Madras High Court
D.Babu vs State By on 12 March, 2019
Author: P.Rajamanickam
Bench: P.Rajamanickam
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.10.2018
PRONOUNCED ON : 12.03.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM
Crl.OP.No.2519 of 2013
and
M.P.Nos.1 and 2 of 2013
D.Babu ... Petitioner
Vs.
1. State by
Inspector of Police,
Pollachi East,
Pollachi Police Station,
Pollachi.
2. Kannammal,
(2nd respondent is impleaded as
per the order of this Court dated
23.08.2017 made in
Crl.MP.No.9216/2017 in
Crl.OP.No.2519 of 2013) ... Respondents
PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records in C.C.No.271 of 2012 pending on the file of
the Judicial Magistrate No.1, Pollachi and to quash the same.
For Petitioner : Mr.V.K.Sathiamurthy
For Respondents : Mr.T.Shunmugarajeshwaran
Government Advocate (Crl.Side) for R1
: Mr.R.Sree Rangan for R2
http://www.judis.nic.in
2
ORDER
This petition has been filed by the accused No.2 to quash the proceedings against him in C.C.No.271 of 2012 on the file of the Judicial Magistrate No.1, Pollachi.
2. The second respondent had lodged a complaint before the first respondent on 15.06.2012 alleging that in the magazine, "Crimes This Week", a news item reported that the second respondent who is employed as Superintendent in the Office of the District Educational Officer at Pollachi had indulged in helping the Superior Officer to obtain bribe and she is closely associated with them and thereby caused harrasment to her and also insulted her modesty. Based on the said complaint, the first respondent had registered a case in Crime No.233 of 2012 under Section 509 IPC read with Section 4 of the Tamilnadu Prohibition of (Harassment of Women) Act, 1998, and took up the matter for investigation. After investigation, the first respondent had filed a charge sheet stating that the accused Nos.1 and 2 have committed offences punishable under Section 509 IPC read with Section 4 of Tamilnadu Prohibition of (Harassment of Women) Act, 1998. Based on the said charge sheet, the learned Judicial Magistrate No.1, Pollachi had taken the case on file in C.C.No.271/2012.
3. The accused No.2 has filed the present petition under Section 482 of Cr.P.C stating that he is only a Printer and he had no knowledge, contact http://www.judis.nic.in 3 or any intention about the incident which was published in the magazine and he could not be prosecuted for the alleged offences.
4. The first respondent has filed a Status Report stating that a news has been published in the magazine "Crimes This Week" with an intention to insult the modesty of the second respondent and also caused harassment and hence an F.I.R has been registered against the petitioner herein and one John Kennady ( accused no.1) under Section 509 IPC read with Section 4 of Tamilnadu Prohibition of (Harassment of Women) Act, based on the complaint given by the second respondent. It is stated that the petitioner had obtained anticipatory bail before this Court in Crl.OP.No.15826 of 2012 dated 17.12.2012 but subsequently during Trial, he has not appeared before the Trial Court and hence a Non-Bailable Warrant has been issued on 26.04.2014 and the same is still pending. It is further stated that after investigation, a charge sheet has been filed against the accused No.1 and the petitioner herein under Section 509 IPC read with Section 4 of Tamilnadu Prohibition of (Harassment of Women) Act, 1998 and the case was taken on file in C.C.No.271 of 2012 on the file of the Judicial Magistrate No.1 Pollachi and since Non-Bailable warrant is pending against the petitioner herein, no progress has been made in the said case.
5. The second respondent has filed a counter stating that she was working as a Superintendent in the Office of the District Educational Officer at http://www.judis.nic.in 4 Pollachi. On 24.02.2012 in the morning, when she went to her office, she was informed by her relative S.Anu Priyanka that "Crimes this Week" dated 16.03.2012, a Weekly Magazine had published a derogative article and copy of the same was affixed in and around the Pollachi Elementary Educational Office and also at Sub-Treasury Office and hence, she immediately went to the Sub-Treasury office and found that a derogative article against her has been published in the said Magazine and the same has been affixed in the Sub-Treasury Building, a public place and hence, she lodged a complaint before the first respondent and based on the said complaint, a case was registered and after investigation a charge sheet has been filed and based on the same, a case was taken on file in C.C.No.271 of 2012 on the file of the Judicial Magistrate No.1, Pollachi and the same is still pending. She also stated that the petitioner being a Printer of the said magazine, he is liable along with the editor and publisher of the publication of any derogative contentions and hence she prayed to dismiss the petition.
6. Heard Mr.V.K.Sathiamurthy, the learned counsel for the petitioner, Mr.T.Shunmugarajeshwaran, the learned Government Advocate (Crl.Side) for the first respondent and Mr.R.Sree Rangan, the learned counsel for the second respondent.
7. The learned counsel for the petitioner has submitted that the petitioner is only a printer of the said magazine and he is governed by the http://www.judis.nic.in 5 Press and Registration Act. He further submitted that the petitioner takes up printing works bonafidely which are given to him in the usual course of business and the duty of the petitioner is to print and hand over the material to the person who had entrusted the same for printing and he further submitted that the petitioner was not involved in publishing the said item at any point of time with the magazine, nor he had any reason to believe that the printed material to be defamatory or false. He further submitted that the petitioner as a printer has no right, authority to edit, alter or distort the material given to him for publishing and he has carried forward his duty as a printer and printed as per the direction of the Editor of the Magazine. He further submitted that the petitioner had no knowledge that the material printed would defame the second respondent. He further submitted that in the FIR itself, it is stated that the second respondent on seeing the said article which was affixed in the Sub Treasury building of Pollachi had torn the same. He further submitted that the first respondent also stated in the mahazar that no material is available in the scene of occurrence to seize and in such a case, it cannot be said that some derogative articles have been published against the second respondent. He further submitted that even as per the statement of the second respondent, in the said magazine, she was looting with her superiors and also doing “fliy NghLjy;'' and she is helping her superiors for getting bribe. He further submitted that in Tamil slang “fliy NghLjy;'' means casual chatting usually between two members of opposite sex and that would not attract the provisions of either Section of 509 IPC or http://www.judis.nic.in 6 Section 4 of Tamilnadu Prohibition of (Harassment of Women) Act, 1998. Therefore, he prayed to quash the proceedings against the petitioner in the aforesaid Criminal case.
8. Per contra, the learned counsel for the second respondent/defacto complainant has submitted that the petitioner has not disputed the fact that the petitioner is a printer of the magazine "Crimes This Week" and also the fact that the said magazine dated 16.03.2012 has published an article with regard to the second respondent. He further submitted that in the said article, it is stated that the second respondent being a Junior Officer in the District Educational Office, Pollachi gave false informations to the Government and showing her as V.I.P. Further, she has collected money from the schools by threatening and gave the same to the District Educational Officer and thereby she is having control over him. Further, it is stated that the second respondent is always indulged in looting in the chamber of the District Educational Officer and also doing the act of “fliy nghLjy;''. He further submitted that the aforesaid article has been printed with an intention to insult the modesty of the second respondent and also to harass her and hence the provisions of Section 509 IPC and Section 4 of the said Act would attract and hence he prayed to dismiss this petition.
9. The learned counsel for the second respondent, in support of his contentions, relied upon the following decisions:
http://www.judis.nic.in 7
i) Bhagat Singh Vs. Lachman Singh, AIR 1968 Calcutta 296;
ii) Mrs.Shobhana Bhartia and Others Vs. NCt of Delhi and another of Delhi High Court dated 21.09.2007
iii) M.M.Haries Vs. State of Kerala (Crl.MC.No.9717 of 2002 on the file of the High Court of Kerala at Ernakulam dated 16.02.2005);
iv) Raja @ Selvaraj Stanley Jones Vs. The State (Crl.RC.No.131 and 76 of 2007 on the file of this Court dated 13.07.2009);
v) Mrs. Rupan Deol Bajaj and Another vs. Kanwar Pal Sing Gill and another AIR 1996 SC 309 : (1995) 6 SCC 194.
10. The learned Government Advocate (Crl.Side) who is appearing for the first respondent has adopted the arguments advanced by the learned counsel for the second respondent/defacto complainant and apart from that, he also submitted that though the petitioner herein had got anticipatory bail from this court during investigation stage, after filing of the charge sheet, he did not appear before the Trial Court and hence Non-bailable warrant has been issued against him on 26.04.2014 and till today, the said Non-bailable warrant is pending and hence no progress has been made in the case before the Trial Court. He further submitted that there is a primafacie case against the petitioner to proceed under Sections 509 IPC and Section 4 of the Tamilnadu Prohibition of (Harassment of Women) Act, 1998 and hence he prayed to dismiss the petition.
http://www.judis.nic.in 8
11. The petitioner has not disputed the fact that he is a Printer of the Weekly Magazine "Crimes This Week". His only contention is that the he has just carried out the work entrusted to him and he has no knowledge about whether the contents of the said article are true or not.
12. In Bhagat Singh Vs. Lachman Singh (cited supra) the High Court of Calcutta has held as follows:
" The owner in order to be liable under this section has to have direct responsibility for the publication of the defamatory statement and he must also have the intention to harm or knowledge or reason to believe that the imputation will harm the reputation of the person concerned. The owner of a journal qua-owner has thus no responsibility under the section. The editor of the paper, even though he might not be directly responsible for a defamatory statement published in his paper attracts the responsibility by virtue of section 7 of the Press and Registration of Books Act by virtue of his registration as editor under the Act which registration is sufficient evidence that he was also the printer or publisher or printer and publisher of the paper concerned. The printer and publisher by virtue of their duties as such cannot of course avoid the legal liability for defamation. The owner's liability will be attracted provided it can be shown that he was responsible for the publication with the necessary intent, knowledge or reasonable belief in the matter. "
From the aforesaid decision, it is clear that by virtue of Section 7 of http://www.judis.nic.in 9 Press and Registration of Books Act, the printer and publisher cannot avoid the legal liability for defamation.
13. In Mrs.Shobhana Bhartiya and Others Vs. NCT of Delhi and another (cited supra) the High Court of Delhi in Paragraph Nos.16, 25 and 55 has held as follows:
"16. Every individual has a right to protect his reputation. Disparaging and defamatory statements made about a person to a third person or persons without lawful justification or excuse are actionable in law. As observed by the Supreme Court in the decision reported as State of Bihar V. Lal Krishna Advani reputation is an integral and important aspect of dignity of every individual. The right to preservation of one's reputation is acknowledged as right in rem, a right good against all the world. "
" 25. Before proceeding to analyze the news items in question, I quote the well-known passage of Lord Shaw in the decision reported as Arnold V.King Emperor LR (1913-14) 41 Ind.App.149.
“The freedom of the journalist is an ordinary part of the freedom of subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statue law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the http://www.judis.nic.in 10 range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position. "
"55. In view of provisions of Press and Registration Act, 1867, particularly Section 7 unless the contrary is proved, the persons declared as printer, publisher and editor of the newspaper are presumed to be responsible for the contents of the newspaper".
14. From the aforesaid decision also, it is clear that every individual has right to protect his reputation. Disparaging and defamatory statements made about a person to a third person or persons without lawful justification or excuse are actionable in law. Further, the freedom of the journalist is an ordinary part of the freedom of subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. It is also clear that in view of Section 7 of Press and Registration Act, 1867 unless the contrary is proved, the persons declared as printer, publisher and editor of the newspaper are presumed to be responsible for the contentions of the news paper.
15. In M.M. Haries Vs. State of Kerala (cited supra), the High Court of Kerala at Ernakulam in Paragraph No.22 has observed as follows:
" 22. So, if the court finds that a person writes a letter to woman and that the offender intends that such letter is seen or read by such woman and he also intends thereby to insult http://www.judis.nic.in 11 her modesty, an offence under Section 509 IPC will be clearly attracted. Charge Sheet in this case itself reveals that the petitioner allegedly wrote insulting and obscene letters to the victim-woman. It is also clear from the records that such letters were sent to her in the name-address so that the letters will be seen and read by the victim. It further appears from the contents of those letters that prima faice, intention of the author of the letters was to insult the modesty of the woman who receives the letter. Such intention can be discerned from the nature of the language, tone and tenor of the writing".
16. From the aforesaid decision, it is clear that if the court finds that a person writes a letter to woman and that the offender intends that such letter is seen or read by such woman and he also intends thereby to insult her modesty, an offence under Section 509 IPC will be clearly attracted.
17. In this case, the learned counsel for the second respondent has produced a xerox copy of the Tamil Magazine "Crimes This Week" dated 16.04.2012 and in the said magazine at Paragraph Nos.22 and 23, it is stated that 53 schools are coming in Pollachi Education District and the said Education District has not required two superintendents. The Government may take one post and hence the second respondent herein who is working as Superintendent and happens to be a junior gave false informations to the Government and collecting money by threatening from the schools and gave the same to the District Educational Officer and thereby she is having control over the said officer. It is also stated that the second respondent is helping http://www.judis.nic.in 12 the teachers to close the memos which were issued against them by getting money. Further, the second respondent is always in the chamber of District Educational Officer and indulged in looties and doing the act of “fliy NghLjy;''. For proper appreciation, the relevant portion of the said article is extracted here under:
" jw;nghJ jpUg;g{h; khtl;lk; cUthfpa gpwF cLkiy jhYf;fh nfhit khtl;lj;jpy; ,Ue;J gphpe;J jpUg;g{h; khtl;lj;jpy; ,ize;jjpy; cLkiyapy; ,Ue;j 37 gs;spfs; jpUg;g{h; khtl;lj;Jf;F brd;W tpl;lJ/ Mdhy; bghs;shr;rp fy;tp khtl;lj;jpy; ,Ue;j 53 gs;spfSf;F ,uz;L fz;fhzpg;ghsh;fs; njitapy;iy/ Mdhy; me;j gjtpaplj;jpy; xd;iw muR vLj;Jf;bfhs;Sk; vd;w fhuzj;jhy; me;j gjtpapy; ,Uf;Fk; $Pdpah; rPdpahpy; $Pdpah; fz;zk;kh vd;gth; muRf;F jtwhd jfty;fis bfhLj;J jd;Dila cs;S:h; mjpfhuj;ij gad;gLj;jp tp/I/gp vd;W bfsutk; Vw;gLj;jpf; bfhs;tJk; khtl;l fy;tp mjpfhhpia ifapy; nghl;Lf;bfhz;L mtUf;F ntz;oa vLgpo ntiyfs; bra;J gs;spfis kpul;o gzk; bgw;Wj;jUk; ,iljufuhft[k; bray;gl;L tUfpwhh;/ ,jdhy; khtl;l fy;tp mjpfhhp jd;Dila gjtpia gtuhg; gl;lh nghl;Lf; bfhLj;Js;ssh; ,e;j fz;zk;kht[f;F ///////////////////////////////////////////////// /// njid ef;fpatd; Rk;kh ,Ug;ghdh> jiyik Mrphpah;fs; kw;Wk; Mrphpah;fSf;F ve;j rhd;whf ,Ue;jhYk; ve;j fld; bgWtjhf ,Ue;jhYk;. ve;j Ma;t[fs; Mf ,Ue;jhYk; mth;fs; gzk; ghh;f;fhky; ve;j fhhpaKk; eilbgwhJ/ ntz;Lbkd;nw bknkh nghLtJk; mjw;F U:200 bfhLj;jhy; nghJk; mij nfd;ry; ,jw;F vy;yhk; Jizahf cjtp bra;tJk; ,e;j fz;zk;kh jhd;/ ve;j neuk; ghh;j;jhYk; fz;zk;kh khtl;lf; fy;tp mjfhhp miwapy; Y}l;o mog;gJk;. fliy nghLtJkhf ,th;fSila bjhy;iy jh';f http://www.judis.nic.in 13 Kotjpy;iy vd;W jiyik Mrphpah;fs; g[yk;gp js;Sfpwhh;fs;/ mj;Jld; ,e;j fz;zk;kh cs;Shpnyna gzpahw;w ntz;Lk; vd;W njdpapy; ,Uf;Fk;nghJk; jpUK:h;j;jp efh; Mrphpah; gapw;rp gs;spapy; gzpahw;Wk; nghJk; bghs;shr;rp fy;tp khtl;l mYtyfj;jpw;F tUtjw;F yl;rf;fzf;fpy; y":rk; bfhLj;J bghs;shr;rpf;F te;Js;shh;/”
18. According to the the second respondent, the aforesaid article has been published with an intention to insult her modesty and also harrass her.
A plain reading of the aforesaid article would show that it is not only a defamatory but also would insult the modesty of the respondent/defacto complainant. The statement that the second respondent is always in the chamber of a District Educational Officer and indulged in looting and “fliy NghLjy;''; would amount to insult the modesty of the second respondent and also harass her. As per the tamil slang, “fliy NghLjy;'' means casual chatting between two members of opposite sex. So, the said word also may cause shame to the second respondent.
19. In Raja @ Selvaraj Stanley Jones Vs. The State (cited supra), this Court in Paragraph No.53 has observed as follows:-
"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 http://www.judis.nic.in 14 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 a special and peculiar penal Section by itself, which cannot be equated in toto with http://www.judis.nic.in 15 Section 498 of IPC.
Section 4 of the said special enactment prescribes certain types of conducts as offence. At 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 and 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"
20. In Mrs.Rupan Deol Bajaj and Another Vs.Kanwar Pal Singh Gill and Another (cited supra), the Hon'ble Supreme Court has observed as follows;
" Coming now to the moot point as to whether the above allegations constitute any or all of the offences for which the case was registered, we first turn to Section 354 and 509 IPC, both of which relate to modesty of woman, These Sections read as under:
" 354. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
"509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or http://www.judis.nic.in 16 exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
Since the word " modesty" has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford Engligh Dictionary (Third Edition) modesty is the quality of being modest and in relation to woman means " womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct". The word ' modest' in relation to woman is defined in the above dictionary as "
decorous in manner and conduct; not forward or lewd; shamefast"'. Webster's Third New International Dictionary of the English language defines modesty as " freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct"". In the Oxford English Dictionary (1933 Ed) the meaning of the word "modesty" is given as "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct ( in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions"
21. From the aforesaid decision, it is clear that modesty is the quality of being modest and in relation to woman means "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct"
22. The learned counsel for the petitioner relying upon the decision of http://www.judis.nic.in 17 this court in S.Selva Kumar Vs.State through, The Inspector of Police, Keelakarai, Ramanathapuram District and another contended that the said act of the petitioner would not attract Section 4 of the Tamilnadu Prohibition of (Harassment of Women) Act. In that case, the specific case of the defacto complainant was that filthy language was used by the accused and beyond that she has not stated anything. Further, the witnesses have not spoken to about the specific words used by the accused. Taking into consideration of the aforesaid facts, this Court held that there is no material to charge the accused under Section 4 of the Tamilnadu Prohibition of (Harrasment of Women) Act. But in this case, the objectionable article has been published and admittedly the petitioner is the printer of the said magazine and his only contention is that he acted bonafidely as per the instructions of the editor. Whether he has acted bonafidely or not can be decided only after taking evidence. Therefore, the aforesaid decision will not help the petitioner.
23. In this case, as already pointed out that some wild allegations have been made in the aforesaid article against the second respondent. The question as to whether the petitioner has printed the matter without any intention cannot be decided in this petition. It is for the petitioner to prove before the Trial Court that he had acted with bonafide intention. Therefore, this Court of the view that there are materials to proceed against the petitioner and hence, this petition is liable to be dismissed. http://www.judis.nic.in 18
23. In the result, this petition is dismissed. Consequently, connected miscellaneous petitions are closed. Considering the fact that the case in C.C.No.271 of 2012 is pending for nearly seven years, the trial court is directed to dispose of the said case as early as possible in accordance with law uninfluenced by the observations made by this court in this order.
12.03.2019 Index:yes/No Speaking order:Yes/No vv To
1. The Judicial Magistrate No.1, Pollachi.
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2. The Inspector of Police, Pollachi East, Pollachi Police Station, Pollachi.
3. The Public Prosecutor, High Court, Madras.
P.RAJAMANICKAM.J., http://www.judis.nic.in 20 vv Pre-Delivery Order made in Crl.OP.No. 2519 of 2013 and M.P.Nos.1 and 2 of 2013 12.03.2019 http://www.judis.nic.in