Madras High Court
Dharmarajan vs The State Represented By on 2 February, 2022
Crl.O.P.(MD)No.512 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02.02.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P(MD)No.512 of 2022
and
Cr.M.P(MD)Nos.395 & 396 of 2022
Dharmarajan ... Petitioner/Sole Accused
v.
1.The State represented by
The Inspector of Police,
Subramaniapuram Police Station,
Madurai City, Madurai.
(Crime No.1342 of 2020) ... 1st Respondent/
Complainant
2.Anbudeivamani ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for
the entire records relating to the proceedings in C.C.No.863 of 2021 on the file
of the learned Judicial Magistrate No.IV, Madurai and quash the same insofar
as the petitioner is concerned.
For Petitioner : Mr.T.Antony Arulraj
For Respondents : Mr.B.Thanga Aravindh
Government Advocate (Crl.Side) for R.1
https://www.mhc.tn.gov.in/judis
1/8
Crl.O.P.(MD)No.512 of 2022
ORDER
Heard the learned counsel appearing for the petitioner and the learned
Government Advocate (Criminal Side) appearing for the first respondent.
Even though the defacto complainant has been served, he has not chosen to
enter appearance.
2.The petitioner is facing trial in C.C No.863 of 2021 on the file of
Judicial Magistrate No.4, Madurai for the offences under Sections 427, 294(b),
323 and 506(1) of IPC. The case of the prosecution is that the defacto
complainant and the petitioner are residing as tenants in an apartment
complex. The relationship between the two families is under strain. On
05.07.2020 at about 08.30 a.m, when the defacto complainant went to the
terrace, he saw that his mother's name has been written along with the
number nine. This number translated in Tamil language is an insensitive and
derogatory manner of referring to the transgenders. The defacto
complainant photographed the same. He suspected that it must have been
the handiwork of the petitioner's son. He went to the apartment of the
petitioner to confront him. Quarrel broke out. The defacto complainant's
mobile phone fell and got damaged. He also suffered some minor scratches
for which he took treatment in a private hospital as an outpatient. Crime No.
1342 of 2020 was registered on the file of the first respondent. After
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Crl.O.P.(MD)No.512 of 2022
investigation, final report was filed and cognizance of the aforesaid offences
was taken. To quash the prosecution, this criminal original petition has been
filed.
3.I must castigate and condemn the first respondent for having arrayed
the petitioner's son as the second accused in the FIR. It is beyond dispute
that the petitioner's son is a special child. The pass book issued by the
District Welfare Officer for the Differently Abled, Madurai certifies the
petitioner's son as suffering from mental retardation. That is why, while filing
the final report, the first respondent had deleted his name and confined the
prosecution to the petitioner alone. The petitioner's counsel pointed out with
anguish that the petitioner's daughter is also a special child and the entire
family was taken to the police station on the occurrence date and detained for
quite some time. A mere look and a few minutes of observation would have
been sufficient to find out that the petitioner's son is a special child. I fail to
understand as to how the first respondent had the heart to still implicate him
as an accused.
4.India is a signatory to the U.N Convention on the Rights of Persons
with Disabilities. To give effect to the convention, the Indian Parliament
enacted the Rights of Persons With Disabilities Act, 2016. Section 2(s) of the
Act defines a “person with disability” as one with long term physical, mental,
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Crl.O.P.(MD)No.512 of 2022
intellectual or sensory impairment which, in interaction with barriers, hinders
his full and effective participation in society equally with others. The schedule
to the Act sets out certain specified disabilities. There are various kinds of
disabilities such as physical, intellectual, mental and neurological. “Autism
spectrum disorder” means a neuro-developmental condition typically
appearing in the first three years of life that significantly affects a person's
ability to communicate, understand relationships and relate to others, and is
frequently associated with unusual or stereotypical rituals or behaviors.
“Mental illness” means a substantial disorder of thinking, mood, perception,
orientation or memory that grossly impairs judgment, behavior, capacity to
recognize reality or ability to meet the ordinary demands of life but does not
include retardation. It is not known under which category the petitioner's
son would fall. But the fact remains that he is a person with special needs.
5.Section 5 of the Act states that the persons with disabilities shall have
the right to live in the community. Section 2(y) talks of “reasonable
accommodation” as meaning necessary and appropriate modification and
adjustments, without imposing a disproportionate or undue burden to a
particular case, to ensure to persons with disabilities the enjoyment or
exercise of rights equally with others. The Hon'ble Supreme Court of India in
Vikash Kumar v. UPSC (2021) 5 SCC 370 observed that the principle of
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Crl.O.P.(MD)No.512 of 2022
reasonable accommodation captures the positive obligation of the State and
private parties to provide additional support to persons with disabilities to
facilitate their full and effective participation in the society. Reasonable
accommodation is the instrumentality-are an obligation as a society-to enable
the disabled to enjoy the constitutional guarantee of equality and non-
discrimination. In this case, the defacto complainant who knew about the
condition of the petitioner's children could have shown reasonable
accommodation. He did not. The first respondent fared worse. He not only
brought the special children to the police station but also included the
petitioner's son in the first information report. I find it inexcusable. I would
expect the Commissioner of Police, Madurai City to take note of the
happenings in this case and sensitize the police officers working under him to
be considerate when they come in contact with such special children.
6.Even a cursory reading of the prosecution case would show that it
was the defacto complainant who invited the whole trouble. He needlessly
assumed that the offending writing was by the petitioner's son. The
petitioner's counsel vehemently questioned the said assumption. Even
assuming it to be true, the defacto complainant ought to have ignored the
same in view of the mental condition of the petitioner's son. The principle of
reasonable accommodation expects such a response. The defacto
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Crl.O.P.(MD)No.512 of 2022
complainant's mother in her statement under Section 161 Cr.P.C stated that it
was her son who raised his hand first. Such an aggressive gesture naturally
led to reaction. There was a minor scuffle. The petitioner did not intend to
damage the defacto complainant’s iphone. It was the defacto complainant
who had taken the iphone to show it to the petitioner. During the scuffle, the
iphone fell accidentally and suffered some damage. Section 427 of IPC will
be attracted only if the accused had an intention to cause mischief. That is
clearly not the case here. Since the defacto complainant picked up quarrel
and that too by going to the house of the petitioner and since the occurrence
was of a trivial nature, I deem it fit and appropriate to invoke Section 95 of
IPC and quash the impugned proceedings. This Criminal Original Petition is
allowed. Consequently, connected miscellaneous petitions are closed.
02.02.2022
Index : Yes / No
Internet : Yes/ No
skm
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.
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Crl.O.P.(MD)No.512 of 2022
To
1.The Judicial Magistrate No.IV, Madurai.
2.The Inspector of Police,
Subramaniapuram Police Station,
Madurai City, Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.512 of 2022
G.R.SWAMINATHAN, J.
skm
Crl.O.P(MD)No.512 of 2022
and
Cr.M.P(MD)Nos.395 & 396 of 2022
02.02.2022
https://www.mhc.tn.gov.in/judis
