Ramesh Raja v. The State of Tamil Nadu

ORDER The Criminal Revision is directed against the order passed in Crl.M.P.No.17086 of 2023 in S.C.No.876 of 2023 dated 19.09.2024 on the file of the Mahila Court, Tirunelveli, dismissing the application filed for discharge under Section 227 of the Code of Criminal Procedure.

¶2The petitioners are the accused 2 and 3 in S.C.No.876 of 2023 for the offences under Section 417 IPC and Section 4 of TN Prohibition of Harassment of Women Act, 2002.

¶3The case of the prosecution is that the first accused, who is the son of the petitioners, and the defacto complainant are having relationship like that of student and teacher, that the first accused, by misusing his position, had abused the defacto complainant sexually, that the first accused had sexual intercourse with the defacto complainant several times forcibly, that the first accused had threatened the defacto complainant that he would disclose the said relationship to her husband and others and extracted jewels and money from her, that the defacto complainant, her husband and her mother, after coming to know about the incident, had informed of the same to the petitioners and directed them to return the jewels and money but both of them felt ignorance and refused to return the jewels and money and that therefore the defacto complainant has lodged a complaint against the accused.

¶4On the basis of the complaint lodged by the defacto complainant, FIR came to be registered in Crime No.6 of 2022 against three persons including the petitioners for the alleged offences under Sections 417, 376 and 506(1) IPC and Section 4 of TN Prohibition of Harassment of Women Act, 2002. After completing the investigation, charge sheet came to be filed before the jurisdictional Court and after committal, the case was taken on file in S.C.No.876 of 2023 and is pending on the file of the Mahila Court, Tirunelveli.

¶5When the case was pending for framing of charges, the petitioners/accused 2 and 3 have filed the above application under Section 227 Cr.P.C. seeking discharge from the above case and the said application was taken on file in Crl.M.P.No.17086 of 2023.

¶6The case of the petitioners is that the petitioners are totally unaware of the affairs existed between the first accused and the defacto complainant until the husband and mother of the defacto complainant conveyed the same, that the only allegation levelled against the petitioners is that when the defacto complainant, her husband and her mother went to the house of the petitioners and asked them to reprimand the first accused and directed them to return the jewels and money taken by the first accused from the defacto complainant, the petitioners had replied that they would not return the amount, that admittedly, there are no overt acts against the petitioners so as to attract the offences under Section 417 IPC and Section 4 of TN Prohibition of Harassment of Women Act and that therefore, the petitioners were constrained to file the discharge application.

¶7The respondent police has filed counter statement raising objections and further stated that after conducting proper investigation, charge sheet has been rightly laid against three accused including the petitioners, that the petitioners are giving unlawful assistance to commit the offence to the first accused, that the petitioners are necessary and proper parties to the present case, that the first accused has committed the offence with the help and assistance from his parents and false assurance given by them, that the above application has been filed to drag on the proceedings and that therefore, the application is liable to be dismissed.

¶8The learned Sessions Judge, after enquiry, has passed the impugned order dated 19.09.2024 dismissing the discharge application. Aggrieved by the order of dismissal, the present revision came to be filed.

¶9At the outset, it is pertinent to note that in the complaint lodged by the defacto complainant, it has been stated that the petitioners/parents of the first accused had abetted the first accused in committing the offence of extracting jewels and money from the defacto complainant and the relevant portion is extracted hereunder:- "... ,t;thW FLk;g ngz;fis kpul;b mgfhpj;j gzk; eiffis itj;J mtdJ FLk;gj;jpdUf;Fk; mth;fs; nrhFrhd tho;f;if elj;Jtjw;Fk; gad;gLj;jp tUfpd;whd;. vd;dplk; ,Ue;J mgfhpj;J gzk; eiffis itj;J mtd; nrhe;jkhf fhh; thq;fpAs;shd;. Nkw;gb ny];yp jpthfhpd; gzk; gwpf;Fk; Fw;w nray;fSf;F mtdJ je;ij uNk\; uh[h jhahh; kfpok;khs; cle;ijahf nray;gl;L tUfpwhh;fs;. mth;fsJ FLk;gj;jpdNu ,J Nghd;w Fw;w nray;fis njhlh;e;J nra;J tUfpd;wdh;.... vd;id vdJ tpUg;gj;jpw;F khwhf tYf;fl;lhakhf kpul;b fw;gopj;jjw;Fk; NkYk; vd;id kpul;b vd; tPl;by; ,Ue;j gzk; jq;f eiffis mgfhpj;J nfhz;ljw;Fk; mjw;F cle;ijahf ,Ue;j mtdJ ngw;Nwhh;fs; kPJk; rl;lg;gb eltbf;if vLj;J vd; eiffisAk; gzj;ijAk; kPl;L jUk;gbAk;....."

¶10As rightly contended by the learned counsel appearing for the petitioners, the defacto complainant in her first statement given under Section 161(3) Cr.P.C. has stated that when her husband and mother went to the petitioners' house and directed them to reprimand the first accused and to return the jewels and money, the petitioners had replied that they were not aware of those things and hence, they were not in a position to return the amount and the relevant portion is extracted hereunder for better appreciation; "... vd; fztUk; vd; jhahUk; jpthfhpd; jha; je;ijaplk; ,J gw;wp nrhy;yp jpthfiu fz;bj;J itf;FkhWk; gzk; kw;Wk; eiffis jpUk;g jUkhWk; Nfl;ldh;. mjw;F jpthfhpd; jha; je;ij ,UtUk; vq;fSf;F ,J gw;wp xd;Wk; njhpahJ ehq;fs; gzk; juKbahJ vd;W nrhy;yptpl;ldh;...."

¶11Even in the subsequent statement recorded on 13.02.2023, the defacto complainant has reiterated the very same version against the petitioners. The defacto complainant's husband Saravana Kumar and mother Vijaya in their statements recorded under Section 161(3) Cr.P.C. have reiterated the version of the defacto complainant and the relevant portion is as follows:- Defacto complainant's husband Saravana Kumar : "... ,J gw;wp ehDk; vd; kidtpAk; jpthfhpd; mg;gh mk;khtplk; nrhd;d NghJ mth;fs; vq;fSf;F ,J gw;wp xd;Wk; njhpahJ vd;Wk; gzk; eifnay;yhk; ju KbahJ vd;W nrhy;yp tpl;lhh;fs;..." Defacto complainant's mother Vijaya :"...,J gw;wp jpthfhpd; mk;kh mg;ghtplk; Nfl;l NghJ mth;fs; vq;fSf;F vJTk; njhpahJ vd;W nrhy;yp tpl;ljhf vd; kfSk; mts; fztUk; nrhd;dhh;fs;..."

¶12Except the above statement of the defacto complainant and other witnesses, as rightly contended by the learned counsel appearing for the petitioners, there are no other materials produced by the prosecution against the petitioners.

¶13More importantly, the learned counsel appearing for the petitioners would rely on the statement recorded under Section 164 Cr.P.C. by the jurisdictional Magistrate from the defacto complainant. As rightly pointed out by the learned counsel appearing for the petitioners, the defacto complainant has taken a complete U-turn and made allegations against her husband. Moreover, in the said statement, she has stated that she has given her jewels and money to the said Divakar but subsequently she has received back from him and that there was no illicit relationship between her and the said Divakar and only due to the compulsion of her husband, the present complaint came to be lodged.

¶14In the impugned order, the learned Sessions Judge has observed that there are materials to frame charge for the offences under Sections 417 r/w 114 IPC against the petitioners. According to the prosecution, the petitioners have abetted their son/first accused to commit the offence levelled against him.

¶15Abetment under the criminal jurisprudence would mean the act of insisting, provoking or encouraging any person to commit an offence. According to Section 107 IPC, there are three essential elements of abetment, namely, instigation, provocation and active involvement. To put it in other way, Section 107 IPC defines abetment of a thing that consists of three acts, namely, instigation, conspiracy, or intentional aid. Abetment occurs when someone willingly encourages, insists, or aids another person to commit an offence and as such, the presence of mens rea is a precondition. It is pertinent to note that the person abetting must have complete knowledge of the crime he/she will commit as a result of the said abetment and only after establishing the presence of both the elements, mens rea and whether or not the accused had the knowledge of the crime, the accused shall be charged with the offence of abetment. Chapter V (Sections 107 to 120 IPC) talks about the crime of abetment and its punishment. Section 114 IPC states that if someone is present when a crime is committed, they are considered to have committed the crime. The purpose of Section 114 IPC is to ensure that those, who help or encourage a crime, are held accountable as the law towards an abettor who is present at the scene with increased severity because their presence seen as encouragement or support for the crime.

¶16In the case on hand, as already pointed out, the first accused was charged with the offence of rape, cheating and criminal intimidation. It is not the specific case of the prosecution that the petitioners had abetted the first accused for commission of the above said offences. Even according to the prosecution, after the commission of the offence, when the defacto complainant, her husband and her mother had approached the petitioners and informed the offence committed by their son and directed them to return the jewels and money which came to be taken by the first accused from the defacto complainant, they had replied that they were not aware of those things and as such, they were not in a position to return the amount. As rightly contended by the learned counsel appearing for the petitioners, the prosecution has levelled allegations against the petitioners only with regard to the incident occurred subsequent to the commission of main offence. Neither the defacto complainant nor any other witnesses had stated that the petitioners had abetted the first accused in taking jewels and money from the defacto complainant or that the petitioners were present at the time of taking the jewels and money from the defacto complainant. As rightly contended by the learned counsel appearing for the petitioners, this Court is also at loss to understand, in the absence of any material, as to how the petitioners were implicated in the above case.

¶17At this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in State by the Inspector of Police, Chennai Vs. S.Selvi and another reported in (2018) 13 SCC 455. "7. It is well settled by this Court in catena of judgments including the cases of Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v. State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v. CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2 SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424, State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711, Niranjan Singh Karan Singh Punjabi vs. Jitendra Bhimraj Bijjayya (1990) 4 SCC 76 and Superintendent & Remembrancer of Legal Affairs, West Bangal v. Anil Kumar Bhunja (1979) 4 SCC 274 that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the mater and weigh the materials as if he was conducting a trial"

¶18The learned counsel appearing for the petitioners would rely on a judgment of the Hon'ble Supreme Court in Vikramjit Kakati Vs. The State of Assam reported in 2022 AIR SC 3597, wherein, the Hon'ble Apex Court has referred the principles laid down by the Hon'ble Supreme Court in M.E.Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru reported in (2020) 2 SCC 768 and the relevant principles are extracted hereunder:- "10....

17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.

17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution."

¶19It is settled law that at the stage of framing charges, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.

¶20It is also settled law that while considering an application seeking discharge from a case, the Court is not expected to go deep of the probative value of the material on record, but on the other hand, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, and for that purpose, the Court cannot conduct a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is a main trial.

¶21It is pertinent to note that the Courts are duty bound to determine if there are sufficient grounds to proceed against the accused and if there are not sufficient grounds, then the Courts must discharge the accused. The purpose of Section 227 Cr.P.C. is to ensure that the Court is satisfied that the accusations made against the accused are not frivolous. In the case on hand, as already pointed out, there are absolutely no material sufficient enough to frame charges and proceed against the petitioners but the learned Sessions Judge, without considering the above aspects in proper perspective, by simply observing that there are materials to proceed against the petitioners, dismissed the application.

¶22Considering the above, this Court has no hesitation in holding that the impugned is unsustainable and therefore is liable to be set aside. Hence, proceeding further against the petitioners would be an abuse of process of law.

¶23In the result, this Criminal Revision Petition stands allowed and the impugned order dated 19.09.2024 passed in Crl.M.P.No.17086 of 2023 in S.C.No.876 of 2023 is set aside and the discharge application in Crl.M.P.No.17086 of 2023 stands allowed. Consequently, connected Miscellaneous Petition is closed.

04.12.2024 NCC :yes/No Index :yes/No Internet:yes/No csm To

¶1The Mahila Judge, Tirunelveli.

¶2The Inspector of Police, AWPS Town Police Station, Tirunelveli City.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.R.C.(MD)No.957oofo2024 oK.MURALIoSHANKARoo,Jo. csm Pre-DeliveryoOrderomadeoin Crl.R.C.(MD)No.957oofo2024 and Crl.M.P.(MD)No.10544oofo2024 Datedo:o04.12.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 24.10.2024 Pronounced on : 04.12.2024 CORAM: THE HON'BLE MR.JUSTICE K.MURALI SHANKAR and Crl.M.P.(MD)No.10544 of 2024 1.Ramesh Raja 2.Mahizhammal ... Petitioners Vs. The Inspector of Police, AWPS Town Police Station, Tirunelveli City. (Crime No.06 of 2022) ... Respondent Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442 B.N.S.S., to call for the records pertaining to the impugned order in Cr.M.P.No.17086 of 2023 in S.C.No.876 of 2023 dated 19.09.2024 pending on the file of the learned Mahila Judge, Tirunelveli and set aside the same. For Petitioners : Mr.G.Karuppasamy Pandiyan For Respondent : Mr.K.Sanjai Gandhi Government Advocate (Crl. Side)