Madras High Court
S.Aranganathan vs The Inspector Of Police on 24 February, 2015
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.02.2015 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR Crl.R.C.No.137 of 2015 and M.P.Nos.1 & 2 of 2015 S.Aranganathan .. Petitioner Vs 1.The Inspector of Police, V5-Annanagar Police Station, Anna Nagar, Chennai. 2.The Inspector of Police, W8 All Women Police Station, Thirumangalam, Chennai. 3.K.Seenivasan. .. Respondents Criminal Revision filed under sections 397 r/w 401 of Criminal Procedure Code, to call for records of the 2nd respondent/complainant on the file of the Court of Sessions Judge, Mahila Court at Chennai and set aside the order framing altered charges dated 04/02/2015 for offences under Section 8 of the prevention of Children from Sexual Offences Act 2012 against the petitioner in S.C.No.249 of 2014 on the file of the Court of Sessions Judge Mahila Court, Chennai. For Petitioner : Ms.S.Thankira For Respondents : Mr.P.Govindarajan (for R1 & R2) Additional Public Prosecutor. O R D E R
Being aggrieved by the order dated 04.02.2015 made in S.C.No.429 of 2014, framing charge under Section 8 of the Protection of Children from Sexual Offences Act, 2012, present revision case has been filed.
2. Case of the defacto complainant is that his daughter aged about 8 years was studying in a tuition centre, run by the daughter of the revision petitioner/accused. On 25.02.2014, the defacto complainant's daughter came home at 4.00pm crying and stated that the revision petitioner/accused fondled her breast and pressed her private parts. Hence, a complaint was lodged under the Protection of Children from Sexual Offences Act, 2012. It was registered as Cr.No.334 of 2014 for an offence under Section 12 of the Act. Upon investigation, the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, the 2nd respondent, closed the case as mistake of fact. RC notice was served on the respondent/defacto complainant in R.C.No.36/14 dated 29.04.2014.
3. Being aggrieved, a Protest Petition was filed in Crl.M.P.No.7589 of 2014 dated 05.05.2014 before the learned Sessions Judge, Mahila Court, Chennai. The accused was summoned by the Sessions Judge, Mahila Court, Chennai. The Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, the 2nd respondent herein, filed a counter affidavit dated 24.06.2014, stating that the case was closed as Mistake of Fact. Subsequently, on the final report dated 04.12.2014, filed by the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, charge has been framed under Section 8 of the Protection of Children from Sexual Offences Act, 2012. The Charge framed by the learned Sessions Judge, Mahila Court, Chennai, is extracted hereunder ,t;tHf;fpy; g[fhu;jhuuhd rPdpthrd; vd;gthpd; kfshd 8 taJila fPu;j;jdh Kfg;ngu; fpHf;fpy; cs;s ntyk;khs; bkl;hpf; nky;epiy gs;spapy; goj;J tUtjhft[k;. mtUk; g[fhu;jhuhpd; kw;bwhU taJila Jsrp vd;gtUk; neU bjUtpy; cs;s ck;Kila kfshd jkpH;r;bry;tp vd;w Mrphpia elj;jptUk; oa[{c&d; brd;lhpy; goj;J tUtjhft[k;. vjhpahfpa ePu; oa[{c&d; Mrphpia ,y;yhky; ,Uf;Fk; nghJ nkw;go FHe;ij fPu;jhdhit ghu;j;J ckJ Ra eyj;jpw;fhf fz; mog;gJk;. ghj;U:k; nghu ,lj;ij fps;StJ. FHe;ijapd; khu;gfgFjpapy; iffis itj;J jlt[tJk; njhs;gl;ilapy; mGj;JtJkhd bray;fis bra;J nkw;go FHe;ijf;F ghypay; bjhy;iy bfhLj;Js;sjhf 1 Kjy; 3 rhl;rpfspd; thf;FK:y';fspd; thapyhf bjhpatUtjhy; vjphpahfpa ePu; gphpt[ 8 rpWtu;fSf;F vjpuhd ghypay; bfhLik jLg;g[r;rl;lk; 2012d; fPH; tprhhpf;fj;jf;fJk;. ,e;ePjpkd;wj;jhy; jz;of;fj;jf;fJkhd Fw;wj;ij g[hpe;Js;sPu; vd Fw;wr;rhl;L tpidag;gl;Ls;sJ/ nkw;brhd;d Fw;wr;rhl;Lfs; rk;ge;jkhf vd; Kd;dhy; ,e;ePjpkd;wj;jhy; tprhhpf;fg;gl ntz;oatu; vd mwptpf;fg;gLfpwJ
4. Assailing the correctness of the order, framing charge, Ms.S.Thankira, learned counsel for the petitioner submitted that when the Court of Sessions, Mahila Court was aware of the existence of the final report, service of RC notice on the defacto complainant, Cr.No.334 of 2014, has been referred, as mistake of fact, filing of a Protest Petition Crl.MP.No.7589 of 2014, filed by the defacto complainant and the orders passed thereon, framing of charge, based on the final report, filed on 04.12.2014 under Section 173 (2) Cr.P.C is untenable.
5. Learned counsel for the petitioner further submitted that when Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, has already filed the counter affidavit in the protest petition, to the effect that the investigation and the recorded statements indicated political animosity and that Cr.No.334 of 2014, has already been closed as mistake of fact, it would not be proper to alter the charge, without there being a further investigation under Section 173(8) Cr.P.C.
6. Learned counsel for the petitioner also made submissions on the contradictions in the statements of the witnesses, examined by the police. In addition to the above, she submitted that there is no possibility of committing the offence, in a tuition centre, in the midst of other children.
7. Learned Additional Public Prosecutor submitted that there are materials for alteration of charge from Section 12 to Section 8 of the Protection of Children from Sexual Offences Act, 2012 and the final report under Section 173(2) Cr.P.C. dated 04.12.2014, indicates the same. Sessions Case No.429 of 2014, has been posted for examination of witnesses LW1 to LW3 on 06.03.2015 and he prayed to sustain the impugned order.
8. Heard the learned counsel for the parties and perused the materials available on record.
9. From the material on record, it could be deduced that on the complaint of the father of a girl child aged about 8 years, alleging that she was molested by the petitioner by touching her breast and private parts of the body, a case in Cr.No.334 of 2014 for an offence under Section 12 of the Protection of Children from Sexual Offences Act, 2012, has been registered on the file of the Inspector of Police, V5-Annanagar Police Station, Anna Nagar, Chennai, the 1st respondent herein. Thereafter, investigation has been taken up by the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, the 2nd respondent herein.
10. Crime is stated to have been registered under Section 12 of the Protection of Children from Sexual Offences Act, 2012, which is extracted hereunder.
Punishment for sexual harassment: - Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
11. The abovesaid Section falls under the category E.Sexual Harassment and Punishment Therefor. Upon investigation, the Investigation Officer has closed the crime as mistake of fact. Material on record discloses that the defacto complainant has filed a petition, before this Court in Crl.O.P.No.5533 of 2014, seeking for a direction to alter the offence against the petitioner/accused from Section 12 to Section 8 of the Protection of Children from Sexual Offences Act, 2012 and consequently, to conduct a de-novo investigation into the same.
12. Reading of the counter affidavit filed by the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai in Crl.M.P.No.7589 of 2014, indicates that this Court has passed the following orders.
considering the nature of the case, this Court while informing that upon completion of investigation it always would be open to the first respondent to inform the actual offences, if any, that stand committed, directs the jurisdictional assistant Commissioner of Police to monitor the investigation in the case.
13. Material on record further discloses that a report dated 30.10.2014, has been filed, by the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, the 2nd respondent, for alteration of charge, from Section 12 to Section 8 of the Protection of Children from Sexual Offences Act, 2012. Report of the investigating officer for alteration of the offeence is extracted hereunder.
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ghu;itapy; fz;l tHf;fhdJ thjp rPdpthrd; fhu;oiutuhf ntiy ghu;j;J tUfpwhu;/ thjpapd; kidtp kfhyl;Rkp tPl;oy; ,Ue;J tUfpwhu;/ ,tu;fSf;F fPu;j;jdh vd;w 8 taJ kfSk;. Jsrp vd;w 5 taJ kfSk; ,Uf;fpwhu;fs;/ ghjpf;fg;gl;l FHe;ij fPu;j;jdh ehd;fhk; tFg;g[k;. mtsJ j';if Jsrp xd;whk; tFg;g[k; Kfg;ngu; fpHf;fpy; cs;s ntyk;khs; bkl;hpf; nky; epiy gs;spapy goj;J tUfpwhu;fs;/ ,tu;fs; ,UtUk; neU bjUtpy; cs;s vjphpapd; kfshf jkpH;r;bry;tp Mrphpia elj;jptUk; oa{c&d; brd;lhpy; goj;J tUfpwhu;fs;/ thjp 25/02/2014k; njjp tPl;oy; ,Ue;jnghJ ghjpf;fg;gl;l rpWkp fPu;j;jdh mGJf;bfhz;L tPl;ow;F te;js;shu;/ nkYk; tprhhpj;nghJ ghjpf;fg;gl;l FHe;ij oa{c&dpy; Mrphpia ,y;yhky; ,Uf;fk;nghJ oa{c&d; Mrphpiaapd; je;ijahd vjphp mu';fehjd; ghjpf;fg;gl;l rpWkp fPu;'j;jdhit ghu;j;J fz; mog;gJ. ghj;U:k; nghu ,lj;ij fps;StJ. FHe;ijapd; khu;gfg;gFjpapy; iffis itj;J jlt[tJ njhy;gl;ilapy; mGj;JtJkhd bray;fis bra;Js;shu; vd bjhpatUfpwJ/ nkYk; fdk; 13tJ bgU efu Fw;wtpay; eLtu; ePjpkd;wj;jpy; ghjpf;fg;gl;l rpWkp fPu;j;jdh 164 F/tp/K/rtpy; ePjpkd;wj;jpy; mspj;j thf;F K:yj;jpYk; nkw;go tptu';fis Fwpg;gpl;Ls;shu;/ vdnt vjphp mu';fehjd; rl;lg;gphpt[ 8 The Protection of Children from Sexual Offence Act 2012-apd; gojz;of;f jf;f Fw;wk; g[hpe;Js;shu;/ vdnt ,t;tHf;fpd; 12 The Protection of Children from Sexual Offence Act 2012 rl;lg;gphptpypUe;J 8 The Protection of Children from Sexual Offence Act 2012?f;F khw;wk; bra;J ,t;twpf;if rku;g;gpf;fg;gLfpwJ/ Xg;gk;
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14. Final report, dated 04.12.2014, under Section 173(2) of Cr.P.C. enclosed at pages 86 to 91 of the typed set of papers before this Court and the same is perused.
15. Though from the counter affidavit of the Investigating Officer, it could be deduced that an order has been passed by this Court, in Crl.O.P.No.5533 of 2014, for reasons best known, the petitioner/accused has not enclosed the copy of the said order. Fact remains that the defacto complainant has sought for a direction, to alter the offence against the accused/petitioner from Section 12 to Section 8 of the Protection of Children from Sexual Offences Act, 2012. Section 8 of the Act is as follows:
8. Punishment for sexual assault:- Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extent to five years, and shall also be liable to fine.
16. Section 8 of the Act falls under the category C.Sexual assault and punishment therefor.
17. Reading of the Act, makes it clear that offences under Section 8 and Section 12, fall under different categories. In a given case, there may not be sufficient material to frame a charge under Section 12 of the Act. But if there are materials, to frame a charge under Section 8 of the Act, it is always open to the investigating officer to seek for alteration of charge.
18. In the case on hand, after completion of the investigation, a final report has been filed on 04.12.2014, based on which, the learned Sessions Judge, Mahila Court, Chennai, has framed the charge under Section 8 of the Protection of Children from Sexual Offences Act, 2012, which is in compliance with the directions of this Court in Crl.O.P.No.5533 of 2014 and at the risk of repetition, the order of this Court extracted in the counter affidavit filed by the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, is reproduced:
considering the nature of the case, this Court while informing that upon completion of investigation it always would be open to the first respondent to inform the actual offences, if any, that stand committed, directs the jurisdictional assistant Commissioner of Police to monitor the investigation in the case.
19. Though, the learned counsel for the petitioner submitted that there is no medical examination, and further contended that there are contradictions in the statement of the witnesses examined by the police, the allegations made against the petitioner are due to political vendetta, this Court is not inclined to subscribe to the same, as it is always open to the petitioner/accused to raise any defence. On the available materials, at this juncture, this Court is of the view that it cannot be visualised that any parent would go to the extent of describing his child aged about 8 years, to be a victim of an offence, to wreck political vendetta, against the accused. The alleged victim has given a statement, under Section 164 Cr.P.C., before the 13th Metropolitan Magistrate, Egmore, and at this juncture, the same cannot be simply brushed aside. It is always open to the petitioner to assail the statement, in the trial.
20. The Protection of Children from Sexual Offences Act, 2012, is a special enactment to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offence and for matter connected therewith or incidental thereto.
21. Statements of Objects and Reasons, are extracted hereunder.
Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, Article 39, inter alia, provides that the State shall in particular direct it policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.
2. The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity ; (b) the exploitative use of children in prostitution or other unlawful sexual practices ; and (c) the exploitative use of children in pornographic performances and materials.
3. The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the 'Study on Child Abuse: India 2007conducted by the Ministry of Women and Child Development. Moreover, sexual offences are neither specifically provided for nor are they adequately penalised. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.
4. It is therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Court for speedy trial of such offences.
5. The Bill would contribute to enforcement of the right of all children to safety, security and protection from sexual abuse and exploitation.
6. The notes on clause explain in detail the various provisions contained in the Bill.
7. The Bill seeks to achieve the above objects.
22. Allegations are serious in nature. In Crl.O.P.No.5533 of 2014, this Court has observed that upon completion of investigation, the Inspector of Police, W8-All Women Police Station, Thirumangalam, Chennai, the 2nd respondent herein, can always inform the actual offences, if any, that stand committed. While issuing the directions, this Court has considered the case of the defacto complainant, seeking for alteration of the charge and accordingly issued directions. In accordance with the directions issued, when the investigating officer had materials for alteration of the charge, a prayer has been made to the Court below, and allowed.
23. Merely because, a counter affidavit has been filed on 24.06.2014, to the Protest Petition, stating that there are no materials for framing a charge, under Section 12 of the Act, that would not preclude the investigating officer, to seek for alteration of the charge, for some other offence, if any, that stand committed. From the request for framing the charge, under Section 8 of the Act, it could be seen that the Court below has taken note of the statement of the girl child recorded under Section 164 Cr.P.C., before the 13th Metropolitan Magistrate, Chennai and while framing the charge, under Section 8 of the Act, also considered the statement of witnesses 1 to 3. In the said circumstances, it cannot be said that there are no materials for framing/alteration of the charge. Though the learned counsel for the petitioner submitted that there is no medical examination of the alleged victim and hence, there is medical evidence to support the charge, subjecting the victim child, for medical examination, depends upon the facts of each case. While framing a charge, Court is only bound to consider, as to whether, there are sufficient materials to do so. Such being the position of law, alteration of charge on the basis of the materials considered by the Court, cannot be said to be illegal. Though the Act casts the burden on the accused to prove his innocence, that cannot be a ground to set at naught the prosecution launched. Provisions of the Act, have to be implemented in letter and Spirit.
24. Though, the learned counsel for the petitioner further submitted that the minor girl/victim has been tutored, it is too early to arrive at such conclusion. Examination of the witnesses is yet to commence. The petitioner has approached this Court, at the threshold. Statements made in the form of an affidavit by the petitioner or the grounds raised in the memorandum of revision cannot be considered as evidence to be adduced by the witnesses in the trial Court. Having regard to the material on record, this Court is not inclined to interfere with the order dated 04.02.2015 passed by the learned Sessions Judge, Mahila Court, Chennai, framing charge against the petitioner under Section 8 of the Protection of Children from Sexual Offences Act, 2012.
25. For the reasons, stated supra, the Criminal Revision Case is dismissed. Consequently, the connected Miscellaneous Petitions are closed.
24.02.2015 Index: Yes Website: Yes ars S.MANIKUMAR, J., ars To
1.The Sessions Judge, Mahila Court, Chennai.
2. The Inspector of Police, V5-Annanagar Police Station, Anna Nagar, Chennai.
3. The Inspector of Police, W8 All Women Police Station, Thirumangalam, Chennai.
4. The Public Prosecutor, High Court, Madras.
Crl.R.C.No.137 of 201524.02.2015