Madras High Court
S.Greesh Kumar vs Ms.Susmita Sen on 13 April, 2010
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/04/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Crl.R.C.(MD)No.89 of 2010 S.Greesh Kumar .. Petitioner/Complainant Vs Ms.Susmita Sen .. Respondent/Sole Accused Prayer Criminal Revision Case filed under Section 397 r/w 401 of Cr.P.C., praying to set aside the order of dismissal passed by the learned Judicial Magistrate No.V, Madurai in Cr.M.P.No.335 of 2007, dated 12.02.2010 and direct the issue summons to the accused. !For Petitioner ... Mr.W.Peter Ramesh Kumar ^For Respondent ... No Appearance :ORDER
The Criminal Revision is filed against the order passed by the learned Judicial Magistrate No.5, Madurai in Crl.M.P.335 of 2007, dated 12.02.2007 dismissing the a private complaint filed against the respondent.
2.The petitioner, a practicing Advocate filed a complaint before the learned Judicial Magistrate No.5, Madurai, in C.M.P.No.335 of 2007, against Ms.Susmitha Sen, a Cine Actress, for the alleged offences under Sections 292, 292(a) 293, 294 and 509 I.P.C. r/w Section 3(4)(6) of Indecent Representation of Women Act, and Sections 2 & 3 of the Young Persons (Harmful Publication) Act, 1956 and also Sections 499 and 500 of I.P.C. The learned Magistrate, took the complaint on file and the sworn in statement of the complainant was recorded. The learned Magistrate analyzed whether the prima facie case was made against the accused and found the Penal Provisions are not attracted and therefore, had dismissed the complaint. Aggrieved by which, the present revision is filed on various grounds.
3.Mr.W.Peter Ramesh Kumar, the learned counsel for the revision petitioner vehemently contended that the respondent has categorically stated that in her opinion no male or female in India are having chastity and virginity. The learned counsel pointed out that the interview of the respondent was telecast in the prominent English News channels on 06.10.2006 and was published in the local News Paper (Daily Thandhi) on 7.10.1007. The learned counsel pointed out that a private complaint was filed during the month of November, 2007. The learned counsel pointed out that the published news item was placed before the learned Judicial Magistrate, which is offensive and the Magistrate has not considered the same and has chosen to dismiss the application for want of material evidence.
4.Since the revision is filed before taking cognizance of an offence by the Magistrate, notice was not ordered to the respondent. The point for consideration arises in this revision is whether the impugned order of the Magistrate is sustainable in law?
5.A Complaint has been filed under Section 200 of Cr.P.C., alleging offences under the Indian Penal Code, Indecent Representation of Women Act and Sections 2 & 3 of the Young Persons (Harmful Publications) Act, 1956, before the learned Judicial Magistrate. According to the complainant, the respondent, who is a Cine Actress, had given an interview on 06.10.2010, stating certain things touching the chastity and morality of the Indian male and female. According to the complainant, the respondent had depicted the Indian men and women in a denigrating manner. Since the complaint was filed under Section 200 of the Code of Criminal Procedure, it is relevant to refer the provisions.
6.Section 190 of Cr.P.C., reads as follows:-
"190. Cognizance of offences by Magistrates:-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in his behalf under sub- section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such ofence;
(b) upon a police report of such facats;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.
7.Section 200 of Cr.P.C., reads as follows:-
"200. Examination of complainant:- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examined the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
8.Section 203 of Cr.P.C., reads as follows:-
"203. Dismissal of complaint:- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
9.Therefore, under section 200 of the Code, any Magistrate of the first class may take cognizance of any offence upon receipt of a complaint if it constitute such offence. A Magistrate taking cognizance of the offence on complaint shall examine the complainant on oath and the witnesses present if any and after considering the statement on oath of the complainant and of the witnesses if the Magistrate is of opinion that there is no sufficient ground for proceedings he shall dismiss the complaint after recording the reasons for doing so under section 203 of the code. A complaint has been given under Section 200 of Cr.P.C., alleging various offences under IPC and other Acts as stated above.
10. The published material is reproduced hereunder.
""ehd; xU thypgiu Bjor; brd;W cdf;F jpUkzk; Mfptpl;ljh, ny;iyah vd;W Bfl;L mjd; gpd; me;j thypgUld; gHFtJ vd;gJ Koahj fhhpak;. fhjy;; vd;gJ fz; ny;yhjJ, kjk;, ndk;, jpUkzk; Mdtuh ny;iyah vd;w fl;Lg;ghLfSf;bfy;yhk; mg;ghw;gl;lJ. ne;j fhyj;jpy; fw;G vd;gjw;F mh;j;jBk ny;yhky; Bgha;tpl;lJ. NJ Mz;fSf;Fk;, bgz;fSf;Fk; bghUe;Jk;. nUtUf;Fk; nilBa cwT Vw;gLtjw;F Kd;G ahUk; jdJ Jiz fw;G cs;stuh my;yJ fw;G nHe;jtuh vd;W Muha;e;J bfhz;L nUg;gJ ny;iy. cly; cwT vd;gJ thH;;f;ifapd; xU mDgtk; vd;gij vy;ByhUk; czh;e;J nUf;fpwhh;fs;. ehd; ahiuahtJ fhjypf;fBwd; vd;why; fhjypg;Bgd;, ny;iy vd;why; n;y;iy. Mt;tsT jhd; kw;wgo fw;G vd;gJ gw;wpa Bfs;tpf;Bf nlkpy;iy."
11.Sections 292, 292(a), 293 and 294 I.P.C., deals with sale of obscene books, sale of obscene objects and obscene songs. Therefore, as rightly pointed out by the learned Magistrate, the complaint as well as the sworn-in-statement does not reflect the offences under the above Sections.
12.The complainant alleges offence under Section 499 & 500 Cr.P.C., the relevant provisions for defamation and Punishment for defamation. The complainant has also alleged an offence under Section 509 of I.P.C., which deals with words 'gesture' or 'act' intended to insult the modesty of a woman. The learned Magistrate had considered these aspects and has held that considering the interview as a whole, there is no intention to insult the modesty of the women. The learned Magistrate has also observed that there is no imputation aimed at any particular individual or individuals to bring in the offence for defamation.
13.Sections 3 and 4 of the Indecent Representation of Women (Prohibition) Act, 1956, reads as follows:-
"3. Prohibition of advertisements containing indecent representation of woman:- No person shall publish, or cause to be published, or arrange or take part in the publication or exhibitioin of, any advertisement which contains indecent representation of women in any form.
4.Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women:- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form.
Provided that nothing in this section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure is in the interest of science, literature, art, or learning or other object of general concern; or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or otherwise represented on or in,-
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) any temple, or on any car used for the convenience of idols, or kept or used for any religious purposes;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable.
14.Again, the above provision deals with advertisement and publications. The Young Person Harmful Publication Act also deals with harmful publication for inciting or encouraging any person for commission of any offence.
15.In sum and substance, according to the complainant, the interview published on 7.10.2006 in a Tamil Daily (Dhina Thandhi) had defamed the Indian men and women and the words used were intended to insult the modesty of a woman. A plain reading of the interview would show that the respondent had answered a question relating to her personal life and it reflects only a personal opinion. Moreover, what has been published in the Tamil daily is only a reproduction of an earlier interview telecast in English Channels. Therefore, there is no material available to show a prima facie case against the respondents. The learned Magistrate has rightly considered all aspects and has dismissed the private complaint and I have no reason to interfere.
16.In the result, the revision is dismissed.
MPK To The Judicial Magistrate No.V, Madurai.