to there being an urgent need of an experienced officer at the branch.

Petitioner argued that in the meanwhile, she was issued summons in a defamation case as well as in a subsequent criminal proceeding filed by the opposite party no 2, accusing the petitioner of criminal conspiracy with accused no 1 in lodging a false complaint against him and of character assassination, physical and mental torture.

Counsel for the petitioner contended that the Magistrate’s order taking cognizance and issuing summons against the petitioner was bad in law and that there were no charges of criminal intimidation or conspiracy against the petitioner, who had only communicated the order of transfer to the opposite party and been made a ‘scapegoat’ in a counter-blast against the transfer and disciplinary proceedings.

It was argued that though the petitioner resided outside the territorial jurisdiction of the Birbhum Chief Judicial Magistrate who issued the order of summons, he had not followed the procedure under the amended Section 202 of CrPC, to direct an investigation before issuing such summons.

Petitioner finally argued that the order of cognizance was without any reasoning in the absence of any criminal intimidation or conspiracy, and that the court was dutybound to apply its judicial mind to ascertain the existence of a prima facie case before issuing summons in the matter, and not “act like a post office.”

It was argued by the opposite party no 2 that the petitioner upon the instigation of accused no 1, without conducting any enquiry, passed the transfer order and that the petitioner had also taken steps to “put a stigma in the character of opposite party no 2.”

It was submitted that the opposite party was suffering from physical ailments due to which the doctor had advised him to stay away from hilly areas, and that the transfer was a ‘punishment transfer’ even though no steps were taken according to the PoSH Act.

The opposite party no 2 argued that he had filed an RTI query and in response to the same it was found that no disciplinary proceedings had been pending against him and that on account of his transfer no action on the pending enquiry was necessary,

Opposite party argued that due to the false allegations he had suffered irreparable loss and injury and that the petitioner, bank officials, and accused no 1 had committed the offence of criminal intimidation and criminal conspiracy under Sections 506 and 120B against him by affecting his transfer, which was not merely administrative in nature.

In dealing with the contentions raised by the parties, the Court examined the complaint of the opposite party no 2, on the basis of which the Magistrate had taken cognizance of the matter, and issued summons u/s 506 and 120B of IPC.

The Court found that the complaints which were of ‘omnibus nature’ had been filed by the opposite party no 2 and his wife, accusing the petitioner and accused no 1 of conspiring to fabricate allegations against him and threatening him with transfer and dire consequences.

It was noted that on the basis of these complaints, the Court had issued summons to the petitioner, without any observations as to why the allegations or deposition made out a case under Section 506 IPC against the petitioner.

In quashing the criminal proceedings against the petitioner and holding that the Birbhum Chief Judicial Magistrate’s order issuing summons under Sections 506/120B suffered from non-application of judicial mind, as well as from want of territorial jurisdiction, the Court concluded:

From a perusal of the order of Magistrate it is evident that he has not given any reason for taking cognizance of offence against present petitioner, thereby showing non-application of judicial mind. The order does not speak that the learned Magistrate has recorded his satisfaction about prima facie case against the petitioner. Accordingly issuance of process against the present petitioner by the impugned order, either under section 506 or under section 120B is perverse and not sustainable in the eye of law.

From the written complaint before the court of Chief Judicial Magistrate Suri, at Birbhum, the address of the accused party no.2 is not within the jurisdiction of the learned Chief Judicial Magistrate Birbhum. The amended provision of section 202 of the Cr.P.C. makes it clear that in such cases the Magistrate shall postpone the issue of process against the accused and either enquiry into the case himself or direct investigation to decide whether or not there is sufficient grounds for proceeding. In the present case in spite of the fact that the accused no. 2 is admittedly residing outside territorial jurisdiction of the concerned Magistrate, Magistrate had issued summon against the petitioner without ordering any investigation as mandated under section 202 of the Cr.P.C.

Case: Debarati Banerjee v The State of West Bengal & Anr.

Coram: Justice Ajoy Kumar Mukherjee

Citation: 2023 LiveLaw (Cal) 226

Click Here To Read/Download Judgment