Madras High Court
M.Arunachalam vs The Inspector Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on :27.07.2018
Orders Pronounced on:20.09.2018
CORAM:
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.811 of 2018
and
Crl.M.P.No.9205 of 2018
1.M.Arunachalam
2.Deepa ...Petitioners
Vs.
The Inspector of Police,
B-5 Police Station,
Singanallore,
Coimbatore - 641 005 ...Respondent
PRAYER: Petition filed under Section 397 read with 401 of the Criminal Procedure Code, to set aside the order dated 23.11.2017 passed in C.M.P.No.2869 of 2016 in C.C.No.70 of 2016 on the file of the Judicial Magistrate No.3 at Coimbatore and consequently discharge the petitioners from C.C.No.70 of 2016 on the file of the Judicial Magistrate No.3 at Coimbatore.
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For Petitioners : Mr.K.M.D.Muhilan
For Respondent : Mr.R.Surya Prakash,
Govt.Advocate (crl.side)
O R D E R
The accused are the revision petitioners herein.
2. This petition is filed against the order passed in C.M.P.No.2869 of 2016 in C.C.No.70 of 2016 on the file of the learned Judicial Magistrate No.3, Coimbatore, whereby, the discharge petition was dismissed and hence, the revision.
3. The respondent-State has filed a final report against these petitioners alleging commission for offence under Sections 447, 294(b), 323 and 506(ii) of I.P.C and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act.
4. The case of the prosecution in brief is as follows:-
i) on 12.12.2013 at 07.00 hrs at Door No.49-51, Maruthachalam Pillai Street, Bazaar Street, Singanallur, Coimbatore City within B5 Singanallur PS the accused A1 and A2 with an intention to commit offence trespassed inside the house, thereby the accused A1 and A2 have committed an offence punishable under Section 447 of I.P.C.
ii) That on same date, time place and during the same course of transaction the accused A1 abused witness Thangavel (P.W.1) in a filthy language as 'Vz;lh njtpoah igand eP vd;dplk; gzkh nfl;fpwha;/ vd;nky; nf!; ntW nghl;oUf;fpwha;' thereby the accused A1 has committed an offence punishable under Section 294(b) of I.P.C.
iii) That on same date, time place and during the same course of transaction the accused A2 assaulted witness Chandrika (P.W.2) with hands on her person, thereby the accused A2 has committed an offence punishable 323 I.P.C.
iv) That on same date, time place and during the same course of transaction the accused A1 at knife point threatened witness Thangavel with dire consequences to eliminate him, thereby the accused A2 has committed an offence punishable under Section 506(ii) I.P.C.
v) That on same date, time, place and during the same course of transaction the accused A2 dragged the hair of witness Chandrika (P.W.2) and assaulted her with hands, also removed her saree. Thereby the accused A2 has committed an offence punishable under Section 4 of Women Harassment Act. Therefore the accused A1 and A2 have committed the following offences:
A1 447, 294(b), 506(ii) IPC and 4 of Woman Harassment Act A2 447, 323 IPC
5. The learned counsel for the petitioners have submitted that for the alleged charge under Section 294(b) of I.P.C, it ought to have been alleged or uttered in a public place or under the public place. While, in the instant case, it was inside the house and therefore, 294(b) of I.P.C is not applicable to the facts and circumstances of the case and further contended that since the alleged incident is said to have taken place inside the house and wherein, defacto-complainant is admittedly tenant of the accused, while the accused are owners of the house, and hence, the private dwelling house is not falling within the purview of Section 4 of the Tamil Nadu Prevention of Harassment of Woman Act and with regard to alleged charge under Sections 447, 506(ii) and 323 of I.P.C, there is no positive evidence in support of these charges.
6. The learned Government Advocate (crl.side) has submitted that Section 294(b) I.P.C is also applicable to the incident said to have taken place or if the accused uttered filthy language against the defacto-complainant in or near any public place causing annoyance to the named witnesses in the final report and hence, prayed for dismissal of the petition.
7. Heard both sides and perused the records.
8. The points for consideration is that:-
i) Whether there is a sufficient material to frame the charge under Section 294(b) of I.P.C against the accused?
ii) Whether there is a sufficient material to frame the charge under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act against the accused?
iii) Whether the order passed by the trial Court in respect of Sections 323 and 506(ii) I.P.C is sustainable in law?
iv) To what other relief the accused are entitled to?
9. The case of the prosecution is that the petitioners/Accused have filed the above petition to discharge them from the offences punishable under Sections 294(b), 323, 448, 506(ii) of I.P.C and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998.
i) On 27.05.2010, the defacto complainant Thangavel paid Rs.3,75,000/- through his wife as lease amount (Bokiam Agreement) to accused No.1 and occupied his premises at Ground Floor at Door No.49-51, Maruthachalam Pillai Street, Bazaar Street, Singanallur, Coimbatore for a term of 11 months, which was reduced into writing. After expiry of the said period the defacto complainant Thangavel showed his willingness to vacate the premises and asked the 1st petitioner/A1 to return the said Bokiam amount as agreed in the said Bokiam Agreement. But the 1st petitioner/Accused No.1 did not listen to him and uncared to repay the same with ulterior motive.
ii) As per the statement of witness, P.W.1, at this juncture, on 12.12.2013 at 0700 hrs at Door No.49-51, Maruthachalam Pillai Street, Bazaar Street, Singanallur, Coimbatore city within B5 Singanallur PS the petitioners/Accused No.1&2 with intent to commit an offence trespassed into the house of the defacto complainant and thereby the petitioners have committed an offence punishable under Section 448 of I.P.C.
iii) During the same course of action A1 abused the defacto complainant in filthy language as 'Vz;lh njtpoah igand eP vd;dplk; gzkh nfl;fpwha;/ vd;nky; nf!; ntW nghl;oUf;fpwhah' and also at knife point given a life threat to the defacto complainant with dire consequences to eliminate him and thereby committed an offence punishable under Sections 294(b) and 506(ii) of I.P.C. That on same date, time, place and during the same course of transaction A1 dragged hair of the defacto complainant's wife Chandrika and assaulted her with hands and also removed her saree and thereby committed an offence punishable under Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998.
iv) During same course of action, A2 assaulted the witness Chandrika with hands and thereby committed an offence punishable under Section 323 of I.P.C. The charge sheet discloses all the offences clearly as against the petitioners/accused.
v) Section 294(b) is clear that whoever to the annoyance of others utters words in or near any public place is punishable. The said section does not limit its hands particularly only on public place and enlarges it to or near any public place. In the instant case, the petitioners/accused have uttered filthy language as against the defacto complainant and his wife in and nearby the public place causing annoyance to the neighbours and friends.
10. It is further alleged that during the same course of action A2 assaulted witnesses Chandrika with hands and thereby committed under Section 323.
11. After perusing the complaint and the F.I.R, the place of the occurrence for the alleged occurrence of the word 'Vz;lh njtpoah igand eP vd;dplk; gzkh nfl;fpwha;/ vd;nky; nf!; ntW nghl;oUf;fpwhah' is inside the house.
12. In the decision reported in 2015(1) Crimes 281 (Ker) Latheef Vs.State of Kerala wherein it has been held that:-
Indian Penal Code, 1860- Sections 292(1) & 294(b) - Abusive words or humiliating words or defamatory words will not as such amount to obscenity as defined under the Code. To make the words obscene, the words used must involve some lascivious elements arousing sexual thoughts or feelings, or the words must have the effect of depraving persons and defiling morals by sex appeal or lustful desires. (emphasis supplied) In the decision reported in Pawan Kumar V State of Haryana (1996) 4 SCC 17:1997 SCC (cri)583 has held that Ingredients of offence under Section 294 I.P.C are spelled out in the following manner. In order to secure a conviction, the provisions of Section 294, I.P.C require two particulars to be proved by the prosecution, namely, `(i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song or word in or near any public place; and
(ii) has so caused annoyance to others. If the act is not obscene, or is not done in any public place, or the song recited or uttered in or near any public place or that it causes no annoyance to others, no offence is committed.
13. The very short point for decision in this revision is whether the words alleged to have been used by the revision petitioner will constitute "obscenity" as defined under the law.
In P.T.Chacko V. Nainan Chacko reported in (1967 KLT 799) the Kerala High Court held that, "the test of obscenity is whether the tendency of the matter charged as obscenity to deprave and corrupt those whose minds are open to-such immoral influences.
" In Sangeetha Lakshmana V. State of Kerala reported in (2008 (2) KLT 745) the Kerala High Court has been held that, "in order to satisfy the test of obscenity, the words alleged to have been uttered must be capable of arousing sexually impure thoughts in the minds of its hearers".
14. Since the alleged utterance of the words has taken inside the victim's house and is not a public place or nearby the public place, I am of the considered view that Section 294(b) of I.P.C is not attracted and to that extent, the order of the trial Court is liable to be set aside and Point No.I is answered accordingly.
15. Point No.II:-
As per the complaint as well as the statement of P.W.1 and P.W.2, the occurrence was committed at the house of the victim, which is not a place particularly covered by Section 4 of the Act.
16. To attract the offence under Section 4 of Tamil Nadu Prohibition Harassment of Woman Act, 1998 offence must have taken place at a place particularly covered by the Section. A private dwelling house is not one of such places. Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 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 thousand rupees".
This Court by its order dated 25.10.2010 in Crl.O.P.No.13501 of 2010 in Gouresh Mehra V. The State, has held as follows:-
"This Court is of the considered view 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 under Section 4-A Harassment death, Section 4-B been included under subsequent amendments of the year 2002. Confining ourselves to the offence contemplated under Section 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 under Sections 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 me crew or 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 abete 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 Lilavali 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".
17. Accordingly, in view of the decision of this Court in Anbalagan V. State, represented by Inspector of Police reported in 2012(1) MWN (Cr.) 154, In the facts and circumstances of this case, as could be seen from the records and statement of witness, I am of the considered view that offence under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act is not attracted and accordingly, the finding rendered by the trial Court in this regard is liable to be set aside. However, with regard to charge under Sections 447 and 323 I.P.C, it is a matter for evidence that has been to be gone into by the Judicial Magistrate at the time of the trial and hence, the order of the trial Court in dismissing the discharge application in entirety is set aside and it is observed that these petitioners/accused shall stand discharged for the alleged offence under Section 294(b) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. However, in respect of charge under Sections 447, 323 and 506(ii) of I.P.C, they have to face the trial and to the limited extent as indicated above.
18. Both the appellants/accused shall stand discharged of the both the charges under Section 294(b) and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act and accordingly, this Criminal Revision Petition is partly allowed and the order of the trial Court is set aside to the limited extent and it is open to the Magistrate to deal with the offence only under Sections 447, 323 and 506(ii) of I.P.C. Consequently, connected Miscellaneous Petition is closed.
20.09.2018 nvi To The Judicial Magistrate No.3 at Coimbatore RMT.TEEKAA RAMAN,J., nvi order in Crl.R.C.No.811 of 2018 and Crl.M.P.No.9205 of 2018 20.09.2018