Madras High Court
Dr.N.B.Sekar vs Dr.Ajitha Sekar on 14 June, 2007
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14/06/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.(MD).No.387 of 2006 and Crl.M.P.(MD).No.2900 of 2006 Dr.N.B.Sekar ... Petitioner Vs 1.Dr.Ajitha Sekar 2.The Inspector of Police, Vadasery Police Station, Nagercoil. ... Respondents Prayer Petition filed under Section 397 and 401 of the Code of Criminal Procedure, against the order dated 26.12.2005 passed in R.P.No.22 of 2005 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil, modifying the order dated 04.10.2005 passed in Cr.M.P.No.5163 of 2005 on the file of the learned Judicial Magistrate No.II, Nagercoil. !For Petitioner : Mr.S.Subbiah ^For Respondents : Mr.P.Rajendran Govt. Advocate (Crl.Side) for R.2 Mr.Arumuga Perumal, Senior Counsel for S.Jayakumar, for R.1 :ORDER
This Criminal Revision Case is focussed as against the order dated 26.12.2005 passed in R.P.No.22 of 2005 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil, modifying the order dated 04.10.2005 passed in Cr.M.P.No.5163 of 2005 on the file of the learned Judicial Magistrate No.II, Nagercoil.
2. On consent of both the parties, the main Criminal Revision Case itself, has been taken for final hearing and heard both sides in entirety.
3. A re'sume' of facts absolutely necessary for the disposal of this petition would run thus:
The petitioner herein is the husband of the first respondent. It so happened that there was some rift in the matrimonial relationship between the husband and the wife which resulted in the wife, the first respondent herein lodging the complaint with the police who took it on file in Cr.No.40 of 2004 and proceeded with the matter. Ultimately, the police laid the police report in terms of Section 173 Cr.P.C for the offences under sections 376(D), 498(A) and 506(2) I.P.C as against the petitioner/accused.
4. Even before the learned Magistrate taking it on file, the de facto complainant sensing that the police simply filed the police report only for the offences punishable under Section 498(A) I.P.C and not for the offences under Section 506(2) and 376(D) I.P.C, she has filed the protest petition under Section 173(8) Cr.P.C, praying the Magistrate to order for further investigation. The learned Magistrate after hearing the de facto complainant and the learned Public Prosecutor concerned, passed orders. An excerpt from it, would run thus:
"7.vdnt tHf;fpd; jd;ikiaa[k;> R{H;epiyiaa[k; fUj;jpy; bfhz;L ,.j.r gphpt[ 498(v) gphptpid jtph;j;J ntW vJt[k; ,t;tHf;fpy; ,.j.r gphpt[ 376 (o) -d; fPnHh my;yJ ntW ve;jg; gphptpd; fPnHh tHf;F vGe;Js;sjh vd;gijf; Fwpj;J kPz;Lk; kW g[yd; tprhuiz bra;J ,Wjp mwpf;if jhf;fy; bra;ayhk; vd ePjpkd;wk; jPh;khdpg;gjhy; kDjhuh; jhf;fy; bra;Js;s Ml;nrgid kDit mDkjpj;J ,.j.r 376(o) d; fPH; tHf;F vGe;Js;sjh vd;gJ Fwpj;J kl;Lk; g[ydha;t[ bra;J jpUj;jg;l;l ,Wjp mwpf;if jhf;fy; bra;a[khW tlnrhp fhty; epiya Ma;thsUf;F cj;jutplg;gLfpwJ. mt;thW g[yd; tprhuiz nkw;bfhs;tjw;F trjpahf jhf;fy; bra;ag;gl;l ,Wjp mwpf;ifiaa[k;> kW g[ydha;t[f;F ntz;o jpUg;gp mDg;gg;gLfpwJ."
5. Being aggrieved by and dissatisfied with such an order passed by the learned Magistrate, the defacto complainant petitioned the learned Sessions Judge for invoking his revisional jurisdiction who numbered it as C.R.P.No.22 of 2005. After hearing the Revision petitioner and the learned Public Prosecutor ultimately, he passed orders as prayed by the de facto complainant, in her petition under Section 173(8) Cr.P.C.
6. The petitioner herein, who was not a party in those earlier proceedings after coming to know of the order passed by the learned Sessions Judge, has filed this Revision petition on the following main grounds among others:
The learned Sessions Judge committed illegality in allowing the revision filed by the de facto complainant and that to without hearing the accused, the petitioner herein. Ordering further investigation without any basis, is yet another illegality committed by both the Courts below. The Magistrate had no right to order further investigation as per the Code of Criminal Procedure. Ex facie and prima facie, no case is found made out from the records for the offence under Section 376(D) I.P.C, even then, the learned Magistrate did choose to order so and the learned Sessions Judge further enlarged the scope of further investigation without any basis.
7. The point for consideration in this revision would run thus:
(i) Whether the Magistrate has got power to order further investigation under Section 173(8) Cr.P.C?
(ii) Whether ex facie and prima facie the offence under Section 376(D) I.P.C is attracted in the facts and circumstances of this case and whether there is any illegality in the order passed by both the Courts below?
8. Heard both sides.
Point No:(i)
9. This point could be answered in view of the trite propositions of law laid down by the Apex Court in catena of decisions. I would like to refer to the decision of the Honourable Apex Court in Popular Muthiah v. State reported in (2006) 7 Supreme Court Cases 296. An excerpt from it, would run thus:
"54. We have noticed hereinbefore that the jurisdiction of the learned Magistrate in the matter of issuance of process or taking of cognizance depends upon existence of conditions precedent therefor. The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final for;
(ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefore; and (iv) to direct reinvestigation into the matter."
10. The perusal of the aforesaid decision would show that the Magistrate has got power under section 173(8) Cr.P.C to order further investigation at the request of the de facto complainant and hence, in such a case, I could see no illegality on the part of the Magistrate in exercising his power under section 173(8) Cr.P.C in ordering further investigation and accordingly, this point is answered.
Point No:(ii)
11. For the better appreciation, Section 376(D) I.P.C is extracted hereunder:
"376-D. Intercourse by any member of the management or staff of a hospital with any woman in that hospital.- Whosoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine.
Explanation- The expression "hospital" shall have the same meaning as in Explanation 3 to Sub-Section (2) of Section 376." (emphasis supplied)
12. The main ingredient of Section 376(D) I.P.C could be detailed thus:
Among the various ingredients constituting the offence under Section 376(D) I.P.C, so far this case is concerned, the following ingredient is of utmost importance, the person being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital.(emphasis supplied)
13. Both the learned counsel for the rival parties drew my attention in detail to the F.I.R, which is part of the typed set and it discloses that absolutely, there is no averment attracting the aforesaid ingredient extracted supra.
14. In fact, the case is other way about. The said Nurse Saridha was virtually, according to the learned Counsel for the petitioner, is a concubine of the accused, the husband of the first respondent herein. When such is the position and Saridha herself is having no grievance that she has been misused by the revision petitioner/accused herein by taking undue advantage of his position as Doctor on Management of the hospital, by no stretch of imagination, Section 376(D) I.P.C could be held to have been attracted towards the facts set out in this case. As such, both the Courts below clearly fell into error in ordering further investigation relating to the offence punishable under Section 376(D) I.P.C.
15. The learned Counsel for the first respondent would develop his argument to the effect that there are various other offences such as the ones under Section 506(Part I) , 323, 324 etc., and that the police should necessarily probe into it and the police was not justified in simply filing the report for the offences punishable under Sections 498(A) I.P.C only. He would also further stress upon the fact that the F.I.R itself would disclose that the said Saridha was also an abettor of these offences. When this Court posed a question whether there is any complaint as against the said Saridha, the learned Counsel for the first respondent/de facto complainant would expound and explicit that the general purport of the complaint would warrant the police to array her as abettor.
16. The learned counsel for the first respondent would submit that the over all reading of the F.I.R would convey the meaning that the first respondent intended that Saridha should also be arrayed as accused as abettor.
17. This Court while exercising its revisional jurisdiction, is not inclined to delve deep into the fact whether the said Saridha could be arrayed as an abettor, but what I would like to highlight is that the learned Magistrate's decision in ordering investigation under Section 376(D) I.P.C is totally one without any basis and there is no legal ratiocination backing such direction. Regarding further investigation relating to the other offences and also as to whether Saridha should be added or not as accused, the issue is left open and it is for the police to look into the matter and arrive at a conclusion and file the police report.
18. With the above observations, this Criminal Revision Case is disposed of. Consequently, connected Crl.M.P.(MD).No.2900 of 2006 is also closed.
rsb
1.The Inspector of Police, Vadasery Police Station, Nagercoil.
2.The Sessions Judge, Kanyakumari Division at Nagercoil.
3.The Judicial Magistrate No.II, Nagercoil.
4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.