Raja @ Selvaraj & Ors. v. The State by the Inspector of Police, All Women Police Station, Gobichettipalayam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:13.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.Nos.131 and 76 of 2007andM.P.No.1 of 2007 Raja @ Selvaraj... Petitioner/Ist Accused in Crl.R.C.No.131 of 2007 Stanley Jones... Petitioner/2nd Accused in Crl.R.C.No.76 of 2007vs. The Staterep.by the Inspector of Police, All Women Police Station, Gobichettipalayam.... Respondent/Complainant in (Cr.No.25/05)both the revisions Petitions filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 26.10.2006 passed by the Judicial Magistrate, No.I,Gobichettipalayam, in Crl.M.P.No.4644 of 2006 in C.C.No.34 of 2006.For Petitioners : Mr.Pari Ramaiah for Mr.RangarajanFor Respondent : Mr.R.Muniyapparaj,G.A. COMMON ORDER Challenging and impugning the order dated 26.10.2006 passedby the Judicial Magistrate, No.I, Gobichettipalayam, in Crl.M.P.No.4644 of 2006 in C.C.No.34 of 2006, these criminalrevision cases are focussed.

Compendiously and concisely, the facts which are absolutelynecessary and germane for the disposal of this case would runthus:-The police laid the police report in terms of Section 173 ofCr.P.C. for the offence under Sections 354 and 506(i) IPC asagainst the accused. When the matter has been pending before the Magistrate concerned, the de-facto complainant herself filed apetition for including Sections 498 and 509 of IPC. But the saidpetition was dismissed. Charges were framed by the Magistrate forthe offences under Sections 354 and 506(i) IPC. ThereafterAdditional Public Prosecutor concerned filed Crl.M.P.No.4644 of2006 for framing additional charge under Section 4 of the Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Prohibition of (Harassment of Women) Act (hereinafter referredto as the 'Act' for short) and it was allowed. Being aggrieved byand disconcerted with the order of the Court below in Crl.M.P.No.4644 of 2006, the petitioners/accused have filed theserevision petitions, raising various grounds, the warp and woof ofthem would run thus:-The learned Magistrate, after categorically arriving at theconclusion that no offences under Sections 498 and 509 of IPC hadbeen made, he was not justified in veering round and taking a pleaquite antithetical to what he committed himself in black and whitein the form of the earlier order dated 10.6.2006, in passing thepresent order dated 26.10.2006, as though the offence under Section4 of the Tamil Nadu Prohibition of (Harassment of Women) Act hasbeen made out.

Heard both sides.

The point for consideration is as to whether there is anyperversity or non-application of law in passing the order dated26.10.2006 for including Section 4 of the Act also in the charges.

The learned counsel for the revision petitioners, byinviting the attention of this Court to the various portions of therecords available, would set forth and put forth his argument tothe effect that the accused persons should not be kept undertenterhooks by going on suggesting or changing the penal Sectionsas against them, even though the law might permit alteration ofcharge on sound grounds and not on flimsy grounds. After the Magistrate having exercised his discretion not to add any moreoffences in the charge, which were framed under Section 354 and 506(i) of IPC, he was not justified in passing the impugned order.6. Whereas, the learned Government Advocate(Crl. Side), by wayof torpedoing and pulverising the arguments, as put forth on theside of the revision petitioners, would submit that the verycomplaint itself attracts Section 4 of the said Act, as thedefinition 'harassment' as contained in the said special enactmentwould include the nature of the offence complained of in the FIRand as such, there is no embargo under Section 216 of theCr.P.C.for framing additional charge under Section 4 of the Act.7. At this juncture, I would like to refer to the FIR itself.A plain reading of it would highlight and spotlight that the de-facto complaint is working as Headmistress in C.I.G.MissionElementary School. It is the specific complaint of her that theaccused herein, namely, Raja @ Selvaraj, being the Correspondentand Stanley Jones, being the Principal, respectively, indulged indemanding from the de-facto complainant sexual favours andaccording to her, these acts of accused took place in theeducational institution, itself. https://hcservices.ecourts.gov.in/hcservices/

At this stage, this Court is not expected to probe into thefact as to whether the allegations in the complaint are true orfalse. During trial alone all these facts could be gone into andit is for the trial Court to come to a reasoned conclusion.

The point to be considered here is as to whether theearlier order dated 10.6.2006 passed by the Magistrate is anembargo for passing the subsequent order.10. At this juncture, I recollect and call up the followingmaxims:1. Res judicata pro veritate accipitur;2.Nemo debet bis vexari, si constat curiae quod sit pro unaet eadem causa; The gist and kernal of these maxims are that once the Courtadjudges the cause, subsequently, it should not adjudge the samecause.

Furthermore, the learned counsel for the revisionpetitioners also would correctly point out that the Court itselfcannot approbate and reprobate; blow hot and cold. Once an orderwas passed by a Judge on a particular point, again he cannot passan order on one other fresh application quite contrary to the orderpassed in the earlier application. Precisely and pithily thecontention of the learned counsel for the revision petitioners isthat the very application filed by the Additional Public Prosecutorshould have been returned or rejected in limini in view of theearlier order passed by the Magistrate.

It is therefore just and necessary to look into theearlier order dated 10.6.2006 passed by the Magistrate. The gistand kernal of it is that he could not see that penal Sections 498and 509 IPC were attracted in any manner in the wake of theaverments as found set out in the F.I.R. It has to be seen as towhether ingredients of Section 4 of the Tamil Nadu Prohibition of(Harassment of Women) Act, and the ingredients, as contemplatedunder Section 498 and 509 of IPC are one and the same. The answeris at once clear, without any difficulty, that it is not so. Section 498 IPC contemplates the following ingredients. "Ingredients: 1. Taking or enticing away or concealingor detaining the wife of another man from (a) that man, or(b) any person having the care of her on behalf of thatman.2. Knowledge or reason to believe that she is a wifeof another man3.Such taking, enticing, concealing or detaining mustbe with intent that she may have illicit intercourse withany person. " https://hcservices.ecourts.gov.in/hcservices/ Whereas, Section 4 of the Prohibition of (Harassment of Women) Act,1998, contemplates a different set of ingredients and as such, Section 4 of the Prohibition of Women's Harassment Act is extractedhereunder for ready reference: "4. Penalty for harassment of woman – Whoever commitsor participates in or abets harassment of woman in orwithin the precincts of any educational institution, templeor other place of worship, bus stop, road, railway station, cinema theatre, part, beach, place of festival, publicservice vehicle or vessel or any other place shall bepunished with imprisonment for a term which may extended tothree years and with fine which shall not be less than tenthousand rupees. "The definition of Harassment, as contained in Section 2(a) of the Prohibition of (Harassment of Women) Act would run thus: "2. . . . (a) "harassment" means any indecent conduct or act by a manwhich causes or is likely to cause intimidation, fear, shameor embarrassment, including abusing or causing hurt ornuisance or assault or use of force)"As such, reading of Section 4 read with Section 2(a) of the TamilNadu Prohibition of (Harassment of Women) Act would clearlyexemplify that this is a special and peculiar penal Section byitself, which cannot be equated in toto with Section 498 of IPC.

Section 4 of the said special enactment proscribescertain types of conducts as offence. To the risk of repetition, without being tautalogous, I would like to highlight that here thevery nature of the complaint would attract Section 4 of the Prohibition of (Harassment of Women) Act, as it is the specificcase of the de-facto complainant, that she being a woman washarassed, in the educational institution itself by the accused, who are in authority and in such a case, it is too early for this Court to intervene and hold whether the offence is made out or not.

Section 216 of Cr.P.C. is wide enough to frame chargeunder Section 4 of the Tamil Nadu Prohibition of (Harassment of Women) Act and the lower Court, in its discretion thought fit toframe charge under the same. Simply because at one point of timethe prosecution as well as the de-facto complainant has not chosento usher in Section 4 of the said special enactment, there is noembargo for framing additional charge. Hence, I could see no meritin the revisions. Accordingly, the revision petitions aredismissed. Consequently, connected miscellaneous petitions aredismissed.

The learned counsel for the revision petitioners wouldmake an extempore submission that a time limit may be fixed for https://hcservices.ecourts.gov.in/hcservices/ early disposal, as the revision petitioners have been kept undertenterhooks.

I could see force in the submission made by the learnedcounsel for the revision petitioners. Hence, I direct the Magistrate concerned to dispose of the matter on merits, as perlaw, within a period of four months from the date of receipt ofcopy of this order. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Judicial Magistrate No.1,Gobichettipalayam.2. -do- Through The Chief Judicial Magistrate, Erode.3. The Inspector of Police, All Women Police Station, Gobichettipalayam.4. The Public Prosecutor, High Court, Madras.4 cc To Mr.Rangarajan, Advocate, SR.30768 & 30769.Crl.R.C.Nos.131 and 76 of 2007CK(CO)RVL 28.07.2009