Petitions filed under Section 397 r/w 401 of Cr.P.C. against the order 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.
Challenging and impugning the order 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, these criminal revision cases are focussed.
2. Compendiously and concisely, the facts which are absolutely necessary and germane for the disposal of this case would run thus:-
The police laid the police report in terms of
Section 173 of Cr.P.C. for the offence under
Sections 354 and
506(i) IPC as against the accused. When the matter has been pending before the Magistrate concerned, the de-facto complainant herself filed a petition for including
Sections 498 and
509 of IPC. But the said petition was dismissed. Charges were framed by the Magistrate for the offences under
Sections 354 and
506(i) IPC. Thereafter Additional Public Prosecutor concerned filed Crl.M.P.No.4644 of 2006 for framing additional charge under Section 4 of the Tamil Nadu Prohibition of (Harassment of Women) Act (hereinafter referred to as the 'Act' for short) and it was allowed. Being aggrieved by and disconcerted with the order of the Court below in Crl.M.P.No.4644 of 2006, the petitioners/accused have filed these revision petitions, raising various grounds, the warp and woof of them would run thus:-
The learned Magistrate, after categorically arriving at the conclusion that no offences under
Sections 498 and
509 of IPC had been made, he was not justified in veering round and taking a plea quite antithetical to what he committed himself in black and white in the form of the earlier order dated 10.6.2006, in passing the present order dated 26.10.2006, as though the offence under Section 4 of the Tamil Nadu Prohibition of (Harassment of Women) Act has been made out.
3. Heard both sides.
4. The point for consideration is as to whether there is any perversity or non-application of law in passing the order dated 26.10.2006 for including Section 4 of the Act also in the charges.
5. The learned counsel for the revision petitioners, by inviting the attention of this Court to the various portions of the records available, would set forth and put forth his argument to the effect that the accused persons should not be kept under tenterhooks by going on suggesting or changing the penal Sections as against them, even though the law might permit alteration of charge on sound grounds and not on flimsy grounds. After the Magistrate having exercised his discretion not to add any more offences 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 way of torpedoing and pulverising the arguments, as put forth on the side of the revision petitioners, would submit that the very complaint itself attracts Section 4 of the said Act, as the definition 'harassment' as contained in the said special enactment would include the nature of the offence complained of in the FIR and as such, there is no embargo under
Section 216 of the Cr.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.Mission Elementary School. It is the specific complaint of her that the accused herein, namely, Raja @ Selvaraj, being the Correspondent and Stanley Jones, being the Principal, respectively, indulged in demanding from the de-facto complainant sexual favours and according to her, these acts of accused took place in the educational institution, itself.
8. At this stage, this Court is not expected to probe into the fact as to whether the allegations in the complaint are true or false. During trial alone all these facts could be gone into and it is for the trial Court to come to a reasoned conclusion.
9. The point to be considered here is as to whether the earlier order dated 10.6.2006 passed by the Magistrate is an embargo for passing the subsequent order.
10. At this juncture, I recollect and call up the following maxims:
1. Res judicata pro veritate accipitur;
2.Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa;
The gist and kernal of these maxims are that once the Court adjudges the cause, subsequently, it should not adjudge the same cause.
11. Furthermore, the learned counsel for the revision petitioners also would correctly point out that the Court itself cannot approbate and reprobate; blow hot and cold. Once an order was passed by a Judge on a particular point, again he cannot pass an order on one other fresh application quite contrary to the order passed in the earlier application. Precisely and pithily the contention of the learned counsel for the revision petitioners is that the very application filed by the Additional Public Prosecutor should have been returned or rejected in limini in view of the earlier order passed by the Magistrate.
12. It is therefore just and necessary to look into the earlier order dated 10.6.2006 passed by the Magistrate. The gist and kernal of it is that he could not see that penal Sections 498 and
509 IPC were attracted in any manner in the wake of the averments as found set out in the F.I.R. It has to be seen as to whether ingredients of Section 4 of the Tamil Nadu Prohibition of (Harassment of Women) Act, and the ingredients, as contemplated under
Section 498 and
509 of IPC are one and the same. The answer is 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 concealing or detaining the wife of another man from (a) that man, or (b) any person having the care of her on behalf of that man.
2. Knowledge or reason to believe that she is a wife of another man
3.Such taking, enticing, concealing or detaining must be with intent that she may have illicit intercourse with any person."
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 extracted hereunder for ready reference:
"4. Penalty for harassment of woman Whoever commits or participates in or abets harassment of woman in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, part, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extended to three years and with fine which shall not be less than ten thousand 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 man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force)"
As such, reading of
Section 4 read with Section 2(a) of the Tamil Nadu Prohibition of (Harassment of Women) Act would clearly exemplify that this is a special and peculiar penal Section by itself, which cannot be equated in toto with
Section 498 of IPC.
13.
Section 4 of the said special enactment proscribes certain types of conducts as offence. To the risk of repetition, without being tautalogous, I would like to highlight that here the very nature of the complaint would attract
Section 4 of the Prohibition of (Harassment of Women) Act, as it is the specific case of the de-facto complainant, that she being a woman was harassed, 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.
14.
Section 216 of Cr.P.C. is wide enough to frame charge under
Section 4 of the Tamil Nadu Prohibition of (Harassment of Women) Act and the lower Court, in its discretion thought fit to frame charge under the same. Simply because at one point of time the prosecution as well as the de-facto complainant has not chosen to usher in
Section 4 of the said special enactment, there is no embargo for framing additional charge. Hence, I could see no merit in the revisions. Accordingly, the revision petitions are dismissed. Consequently, connected miscellaneous petitions are dismissed.
15. The learned counsel for the revision petitioners would make an extempore submission that a time limit may be fixed for early disposal, as the revision petitioners have been kept under tenterhooks.
16. I could see force in the submission made by the learned counsel for the revision petitioners. Hence, I direct the Magistrate concerned to dispose of the matter on merits, as per law, within a period of four months from the date of receipt of copy of this order.
msk To
1. The Additional District and Sessions Judge, Fast Track Court No.III, Tharapuram, Erode.
2.The Judicial Magistrate, Kangayam