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Gouresh Mehra-vs-The State Rep. By Tr on 25 October, 2010

Madras High Court Gouresh Mehra-vs-The State Rep. By Tr on 25 October, 2010

DATED: 25.10.2010

CORAM

THE HONOURABLE MR.JUSTICE C.T.SELVAM

Crl.O.P.No.13501 of 2010

and

M.P.No.1 of 2010

1. Gouresh Mehra

2. Susil Mehra .. Petitioners/ Accused 1 & 2

Vs

1. The State rep. by tr

Sub Inspector of Police

Cyber Crime Cell

CCB Egmore, Chennai. .. Respondent/ Complainant

2. Rajesh Arora .. 2nd Respondent/

Defacto Complainant

PRAYER: Criminal Original Petition filed under section 482 of Criminal Procedure Code seeking to call for the records in C.C. No.1622 of 2010 on the file of the learned Chief Metropolitan Magistrate, Egmore, Chennai and quash the charge sheet.

For Petitioners : Mr. A.R.L. Sundaresan, SC for

Mr. R. Sunil Kumar

For Respondents : Mr.I. Paul Nobel Kumar, G.A. (Crl.side) for R1

Mr. N.R. Elango, SC for

Mr. R. Vivekanandhan for R2

O R D E R

The petitioners who are father and son are arrayed as accused in case pending trial in C.C. No.1622 of 2010 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai, seek quash of proceedings against them. In such case, they stand charged of offences u/s. 506(i) IPC and 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. The offence u/s.506(i) IPC is said to be attracted, since these petitioners caused alarming obnoxious e-mails threatening kidnapping by hiring goondas to harm and rape the defacto complainants daughters. On allegations of causing untold hardship and mental harassment by means of obnoxious and threatening e-mails received by the defacto complainant, of the first petitioner not having shown any interest in having a normal marital relationship with his wife, who is the daughter of the defacto complainant, of subjecting her to huge embarrassment and mental torture by casting aspersions of her not being capable of having normal marital relationship and of her being mentally unsound and inept and harassing her to undergo medical tests, charge u/s.4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 is made.

2. The defacto complainants daughter and the first accused were married at Chennai on 23.11.2008. The couple set up residence at Bangalore but differences immediately arose. A complaint had been lodged by the wife of the first petitioner/ daughter of the defacto complainant before the Commissioner of Police, Bangalore complaining of dowry harassment in Cr.No.289 of 2009 under section 498A, 506 IPC and Section 3 of Dowry Prohibition Act on 17.6.2009. The defacto complainant had preferred a complaint before the Cyber Crime branch regarding the receipt of threatening e-mails, thought it appropriate not to pursue the same but to make an attempt at reconciliation keeping in mind the interests of his daughter, but on failure of such efforts, moved the Chief Metropolitan Magistrate, Egmore, who had directed investigation under section 156 (3) CrPC resulting in registration of Cr. No. 396 of 2009 and the filing of charge sheet. The first petitioner has moved an application for annulment of marriage before the Principal Judge, Family Court, Bangalore in M.C. No.1294 of 2009 on 25.05.2009 and on application for transfer in Transfer Petition No.848 of 2009, the Honble Apex Court under orders dated 19.10.2009 was pleased to transfer the same to the First Additional Family Court, Chennai to be tried along with case pending in M.C No.302 of 2009 filed by the first petitioners wife/ defacto complainants daughter seeking maintenance.

3. Learned Senior counsel Sri. A.R.L. Sundaresan, appearing for the petitioners informed that a transfer petition has been moved by the wife of the first petitioner/ daughter of the defacto complainant before the Apex Court seeking transfer of the case arising out of the complaint in Cr. No. 289 of 2009, Commissioner of Police, Bangalore, (subsequently registered in FIR No. 129 of 2009 dated 01.07.2009 on the file of Basavanagudi Mahila Police Station, Bangalore, Karnataka) to the Court of the Chief Metropolitan Magistrate, Egmore, wherein the present case is pending trial. He submitted that in respect of the same allegations, giving rise to the present case, part of the investigation was conducted by the Bangalore police who had registered FIR. No.129 of 2009, for offences u/s. 498-A, 506 of IPC and section 3 of Dowry Prohibition Act. He would take this Court through the Section 161(3) statements of the witnesses, the pleadings of the defacto complainant in the transfer application now pending adjudication before the Apex Court and the reference to the e-mails therein to substantiate such contentions. He would state that the allegations relating to threat through e-mails, spoken of in the complaint of the petitioner giving rise to the present case formed the subject matter of the earlier complaint preferred by his daughter before the Bangalore police. The contention is that there cannot be two parallel investigations and charge sheets in respect of the one and same offence. He would next submit that all but one of the allegedly offending e-mails were of May 2009. Even according to the defacto complainant, his earlier complaint to Cyber Crime police had not been pursued ostensibly owing to attempts at reconciliation in the best interests of his daughter. As regards the offending e-mail of December 2009, the very charge sheet informed that the source thereof was not known. Learned senior counsel would submit that in these circumstances the lower court ought not to have taken cognizance. None of the allegedly offending e-mails had been filed along with the charge sheet and the lower court without calling therefor and perusing the same, had proceeded to take cognizance, when the very foundation of the prosecution case was not before it. He would take exception to the fact that the certificate issued under Section 65-B of the Indian Evidence Act was not accompanied by the e-mails in respect of which such certificate had been issued. The Senior counsel would rely on the decisions in Noble Mohandass v. State, 1989 Crl.LJ 669, Amitabh Adhar & anr. v. Nct of Delhi & anr. 2000 Crl.LJ 4772 and Rajan v. State (2008) 3 MLJ (Crl.) 776 to inform that unless the person against whom the threat is issued, actually felt threatened or was alarmed, no offence under section 506 could be imputed. Learned senior counsel would take this court to the typed set towards demonstrating that the timing of the alleged messages did not tally with the timing of the ‘log in and log out’ particulars informed by the service provider. Submitting that the defacto complainant had approached the Magistrate by way of complaint after the first petitioner had moved a petition for annulment of marriage, such action is informed to be a malafide one. The final submission is that in the facts and circumstances of the present case the Tamil Nadu Prohibition of Harassment of Women Act would not stand attracted.

4. Sri. N.R. Elango, learned senior counsel appearing for the second respondent, while informing that a second complaint not always would be barred, would state that reference to the offending e-mails found in the complaint before the Bangalore police was merely by way of narration of facts and that such complaint dealt with the sufferings undergone by the defacto complainants daughter and relate to Sections 498A, 506 (ii) of IPC and section 3 of Dowry Prohibition Act. He would add that where the earlier complaint preferred by second respondent to the Cyber Crime branch has not seen fruition through filing of a charge sheet and where the accused neither stand acquitted or convicted pursuant thereto, Section 300 CrPC would not come into play. Thus, the action of the second respondent in forwarding the complaint to the Chief Metropolitan Magistrate, Egmore, Chennai was in order. Pursuant thereto, such court had ordered investigation u/s.156(3) Cr.PC., which resulted in the filing of the charge sheet. The actions threatened through the offending e-mails caused alarm to the second respondent and would amount to criminal intimidation within the meaning of Section 503 IPC. He would contend that the first complaint of the respondent regarding the offending E-mails was made on 08.05.2009 i.e. before the petition for annulment of marriage came to be filed by the first petitioner on 25.5.2009 and therefore the allegation of the complaint giving rise to the present case being an action in malafides, was wrong. The contradictions pointed out by the learned counsel for the petitioners could not be considered by this Court, at this stage. In this regard, the decision of the Honble Apex Court in State of Bihar & anr. v. P.P. Sharma IAS & anr. 1992 Supp (1) SCC 222, a case dealing with allegations of malafides against the investigating officer and wherein the earlier decision in State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 to the effect that the malafide or bias of the informant would be of secondary importance if the investigation produces unimpeachable evidence disclosing the offence had been touched upon, is relied on. It is submitted that in any event such question could not be now gone into. He would also rely upon the decision of the Apex Court in CBI v. R.S.Pai & anr. 2002 SCC (Crl.) 950 to inform that if some mistake is committed in not producing the relevant documents at the time of filing of the charge sheet, it always would be open to the investigating officer subsequently to produce the same with the permission of the court. The learned Senior counsel would complete his submissions by stating that the action complained of reflected indecent conduct punishable under the Tamil Nadu Prohibition of Harassment of Women Act, 1998 and would seek dismissal of the petition.

5. At the outset, it is to be informed that the Tamil Nadu Prohibition of Harassment of Women Act would not be applicable in the present case. The Act defines harassment as follows :

‘ "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.

Thus, the offending e-mails would amount to acts of harassment within the definition of the word in the Act. The definition is gender specific. Harassment under the act only can be committed by a man. But, it is noticed that the harassment suffered in the case is within the confines of the home/place, wherein a computer is housed. The accusation against the petitioners is u/s. 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. Section 4 reads as follows: ‘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, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than ten thousand rupees.’ [emphasis supplied].

6. This court is of the considered opinion that the words ‘any other place’ found in Section 4 are to be read ‘ejusdem generis’. The Tamil Nadu Prohibition of Harassment of Women Act, 1998 when originally enacted consisted of 10 sections and came into force on 30.07.1998. The offences u/s.4-A Harassment death, 4-B Harassment suicide and 4-C Presumption as to harassment death and abetment of harassment suicide have been included under subsequent amendments of the year 2002. Confining ourselves to the offence contemplated u/s. 4 and looking into the objects and reasons of the enactment not towards informing ourselves of the amplitude of the Act but towards understanding the idea behind it, we find that the enactment was intended as a measure to eradicate eve teasing in public places. The Act informs what would constitute harassment in general terms in Section 3 and while prescribing a penalty for harassment under section 4 restricts the same to harassment committed at particular places. Proceeding further, we find that u/s. 5 & 6, responsibilities are cast upon persons in-charge of educational institutions, temple or other places of worship, cinema theatre or any other precinct and upon the crew of a public service vehicle or vessel. This Court considers it reasonable to hold that Section 4 of the Act was meant to deal with offences occurring in the places informed or in places of like nature. If not so read, the mention of the particular places in section 4 would be rendered redundant and such could not have been the legislative intent. To put it differently, if the intent was to attract punishment for harassment at any and every place, section 4 simply could have read as follows : ‘4. Penalty for harassment of woman. — Whoever commits or participates in or abets harassment of woman in any place shall be punished .

7. In Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080, it has been explained that the rule of ‘ejusdem generis’ was that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. It was further observed that it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary. In Lila Vati Bai v. State of Bombay, AIR 1957 SC 521, it is informed that the rule of ‘ejusdem generis’ is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the legislature presumed to use the general words in a restricted sense; that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaning to be attached to words of general import, it becomes necessary to give a plain and ordinary meaning.

8. Applying the above principles this Court finds the cognizance of offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998, by the lower court to be bad in law.

9. This Court would agree with the contention of the learned senior counsel for the petitioners, that where even according to the charge sheet the source of the e-mail of December 2009 was not known, no prosecution in respect thereof would lie. Even so, the petitioners would have to face trial for offence of criminal intimidation allegedly committed through E-mails of May 2009.

10. A reading of the complaint preferred by the defacto complaint/ second respondents daughter at Bangalore, as also the averments made in the transfer petition before the Apex Court reflects only a reference to the e-mails and there is nothing to indicate that such matter was probed into by the investigating agency at Bangalore. In the attending circumstances, a second complaint cannot be found to be barred. The very charge sheet carries the text of one of the offending messages. Thus, where the Magistrate found sufficient cause to take cognizance, it is not for this Court to find that such cognizance suffers non-application of mind. However, we find that cognizance has been taken of offences u/s.4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 and u/s.506 (i) IPC. For the reasons stated supra, cognizance of offences u/s.4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 cannot stand.

11. Touching upon the decisions relied on it may be stated that the decision in Noble Mohandass v. State, 1989 Crl.LJ 669 relied upon by the learned senior counsel for the petitioners towards contending that no offence u/s.506 would stand attracted, was one arrived at the revisional stage and on appreciation of the evidence. The decision of the Delhi High Court in Amitabh Adhar & anr. v. Nct of Delhi & anr. 2000 Crl.LJ 4772 relied upon turned on the particular facts of the case and will not aid the petitioners herein. Again, the decision in Rajan v. State (2008) 3 MLJ (Crl.) 776, arose in a case wherein there was no whisper about criminal intimidation in the complaint and allegation there regards subsequently was made by a witness. In circumstances where the investigating agency upon completion of investigation has informed of commission of offence u/s.506 (i) IPC it would be for the petitioner/ accused to prove their innocence in the course of the trial. As found by the Apex court in CBI v. R.S.Pai & anr., 2002 SCC (Crl.) 950, it still would be open to the Investigating Agency to put up the relevant material before the trial court.

12. This Court would permit further proceedings in C.C. No.1622 of 2010 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai and in so far as the offence u/s. 506(i) IPC is concerned.

11. For the reasons herein above stated, this Criminal Original Petition shall stand ordered as above indicated. Consequently, the connected miscellaneous petition is closed.

avr

To

1. The Sub Inspector of Police

Cyber Crime Cell,CCB Egmore, Chennai.

2.The Public Prosecutor, High Court,

Chennai

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