Madras High Court
Ganesan vs The State Represented By on 1 February, 2019
Equivalent citations: AIRONLINE 2019 MAD 637
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 20.11.2018
PRONOUNCED ON : 01.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.R.C.No.733 of 2009
Ganesan ... Petitioner / Appellant / Single
Accused
-vs-
The State Represented by,
The Inspector of Police,
Kabisthalam Police Station,
Thanjavur District.
(Crime No.381 of 2000) ... Respondent / Respondent /
Complainant
PRAYER: Criminal Revision Case filed under Sections 397 and 401
Cr.P.C., praying to allow the revision petition and set aside the judgment
dated 06.04.2009 made in C.C.No.197 of 2005 on the file of the learned
Judicial Magistrate, Kumbakonam as confirmed by the judgment dated
11.09.2009 made in Crl.A.No.20 of 2009 on the file of the I-Additional
Sessions Judge (Protection of Civil Rights), Thanjavur.
http://www.judis.nic.in
2
For Petitioner : Mr.C.Mayilvahana Rajendran,
for Mr.K.Seemaraj.
For Respondent : Ms.M.Anantha Devi,
Government Advocate (Criminal Side)
ORDER
The convicted accused is the revision petitioner herein. He has filed this Criminal Revision Case, to set aside the judgment dated 06.04.2009, made in C.C.No.197 of 2005 on the file of the learned Judicial Magistrate, Kumbakonam, as confirmed by the judgment dated 11.09.2009, made in Crl.A.No.20 of 2009 on the file of the 1-Additional Sessions Judge (Protection of Civil Rights), Thanjavur.
2. Heard the learned counsel appearing for the revision petitioner and the learned Government Advocate (Criminal side) appearing for the respondent and perused the records.
3. The learned counsel appearing for the revision petitioner submitted that sufficient opportunity was not given for the accused to defend his case and there was no cross-examination of private prosecution witnesses, namely, P.W.1 to P.W.3 and none of the police witnesses viz., the person, who is said to have received the complaint; registered the First Information Report regarding the remand and http://www.judis.nic.in 3 conducted the investigation have been examined. None of the police witnesses have turned up to depose before the Court regarding the progress made on the line of the investigation and despite notice sent by the learned Judicial Magistrate, the police have not turned up for giving evidence and therefore, for want of fair trial, the accused may be acquitted.
4. Ms.M.Anantha Devi, the learned Government Advocate (Criminal side) appearing for the respondent police submitted that the contents of the words uttered by the accused against P.W.1-victim girl is clearly amounts to eve teasing as defined prior to the amendment and in the absence of any cross-examination on the point, the trial Court has concluded the trial and laid conviction and sentence of fine only was imposed and the Lower Appellate Court has also confirmed the same. The said finding does not call for any interference.
5. After hearing both the parties and also perusing the records, I find that after the private prosecution witnesses, namely, P.W.1 to P.W.3, summons have been issued to the Kabisthalam Police Station for giving evidence. Despite several reminders, the police have not turned up to give evidence. It appears from the records of the Lower Court that the learned Judicial Magistrate also addressed a letter to the http://www.judis.nic.in 4 Superintendent of police. However, they also turned futile. Accordingly, the Magistrate has closed the evidence and posted for proceedings under 313 Cr.P.C.
6. From the records, it is also seen that at this juncture, through an Advocate, the accused has preferred the petition to recall the evidence of P.W.1 to P.W.3. However, though they were present, they were not cross-examined and hence, suo motu prosecution side evidence has been closed by the trial Magistrate and after hearing the parties and as the learned counsel for the accused has not appeared for arguments, suo motu passed orders.
7. The learned counsel for the revision petitioner contended that the scene of the crime projected in the final report does not fall under Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act, 1998 and fair trial was denied for the accused.
8. On perusal of the prosecution witness and the final report filed by the respondent police, it is seen that the petitioner/accused was working as a Teacher and taking Tuition to the students. It is alleged that on 08.11.2000 at about 5.30 p.m., the petitioner said to have uttered the words against PW.1 that as she was having mole in her http://www.judis.nic.in 5 forehead, she would have a mole in her private part too. It is further alleged that he asked PW.1 to check it and inform him. Pursuant to the complaint given by PW.1, a case was registered in Crime No.381 of 2000 on t he file of the respondent under Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act, 1998. Upon completion of investigation a charge sheet was filed against the petitioner/accused before the Judicial Magistrate, Papanasam and the same was taken on its file in S.T.C.No. 304 of 2001. Subsequently, the case was transferred to the Judicial Magistrate No.III, Thanjavur and the same taken on its file in S.T.C.No. 3280 of 2002. Thereafter, the case was transferred to the Judicial Magistrate, Kumbakonam and the same was taken on its file in C.C.No. 197 of 2005.
9. During the trial three witnesses have been examined and one Exhibit was marked. The judicial Magistrate, Thanjavur by its judgment dated 06.04.2009 convicted the petitioner/accused under Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act, 1998 and sentenced him to pay a fine of Rs.10,000/-, in default, to undergo two months rigorous imprisonment. As against the judgment passed by the Trail Court, he filed Appeal before the Sessions Court, Thanjavur and the same was taken on its file in C.A.No.20 of 2009. The learned I-Additional Sessions Judge(Protection for Civil Rights), Thanjavur, by its judgment http://www.judis.nic.in 6 dated 11.09.2009 confirmed the judgment dated 06.04.2009 passed by the trial Court and dismissed the appeal prepared by the petitioner/accused. As against the judgment passed by the trial Court and lower appellate Court, the petitioner/accused filed this revision.
10. It is to be stated that the Tamilnadu Eve-Teasing Act, 1988, has been amended and the word "eve-teasing" has been deleted any by way of amendment, it is amended as "Harassment of Woman" by the Act 39 of 2000. The date of alleged occurrence is on 08.11.2000 and therefore Tamilnadu Prohibition of Eve-Teasing Act is applicable and the final report filed by the respondent police and charge framed by the Courts below are just and proper.
11. The trial Court has framed the charge, wherein it is stated that while witness Manjula, a school going girl was taking tuition with the accused he, being a school Teacher by profession made signs to witness Manjula to come to staircase and when she came near, he uttered the following words:
"cdf;F bew;wpapy; kr;rk; ,Uf;fpwJ/ mg;gobad;why; bgz; FwpapYk; cdf;F kr;rk; ,Uf;Fk;/ ,Uf;fh"
and when the witness, who was shocked and ashamed tried to leave the place, the accused again uttered the filthy words; http://www.judis.nic.in 7 "fPnH KoapUe;jhy; nc&t; bra;Jtpl;L ghh;j;J kr;rk; ,Uf;fh ,y;iyah vd;W vd;dplk; brhy;".
and thus the accused appears to have committed the offence punishable under Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act, 1998.
12. In the written argument filed after reserving the orders, the learned counsel for the petitioner relied upon the decision by this Court in G.Logeswaran vs. State reported in 2018 (3) MNW (Cr) 619 and contended that the scene of crime projected in the charge sheet does not fall under Section 4 of the Tamilnadu Prohibition of Harassment of Woman Act. The case relied upon by the learned counsel for the revision petitioner is relating to sending of photograph message through sms in a mobile phone which was held to be filed under Section 4 of the said Act. Here, in the case on hand, the scene of the crime, where the accused has uttered such a filthy language by touching upon the modesty of the school going children, while the accused happened to be the tuition master, is in the staircase.
13. With regard to the scene of crime, which falls under Section 4 of Tamilnadu Prohibition of Eve- Teasing Act, which has been subsequently amended as Tamilnadu Prohibition of Harassment of Woman Act, in the decision reported in 2006 (4) CTC 374 in the case of http://www.judis.nic.in 8 Basheer Ahamed and others vs. State it has been held that "at any place” mentioned in Section 4 of the Act means, wherever occurrence has taken place” as the scene of the occurrence is the “staircase of the house of the tuition master”, namely, the accused and in view of the decision as cited in the Basheer Ahamed case cited supra and the facts and circumstances and also the ratio laid down in the Basheer Ahamed case cited supra is clearly applicable to the facts and circumstances of the case on hand.
14. Accordingly, I have no hesitation to held that the “staircase” of the accused house, which is projected “scene of crime” is very well fall under Section 4 of the said Act and the conviction by the Courts below is justifiable and the earlier decision does not applicable to the facts and circumstances of the case (Logeswaran case) and hence this Court holds that the scene of the crime namely, the “stair case” of the house of the accused falls within the definition of Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act and (now Tamilnadu prevention of Harassment of Woman Act.
15. To prove the charges, the victim girl-PW1 entered into the witness box and deposed that she resides with her father PW3-Selvaraj at Umayalpuram, while she was studying 8th standard in Umayalpuram http://www.judis.nic.in 9 High School, the accused was working there as Maths teacher. He was taking tuition also on the upstairs of his house. PW.1, PW2-Bharathi and some other girls were taking tuition with the accused. On 08.11.2000 at about 5.30 p.m. while PW1 was studying on the upstairs, the accused made signs to her suggesting to come to staircase. When she came near the accused, he uttered the following words:
"cdf;F bew;wpapy; kr;rk; ,Uf;fpwJ/ mg;gobad;why; bgz; FwpapYk; cdf;F kr;rk; ,Uf;Fk;/ ,Uf;fh"
when grief striken, PW1 tried to go upstairs, the accused again uttered the following filthy words:
"fPnH KoapUe;jhy; nc&t; bra;Jtpl;L ghh;j;J kr;rk; ,Uf;fh ,y;iyah vd;W vd;dplk; brhy;".
16. PW2-Bharathi has revealed that when she noticed that PW1 is running down from the stairs with the crying, she revealed the conduct of the accused and narrated the utter words spoken by the accused and thereafter on information to the father of PW1, PW3-father lodged the complaint.
17. The complaint given by the PW1 was marked as Ex.P1 based upon which the respondent police have investigated and filed the charge sheet before the Court as stated supra.
http://www.judis.nic.in 10
18. It is seen from the Court case bundles that though the trial case was posted in the year 2000, examination of witnesses could not be commenced till 2007 for multiple reasons. PW1 to PW3 have been examined on 04.04.2007 and no cross-examination was done by the defence counsel for the reasons best known to them. Thereafter the police witness have not turned up. Despite the best efforts and communications and letters addressed by the Judicial Magistrate to the Inspector of Police and Superintendent of Police nothing has done and hence it appears that the trial Magistrate has closed the prosecution witness and posted for 313 Cr.P.C. proceedings.
19. Thereafter it appears that they have filed petitioner to recall PW1 to PW3. When PW3 was present, for the reasons best known the learned counsel for the defence has not examined him and therefore, the matter was posted for arguments. Despite several adjournments given, the defence counsel has not come forward to argue the case so the accused was asked to take steps and further suo motu, the case has been closed and orders have been pronounced, whereby he was convicted for the offence under Section 4 of the Tamilnadu Prohibition of Eve-Teasing Act and fine of Rs.10,000/- was awarded. http://www.judis.nic.in 11
20. It is relevant to mention the case reported in ILR (1983) Madras 245 (full bench) in State vs. Veerapan has hold that the Magistrate can close the prosecution if gross negligence or recalcitrance to produce the prosecution witness. Based upon the said decision both the Courts below held that the accused has been given fair trial.
21. After going through the evidence of the PW1 and Ex.P1, this Court finds that the case of the prosecution has been proved beyond reasonable doubt and for the reasons best known, the defence counsel has not chosen to cross examine PW1. Even when the recall petition was allowed after questioning 313 Cr.P.C., proceedings, when the prosecution witness was present, for the reasons best known, the defence counsel has not cross-examined and hence, this Court has no hesitation to hold that the trial Magistrate has conducted the trial in all fairness and it appears to be the deliberate action on the part of the accused and his counsel in not cross-examining the prosecution witness. When that be so, the accused now allowed to say denial of fair trial, as it appears from the records that sufficient chances have been given running into several months and hence the plea of want of fair trial does not stand in view of the factual position as extracted supra.
22. In view of the clear and cogent evidence of PW1 and http://www.judis.nic.in 12 Ex.P1, the conviction laid under Section 4 of the Tamilnadu Prohibition of Eve Teasing Act, 1988 and the sentence of fine only was awarded and such a fine of Rs.10000/- cannot be termed as excessive and hence both the grounds raised by the learned counsel for the petitioner is hereby rejected.
23. The evidence of the PW1 coupled with Ex.P1 proved the charge beyond reasonable doubt and on the facts narrated from the lower Court records in the proceedings paragraphs clearly demonstrate that the trial Court has afforded a fair opportunity and conducted the trial in the fair manner. In other words, there is no denial of fair trial of the accused as contended by the learned counsel for the revision petitioner and hence the conviction and sentence passed by the trial Magistrate, which is confirmed by the Sessions Court is hereby confirmed. The fine amount imposed is kept intact.
24. In the result, this Criminal Revision is dismissed.
01.02.2019
Index : Yes / No
Internet : Yes / No
PJL
http://www.judis.nic.in
13
To
1.The I-Additional Sessions Judge
(Protection of Civil Rights),
Thanjavur.
2.The Judicial Magistrate,
Kumbakonam.
3.The Inspector of Police,
Kabisthalam Police Station,
Thanjavur District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
14
RMT. TEEKAA RAMAN, J.
PJL
PRE-DELIVERED ORDER
MADE IN
CRL.R.C(MD).No.733 of 2009
01.02.2019
http://www.judis.nic.in