- (1.) Rule. Rule returnable forthwith with the consent of parties. Heard respective counsel. The petitioner herein had filed a complaint in the Court of Metropolitan Magistrate at Kurla, which was registered as C.C. No. 42/SW/2010. The complainant had alleged that she had joined the services as a peon in the School known as S.G. Barve School, Kurla (West), Mumbai in the year 1999. In 2001, she was transferred to Magan Nathuram Marg BMC Urdu School. Kurla (West) and was working there as a peon. She has contended that respondent No. 2 was working as a Principal of the said School. Respondent No. 3 was working as a teacher of Physical Training as well as Carpentry Course. Respondent No. 4 was the Administrative Officer, who was in charge of the transfer of peon/staff employed in the BMC School and respondent No. 5 was the Beat Officer in charge of transferring the teachers employed in BMC Schools. She alleged that in the month of December, 2008, when she was sweeping the floor. Sadashiv Dattaram Naik, who was working as teacher in the said School, caught her from backside. On 26.1.2009, when she was opening her lock, he followed her and tried to have physical contact with her. In the month of February 2009, when the students of 7th Std. were to leave for a picnic to Pen-Panvel, she was carrying school catalogues to be distributed amongst the students. He pushed those catalogues there. When the catalogues fell down, he touched her inappropriately under the guise of removing catalogues from her hands. She lodged a complain to the Education Department of BMC on 26.3.2009. Prior to that, on 21.3.2009. the accused had committed similar offences. Respondent No. 3 herein along with original accused No. 2 had committed similar offences and she lodged a report regarding the same on 21.3.2009 to V.B. Nagar Police Station. The police had registered N.C. No. 418/2009. She thereafter informed the respondent No. 2 about the said incident since the respondent No. 2 was working as a Principal of the said School. The accused persons had threatened the complainant in the presence of respondent No. 1 that they would assault her in the event that she tried to act smart. The police authorities had not taken any action against the accused. They had not recorded her statement properly. Thereafter, she lodged a report to the Deputy Municipal Corporation and brought to his notice about the said incident on 10.6.2009. She had also reported that the original accused Nos. 1, 4 and 5 had not taken any action against the accused Nos. 2 and 3 and on the contrary, in collusion with accused No. 1, had transferred the complainant to other school i.e. Naupada Urdu School of Kurla vide transfer order dated 18.6.2009. The transfer order was deliberately kept incomplete by not mentioning her salary in column No. 3. Since the basis salary was not mentioned, she was not permitted to join her transfer post. She had approached the police on several occasions. However, the police had turned a deaf ear to her complaint and had not taken any action against the accused. She has further stated in her complaint that she is working with the school situated at Kurla. The accused are also posted at the school at Kurla and are serving within the jurisdiction of V.B. Nagar Police Station. The learned Magistrate had called for a report under Section 202 of Cr.P.C. API V.B. Nagar Police Station filed a report under Section 202 of Cr.P.C. on 19.5.2010. It was reported that on 21.3.2009. she had lodged a report at Bailbazar Police Chowki against the accused and her contention that the police had not recorded her statement properly cannot hold good ground since she-had signed the report. Moreover, the police had reported that there was a delay of four months in lodging the report and therefore, it does not inspire confidence. It is admitted that she had reported to the senior police about inaction on the part of police. The officer has further opined that there appears to be some dispute between the accused and the complainant and therefore, she had lodged a report to the Deputy Commissioner and hence the Deputy Commissioner had transferred the complainant as well as the accused. It was further opined that there are no concrete allegations against the accused. The police had further stated that there is no independent witness to support/corroborate the allegations levelled by the complainant. That although the Principal was a lady, the complainant had not made any complaint to her. According to police, only because of the dispute between the complainant and the accused, she had field false report against the accused. It was also reported that she had challenged her transfer order before the Labour Court and the said case is pending. That she had not co-operated for medical examination and had not joined her transferred post. Hence, the police had reported that being disgruntled with the accused, she had malafidely lodged reports against them and, prima facie, there is no case made out against the accused.
(2.) The learned Magistrate had issued notice to the complainant calling upon her to show cause as to why the report filed by the police should not be accepted.
(3.) On 4.5.2010, the police had recorded the statement of the complainant and she had made specific allegations against the accused. The police had also recorded the statement of Innusa Aktar i.e. original accused No. 1. She has staled that on 21.3.2009, when she was in her office, the present petitioner and the accused had quarrelled. She had lodged a report at the police station. She brought the police and therefore, Smt. Innusa enquired with her. The petitioner had informed her that the accused had abused her. The respondent No. 2 herein had assured the petitioner that he would transfer the accused to some other school. According to her, inspite of the said assurance given, she lodged a report with the Education Department of the B.M.C. The committee members had come to the school and enquired. The petitioner was then transferred to Naupada School. The respondent No. 2 has further contended that thereafter the petitioner had approached the Labour Court. The police has recorded the statement of the accused against whom allegations were made by the petitioner and has then contended that there is no independent evidence to corroborate the allegations of the petitioner. Upon perusal of the report under Section 202 of Cr.P.C., the Metropolitan Magistrate vide order dated 29.7.2010, has been pleased to dismiss the complaint against accused Nos. 1, 3, 4 ad 5 and has issued process against accused No. 2 for the offence punishable under Sections 354 and 504 of Indian Penal Code. The learned Magistrate has observed that there is no proof besides her bare words. According to her. the learned Magistrate has placed implicit reliance upon the report under Section 202 of Cr.P.C.;