Madras High Court
Unknown vs The Inspector Of Police on 29 May, 2021
Crl.O.P.(MD)Nos.8801 and 8802 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED : 25.08.2021
ORDER PRONOUNCED : 28.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.ILANGOVAN
Crl.O.P.(MD)Nos.8801 and 8802 of 2021
xxxxxxxxxxxxx
... Petitioner in both Crl.O.Ps.,
Vs.
1.The Inspector of Police,
Karimedu Police Station,
Madurai City,
Crime No.376 of 2021
2.Jeyachandran
3.P.Vijay
...Respondents in both Crl.O.Ps.,
PRAYER in Crl.O.P.(MD) No.8801 of 2021: Criminal Original Petition
is filed under Section 482 of Cr.P.C, to direct the 1st respondent to
proceed against the 2nd respondent under Section 22 of the Protection of
Child from Sexual Offences Act, 2012, in the light of the order passed by
the Hon'ble Court in N.Chandra Mohan Vs. State reported in 2019 (3)
MWN (Crl) 588,within the time stipulated by this Court.
PRAYER in Crl.O.P.(MD) No.8802 of 2021: Criminal Original Petition
is filed under Section 482 of Cr.P.C, to direct the 1st respondent to file the
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final report, based upon the statement of the petitioner dated 29.05.2021
in connection with Crime No.376 of 2021 dated 23.04.2021 on the file of
the 1st respondent within the time stipulated by this Court.
For petitioner
in both Crl.O.Ps., : Mr.R.Anand for
Mr.I.Pinaygash
For R1
in both Crl.O.Ps., : Mr.Hasun Mohammed Jinnah
State Public Prosecutor for
Mr.R.M.Anbunithi
Additional Public Prosecutor
For R2
in both Crl.O.Ps., : Mr.P.Sepana @ Sree
COMMON ORDER
Crl.O.P.(MD) No.8801 of 2021 is filed seeking direction to the 1st
respondent to proceed the case against the 2nd respondent under Section
22 of the Protection of Child from Sexual Offences Act, 2012, on the
basis of the representation dated 29.05.2021, within the time stipulated
by this Court.
2.Crl.O.P.(MD) No.8802 of 2021 is filed seeking direction to the
1st respondent to file the final report, based upon the statement given by
this petitioner dated 29.05.2021 in connection with Crime No.376 of
2021 dated 23.04.2021 on the file of the 1st respondent within the time
stipulated by this Court.
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3.The facts in brief are as follows:-
4.The petitioner, who is aged about 18 years and 2 months, is
alleged to be the victim of the crime in Crime No.376 of 2021, which
was registered, on the basis of the complaint given by the 2 nd respondent
herein for the offences punishable under Sections 8, 11(1), 12, 17 and
21(2) of the Protection of Child from Sexual Offences Act, 2012.
5.When the petitioner was doing her online classes, she was
talking with her friends in a friendly manner. That was misunderstood by
her father. However, he gave a complaint on wrong impression to the
Correspondent of the School, in which, the petitioner was studying. The
3rd respondent was working as a Teacher in the aforesaid school. After
realizing the same, the father of the petitioner withdrew the complaint.
He also attended the enquiry conducted by the Child Welfare Committee
and informed the subsequent development. However, the 2nd respondent,
who has filed the complaint, is in noway connected with the aforesaid
incident, based upon which, the aforesaid case has been registered.
6.During the course of statement under Section 164 of Cr.P.C.,
before the learned Judicial Magistrate-cum-Additional Mahila Judge, the
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petitioner stated about the true facts and informed the Court that there
was no such occurrence and the offence as alleged in the FIR. Since false
case has been launched by the 2nd respondent, this petition, namely
Crl.O.P.(MD) No.8802 of 2021, came to be filed seeking direction to the
1st respondent to file the final report on the basis of the statement of the
petitioner, dated 29.05.2021, which is a representation sent by the
petitioner.
7.Crl.O.P.(MD) No.8801 of 2021 is filed seeking the aforesaid
relief on the basis of the judgment reported in 2019 (3) MWN (Crl) 588
(N.Chandra Mohan Vs. State), since a false information has been given
by the 2nd respondent to the 1st respondent, based upon which, the FIR
has been registered.
8.Heard both sides.
9.According to the petitioner, she is an unfortunate victim of the
crime that has been registered against the 3rd respondent, based upon the
false complaint given by the 2nd respondent to the 1st respondent. It is not
necessary to go into the allegation that has been made by the father of the
petitioner in detail, since the petitioner had expressed genuine grievance
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Crl.O.P.(MD)Nos.8801 and 8802 of 2021
not only with regard to her right to privacy, but also keeping in mind her
future. It is suffice to say that based upon the complaint given by the
father of the petitioner, enquiry was undertaken against the 3rd respondent
about his involvement as well as the alleged offences.
10.The petitioner would state that based upon the misconception of
facts only the father of the petitioner gave a complaint and after realizing
the fact that there is no truth in it, he withdrew the same. However, the 3rd
respondent, who claims to be the Correspondent in a weekly Magazine,
has launched the complaint, based upon which, the case has been
registered.
11.Many things happened and many developments took place,
subsequent to the complaint given by the father of the petitioner and
when the matter is taken up for hearing, at the time of admission itself,
this Court fumed at the petitioner's counsel as to what is the intention to
file the petition or what prompted him to screen offender, who alleged to
have involved in the sexual abuses of the school children. But the learned
counsel for the petitioner strenuously submitted before this Court to the
effect that the petitioner is not interested in the later development with
regard to the allegation that has been made against the 3 rd respondent, but
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she wants to keep her privacy absolute and does not want to undergo the
ordeal of harassment during the course of investigation and trial, keeping
in mind the future life.
12.As like any other normal father in the ordinary life, the father of
the petitioner also seems to be interested in protecting the welfare of the
child, but at the same time, it must also be noted that it is the duty of the
father of the petitioner to help the State to bring the culprit to undergo
trial. The learned counsel for the petitioner would submit that absolutely
the complaint given by the father of the petitioner to the school authority
was later found to be false and after realizing the same only, he withdrew
the complaint.
13.The learned Public Prosecutor appearing for the State would
submit that the statements of the father of the petitioner and the petitioner
herself are in the sealed cover. Since it is a sealed confidential
communication that has been made by the learned Public Prosecutor, the
same could not be discussed in this order. At the same time, it may not
be proper on the part of this Court to decide this matter on the basis of
the secret information furnished, without giving an opportunity to the
petitioner to explain or go through it. It is suffice to say that we can
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appreciate on the presumption that the petitioner father wanted to protect
the welfare of this petitioner.
14.As I mentioned earlier, it is the duty of every citizen to help the
State to bring the guilt of the culprit. The position of the witnesses in a
criminal or civil prosecution has been more elaborately and repeatedly
discussed in various judgments, more particularly, in the judgment of the
Hon'ble Supreme Court in the case of Mahender Chawla and another vs
Union Of India Ministry of Home and others dated 05.12.2018. Paragraph
No.3 of the aforesaid judgment reads as under:-
“3) The importance of the witness, particularly in a criminal
trial is highlighted in a book in the following manner:
"In search of truth, he plays that sacred role of the
sun, which eliminates the darkness of ignorance and
illuminates the face of justice, encircled by devils of
humanity and compassion.
xxx xxx xxx The value of witnesses can’t be denied,
keeping in view the dependency of the criminal
proceedings on the testimonies and cooperation of
witnesses in all the stages of the proceedings, especially in
those cases where the prosecution has to establish the
guilt with absolute certainty via oral cross-examination of
witnesses in hearings open to the world at large. In such
cases, the testimony of a witness, even if not as an eye
witness, may prove to be crucial in determining the
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circumstances in which the crime might have been
committed...”
2 Notwithstanding the same, the conditions of
witnesses in Indian Legal System can be termed as
‘pathetic’. There are many threats faced by the witnesses
at various stages of an investigation and then during the
trial of a case. Apart from facing 1 Whittaker Chambers,
WITNESS QUOTES (January 7, 2014, 10.30 am)”
15.In pursuance of the aforesaid judgment, various State
Governments formulated Witness Protection Scheme and inspite of that,
still the witnesses do not feel secure in the present day situation. The
Media has become a trouble maker now. Now, nothing can be kept secret.
In the present day situation, the privacy has become meaningless and the
movement of the each and every person is now under clear scanning. It is
just like walk on the public street. So, whatever the effort that can be put
to protect the interest and identity of the victim or witness will become
meaningless, if it is allowed to be exploited.
16.The another grievance that has been expressed by the petitioner
is that the 3rd respondent, who is a stranger, has stepped into the issue and
lodged the complaint. However, it is seen that the criminal law can be set
in motion by any one. On that ground, the competency of the 3rd
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respondent cannot now be called in question. The only point that can be
answered in this petition is that whether this petitioner can request
herself to discharge from the criminal investigation process and trial or
whether this Court is competent to discharge this petitioner from further
investigation process and trial.
17.When this specific question was put to the learned counsel for
the petitioner, he answered that the complaint that has been given against
the 3rd respondent by the other students may be proceeded and the
petitioner is in noway interested in it. But what she wanted is that at least
in the interest of protecting her future, she must be discharged.
18.However, I am unable to agree with this line of arguments. No
doubt that the petitioner’s future will be in trouble, if she is directed to
participate in the investigation process or trial. Even though safety and
protection of identity are mandate under the Law, the trauma that the
victim of crime undergo in every day life is well known and that cannot
be brushed aside as meaningless or baseless. But, at the same time when
it is a conflict between the protection of welfare of the child under the
guise of protecting identity, privacy and interest of the Society and the
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State in protecting the children from the sexual abuses that cannot and
should not overweigh.
19.As a citizen, the petitioner is duty bound to cooperate with the
State to complete the investigation and participate in the trial
proceedings. Once the identity is disclosed, then her future life will
become problem. That also cannot be ruled out completely. But at the
same time, her duty to the Society and the State is also equally important.
So, both the rights must be evenly balanced. One should not encroach
upon the other. If such sort of plea is entertained or accepted, then the
administration of justice will become a futile exercise, apart from being
become a farce.
20.During the course of arguments, disturbing was also brought to
my notice. When the argument was going before this Court through
online, a complaint was made by the learned counsel for the petitioner to
the effect that large number of police officials have been deployed in the
residence of the petitioner. So, according to him, this will indicate how
much trauma is undergone by the petitioner, because of the investigation.
Immediately, the respondent police was directed to remove and withdraw
all the police personnel from the residence of the petitioner. That was
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also properly responded immediately. So, the over reaction by the police
persons also creates problem to the victim of crime and the witnesses.
This must also be properly attended by the Senior Police Officers.
21.In spite of a specific direction issued by the Hon’ble Supreme
Court in the aforesaid judgment to formulate a child police force, it
appears that in Tamilnadu, it has not been implemented so far. A child
friendly approach by the police is the utmost importance, while they are
dealing with the POCSO matters. Every police man must act, behave,
while dealing the child, as if he or she is the child’s parent. Unless such
an approach is made, the incidents of this nature, namely, the victim or
child abuse coming to the Courts frequently seeking their discharge from
the investigation will become more. This should not be entertained.
22.I am of the considered view that this petitions are devoid of
merits. Moreover, the petitioner cannot direct or dictate the Investigation
Officer to file the final report in a particular manner on the basis of the
representation. The Initiator of the FIR has no role to play during the
course of investigation by dictating the terms upon the Investigation
Officer. Once cognizance of the offence is reported, it is the duty of the
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Investigation Officer to investigate the matter uninfluenced by any of the
influences that can be made by the complainant, witness and the accused
persons. So, neither of them can make out themselves upon the
Investigation Officer. He is a man of free in his own field. At times, it
also recognized by the Hon'ble Supreme Court to the effect that even
though the Court cannot dictate terms upon the Investigation Officer to
do a particular thing, in a particular manner, it is a espoused within the
domain of the Investigation Officer, keeping in mind the fair process of
investigation requires a fair and free approach into the investigation,
unless it is secured, fair investigation is not at all possible. That is why
provisions have been made to explore the grievances of the witnesses,
accused and the complainant, which was available after filing the final
report.
23.However, the learned Public Prosecutor would fairly submit
during the course of argument that the respondent police is ready to take
into account the statement given by the father of the petitioner,
representation made by this petitioner and the subsequent developments
and will file the final report by taking into account all those facts.
According to him, this is a very premature stage either to discharge this
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petitioner or to direct the 1st respondent to file the final report in a
particular manner.
24.This argument on the side of the learned Public Prosecutor
seems to be reasonable and legal. Similarly, the request made by this
petitioner to take action against the 2nd respondent under Section 22 of
the POCSO Act is also out of place. As I mentioned earlier, not only
allegation that has been made against the 3rd respondent is that he
misbehaved with the petitioner but other children are also similarly
affected.
25.The judgment rendered by this Court in the case of
Chandramohan Vs. State reported in 2019 (3) MWN (Crl.) 588 is
entirely different and strange rare factual matrix. That cannot be equated
with this occurrence. So, this request on the part of this petitioner is
liable to be rejected. This petitioner also relied upon number of
judgments to sustain this prayer. I have gone through all the judgments
that has been cited by this petitioner. It appears that over enthusiasm has
been tried to be played by the petitioner under the guise of protecting her
privacy and future life. I have also gone through the CD file that has been
produced before this Court by the learned Public Prosecutor.
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26.For the reasons stated above, I am not discussing in detail about
the factual aspects that has been dealt through CD file. It is suffice to say
that these petitions are not maintainable for the reasons stated above. But
at the same time, because of the recent development also, there shall be a
direction to the 1st respondent herein to investigate the matter strictly in
accordance with law that has been prescribed under Cr.P.C, POCSO Act
and the Rules framed thereunder, keeping in mind that the identity and
future of the petitioner should not be affected because of the
investigation process. At no point of time, the identity of the petitioner
must be disclosed by any one. How, the identity was disclosed to the 3rd
respondent is also not known. This is a very unfortunate thing, even
though he was very careful in the complaint to hide the name of the
victim.
27.I find that these two petitions are liable to be dismissed and
accordingly, the same stand dismissed.
Index : Yes/No 28.10.2021
Internet : Yes/No
mm
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Crl.O.P.(MD)Nos.8801 and 8802 of 2021
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Inspector of Police,
Karimedu Police Station,
Madurai City.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)Nos.8801 and 8802 of 2021
G.ILANGOVAN. J.
mm
common order made in
Crl.O.P.(MD)Nos.8801 and 8802 of 2021
28.10.2021
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