Madras High Court

Shiva Sankar Baba vs State Rep. By on 24 November, 2023

Author: G.K.Ilanthiraiyan

Bench: G.K.Ilanthiraiyan

                                                                               Crl.OP.No.23854 of 2021

                                  'IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 24.11.2023

                                                         CORAM:

                              THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                 Crl.OP.No.23854 of 2021
                                               and Crl.MP.No.13151 of 2021

                1.Shiva Sankar Baba
                2.Janaki Srinivasan                                                  ... Petitioners

                                                            Vs.
                1.State Rep. by,
                  The Inspector of Police,
                  CBCID, OCU Police Station-II,
                  Chennai
                  (crime No.3 of 2021)
                2.Er Rin Tan                                             ... Respondents


                PRAYER: Criminal original petition is filed under Section 482 of Cr.P.C. to

                call for the records pertaining to crime No.3 of 2021 registered by the Inspector

                of Police, CBCID, OCU Police Station-II, Chennai and to quash the FIR as

                against the petitioners.

                                   For Petitioners          : Mr.R.Vijayakumar

                                   For Respondents
                                         For R1              : Mr.A.Gopinath,
                                                              Government Advocate(crl.side)

                                         For R2             : No appearance

https://www.mhc.tn.gov.in/judis
                Page 1 of 20
                                                                           Crl.OP.No.23854 of 2021

                                                       ORDER

This Criminal Original Petition has been filed to quash the

proceedings in crime No.3 of 2021 on the file of the first respondent registered

for the offences under Sections 363, 365, 354, 109 of IPC r/w Section 4 of

Tamilnadu Prohibition of Harassment of Women Act, 1998 as against the

petitioners.

2. The crux of the complaint is that the second respondent lodged

complaint alleging that originally she was residing at Australia along with her

parents. She came to India in the year 2007 for her schooling and joined at

Sushil Hari International Residential School during the year 2007-2008. She

stayed in the hostel from July 2007 to March 2008. During the school, the first

accused had met her and hugged her and she hugged him for getting blessings.

She thought that it is a traditional way to get blessings from the first accused.

All the teachers and students thought that if the first accused called anybody to

his lounge personally, it was blessings to them. The first accused called the

victim to his lounge. Therefore, she was very happy to go to his lounge. On that

day, at the lounge, she met one Mrs.Janaki Srinivasan who was cleaning the

hall. Thereafter, she came to the first accused and informed about her presence

by code word. The first accused said 'yes' and the said Janaki Srinivasan went https://www.mhc.tn.gov.in/judis

outside. Thereafter, the first accused had taken her to pooja room. He told the

victim to wash her hands and legs and pray the God. After doing that, he had

taken her into his bed room which is next to the pooja room. Immediately, the

room was locked by the first accused and asked her to go to bath room and to

goggle her mouth with mouth freshner. Thereafter, he dragged her to bed and

kissed her in her mouth. He also inserted his hands into her bra and he told

that the said act is to clear her all. Immediately, she came out from the room

and had seen that another girl was standing outside the door. At that juncture,

the said Janaki Srinivasan told her as to why came out. It is an opportunity to

satisfy the first accused and get his blessings. She also warned her not to

disclose anything to anybody that happened inside the room because it is

divine.

2.1 It is further alleged that all the persons who were working there

supported the first accused. Therefore, she could not share the incident to

anybody. Thereafter, she continued her studies for six months and kept

distance away from the first accused. Due to the said trauma, she could not

continue her studies and obtained transfer certificate with great difficulty and

moved to Australia. After came to understand about the arrest of the first

accused in a case of commission of sexual abuse with the students, she lodged https://www.mhc.tn.gov.in/judis

the complaint on 19.08.2021. On receipt of the same, the first respondent

registered FIR in crime No.3 of 2021 for the offence under Sections 363, 365,

354, 109 of IPC and Section 4 of Tamilnadu Prohibition of Harassment of

Women Act.

3. The learned counsel for the petitioners would submit that the

alleged occurrence had taken place from 01.07.2007 to 31.03.2008. Whereas

the present complaint was lodged only on 19.08.2021. The said huge delay is

fatal to the case of the prosecution. There is absolutely no proper explanation

from the victim to lodge the belated complaint, that too after 13 years. That

apart, there is no iota of material in the complaint to attract the offence under

Sections 363 & 365 of IPC. Insofar as the offence under Section 354 of IPC,

the maximum punishment prescribed is only two years. As per section 468 of

Cr.P.C., within a period of three years from the date of the commission of

offence, the defacto complainant should have initiated the prosecution.

Therefore, the entire FIR cannot be sustained and the same is liable to be

quashed.

3.1 In support of his contention, the learned counsel for the petitioners

relied upon the judgment of this Court rendered in Crl.OP.No.23806 of 2021

dated 01.03.2023, wherein the connected FIR in crime No.2 of 2021 on the file https://www.mhc.tn.gov.in/judis

of the first respondent in respect of the first accused was quashed by this

Court, wherein this Court held that the case is barred by limitation in view of

the delay of nearly seven years, excluding the permissible time limit of three

years from the date of the commission of the offence. While settling or

reasserting a legal position, the court cannot be influenced by the nature of the

crime or the criminal. So while dealing with the interpretation of the law and

understanding its import, the court cannot have any different attitude by

reading more about the type of the offender than on the law which governs the

situation on hand. The court can take cognizance of the offence and not the

offender. He further submitted that the present complaint has been lodged by

the second respondent at her age of 32 years and the FIR did not prima facie

constitute any offence or make out case against the petitioners.

3.2 He also relied upon the judgment of the Hon'ble Supreme Court of

India in the case of Sarah Mathew Vs. Institute of Cardio Vascular Diseases

by its Director Dr.K.M.Cherian and Others reported in (2014) 2 SCC 62, in

which the Hon'ble Supreme Court of India elaborately dealt with provision

under Sections 468, 469, 470 & 473 Cr.P.C., and held that the date when

criminal complaint is filed or date of institution of criminal prosecution and not

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the date when a court takes cognizance. Therefore, the belated complaint, that

too filed after 13 years would cause great prejudice to the petitioners. Hence, he

prayed for quashment of the FIR.

4. The learned Government Advocate (crl.side) appearing for the first

respondent submitted that provision under Section 468 Cr.P.C. is applicable

while filing the private complaint or the final report. In the case on hand, there

was delay in lodgment of the complaint. In the complaint itself, she

categorically stated the reasons for delay in lodgment of complaint. That apart,

these types of complaints cannot be expected to be lodged immediately. It

depends upon the mental stability of the victim. In support of his contention, he

relied upon the judgment of the Hon'ble Supreme Court of India in the case of

State of Punjab vs. Gurmit Singh and others reported in (1996) 2 SCC 384.

He also submitted that this Court already directed to record statement from the

victim under Section 164 of Cr.P.C. Since the victim is residing at Australia, the

first respondent filed application before the Additional Mahila Court,

Chengalpet seeking permission to record her statement through video

conference, which was allowed. However, the Presiding Officer is not there and

as such, it is getting delay.

https://www.mhc.tn.gov.in/judis

5. Heard, the learned counsel appearing for the petitioners and the

learned Government Advocate(crl.side) appearing for the first respondent.

6. The only ground raised in this petition is delay in lodgment of

complaint. The occurrence had taken place from 01.07.2007 to 31.03.2008.

When the victim was studying in the school belongs to the first accused during

the year 2007-2008, all the students used to get blessings from the first accused

by hugging him. The said thought was taught by the teachers of the said

school. The victim also believed that only by hugging, she would get blessings

from him. The first accused was posed as God and used to bless all the

students. While being so, she was asked to meet the first accused to get his

blessings. The second respondent signalled the first accused about the victim's

presence by code words. Immediately, she was called by the first accused and

she was dragged into his bed room. Thereafter, in the guise of blessings, the

first accused had inserted his hands into her inner wears. Immediately

thereafter, the victim came out from the room and she was also threatened not

to disclose to anybody about the said occurrence. The victim was a minor at

that juncture and also came from Australia. She could not express her grievance

to anybody since all the teachers were working in the said school under the

control of the first accused. Therefore, no one was ready to hear the grievance https://www.mhc.tn.gov.in/judis

of the victim. Thereafter, she could not continue her studies and obtained

transfer certificate after so much of pain and difficulties. Therefore, there was

delay in lodgment of complaint. The first accused so far involved in eight

similar cases. One of the FIR was under challenge before this Court in

Crl.OP.No.23806 of 2021 and this Court allowed the same by order dated

01.03.2023. However, it is now stayed by the Hon'ble Supreme Court of India

in a special leave petition. So far, the first accused involved in the following

cases:

S. Crime number & section of law Facts of the case No 1 Kancheepuram, CBCID Cr. No. On the birthday of the victim i.e. 1/2021, u/s. 354, 363, 365, 366 IPC on 18.12.2015, she was taken to & Section 4 of Tamil Nadu the lounge of A1-Siva Shankar Prohibition of Harassment of Women Baba by A2 Bharathi and at the Act, 2002 and Section 8, 10, 12 & 17 lounge, A1 sexually abused the of Protection of Child from Sexual victim. Further, A3 Sushmita Offences Act, 2012 Aswin Kumar, an old alumni, (Case re-registered on 13.06.2021) instigated the victim to go for dating with A1 and also advised her not to disclose the matter with her parents. Further, another victim had stated that in the year 2018, she was taken to the lounge by A4 Deepa and at the lounge she was forced to drink liquor by the A1, thereafter, she was sexually harassed by the A1.

2 Kancheepuram, CBCID Cr. No. During May 2020, the victim had 2/2021, u/s. 354, 363, 365, 366 IPC, sent "tiktok" videos to A1 Siva Section 4 of TNPHW Act, 2002, Shankar Baba. During that time, https://www.mhc.tn.gov.in/judis

S. Crime number & section of law Facts of the case No Section 8, 10, 12 of POCSO Act, A1 had appreciated the victim 2012 & Section 67 of Information using double meaning words and Technology Act (Case re-registered also sent abusive E-Mail to the on 13.06.2021) victim. Further, A1 called her over whatsApp video call and asked the victim to remove her top, which was refused by the victim.

3 Kancheepuram, CBCID Cr. No. During the month of April 2012, 3/2021, u/s. 354, 363, 365, 366, 109 when the victim was studying in IPC & Section 4 of Tamil Nadu 12th Standard, she was taken to Prohibition of Harassment of Women the lounge of the A1 Siva Shankar Act, 2002 Baba by the A2 Divya Balasubramanian and at the (Case re-registered on 13.06.2021) lounge, A1 forcefully hugged and kissed the victim. Thereafter, in the month of May 2012, A3 Sushmita again forcefully took the victim along with her sister, who was studying in VIII Standard to the accused Siva Shankar Baba's lounge and again at the lounge, accused Sivashankar Baba with sexual intent touched their private parts and also sexually harassed them.

4 CBCID, OCU-II Cr. No.2/2021, u/s. During the month of June 2010, 354 IPC & Section 4 of Tamil Nadu when the victim went to meet the Prohibition of Harassment of Women accused Siva Shankar Baba at his Act 2002 (Case registered on lounge in order to make his son to 19.08.2021) continue in the school, as TC was isued, the accused Siva Shankar Baba grabbed her hand and pulled her towards him with sexual intent and hugged her intending to outrage her modesty.

https://www.mhc.tn.gov.in/judis

S. Crime number & section of law Facts of the case No 5 CB CID, Metro Cr. No.9/2021, u/s. 7 During the year 2016, 2018 and r/w 8, 9(1) r/w 10, 9(f) r/w 10, 11(ii) 2019, on Pongal Eve, at night, the r/w 12, 12 r/w 17, 10 r/w 17 victim was directed to the lounge Protection of Child from Sexual of A1 Siva Shankar Baba by A4 Offences Act, 77 Juvenile Justice Act Deekshita through her father / A3 2015, 354 A(2) IPC Badri. At the lounge, the victim was forced to drink and she was (Case registered on 29.10.2021) molested by the accused A1 Siva Shankar Baba. Thereafter, A1 Siva Shankar Baba, A2 Deepa, A4 Deekshitha and A6 Ganesh Swaminathan were engaged in group sex in front of the victim and A5 Gayathri in the bed room of A1.

6 CB CID, Metro Cr.No.10/2021, u/s. During the month of July 2015, 8, 9(1) r/w. 10, 9(f) r/w. 10, 11(ii) victim was taken to A1 Siva r/w. 12 r/w. 17, 10 r/w. 17 Protection Shankar Baba's lounge by A2 of Child from Sexual Offences Act, Karuna @ Karunambigai for the 2012, Section 77 of Juvenile Justice purpose of sexual activities and at Act 2015 & Section 354A(2) IPC the lounge, the victim was forced (Case registered on 09.11.2021) to drink liquor. Thereafter, the victim was molested by the accused A1 Siva Shankar Baba two times.

7 CBCID, OCU-II Cr. No.4/2021, u/s During the period from 2013- 376, 366A, 506(1) IPC, Section 5(f) 2015, when the victim was r/w. 6 of POCSO Act, 2012, Section studying 11th and 12th Standard 5(1) r/w. 6 of POCSO Act, 2012, in Sushil Hari International Section 9(1) r/w. 10 of POCSO Act, Residential School, she was 2012, Section 6 r/w. 17 of POCSO sexually abused by A1 Siva Act, 2012, Section 10 r/w. 17 of Shankar Baba and A2 Sunil with POCSO Act 2012 (Case re-registered the assistance of A3, A4 and A5.

https://www.mhc.tn.gov.in/judis

S. Crime number & section of law Facts of the case No on 15.12.2021) Further, the victim was threatened and she was repeatedly sexually abused by the A1 and A2 multiple times till April 2021.

7. The first accused had committed sexual offence as against the

innocent children / students with the aid of other teachers in the Sushil Hari

International Residential School. He targeted innocent children and students

who are economically weak or children of single parent or single parent and

sexually abused them on various occasions. That apart, length of delay is not

sufficient in itself to warrant a finding that the accused was deprived of the

right to a speedy trial. Rather, it is only one of the factors to be considered and

must be weighed against other factors. There cannot be universal rule in this

regard. It is a balancing process while determining as to whether the accused's

right to speedy trial has been violated or not. The delay caused has to be

weighed on the factual score, regard being had to the nature of the offence and

the concept of social justice and cry of the collective. Further, the quashment of

the criminal proceedings pending against the accused on the ground of

inordinate delay is not a straight-jacket formula and whether a particular

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criminal proceedings can be quashed solely on that ground or not, is a matter to

be considered only by taking into consideration all the relevant factors.

8. The learned counsel for the petitioners also relied upon the

judgment of the Hon'ble Supreme Court of India in the case of Sarah Mathew

Vs. Institute of Cardio Vascular Diseases by its Director Dr.K.M.Cherian

and Others reported in (2014) 2 SCC 62, wherein it is held that for the

purpose of computing the period of limitation under Section 482 Cr.P.C., the

relevant date is the date of filing of the complaint or the date of institution of

prosecution and not the date on which the Magistrate takes cognizance.

Therefore, the said judgment is pertaining to the limitation under Section 468

of Cr.P.C. In the case on hand, there is delay in lodgment of complaint before

the police authority. Therefore, the above judgment is not applicable to the case

on hand. For lodgment of compliant, there may be delay for several reasons.

Normally for the crime against women, the delay cannot be a relevant material

to quash the entire proceedings.

9. In the case of State of Punjab Vs. Gurmit Singh and Others

reported in (1996) 2 SCC 384, the Hon'ble Supreme Court of India following

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various judgments, held that the courts cannot overlook the fact that in sexual

offence, delay in the lodging of FIR can be due to variety of reasons,

particularly the reluctance of the prosecutrix or her family members to go to the

police station and complain about the incident which concerns the reputation of

the prosecutrix and the honour of her family. It is only after giving it a cool

thought that a complaint of sexual offence is generally lodged. In the case on

hand, admittedly the victim is residing in Australia. Only for the purpose of

schooling, she came down to India and joined in the school of the first accused.

After the occurrence, she obtained transfer certificate and went to Australia to

continue her studies. Therefore, the delay in lodgment of complaint is duly

explained by the victim and it is not the ground to quash the FIR on its

threshold.

10. Recently, Hon'ble Supreme Court of India in the case of Niharika

Infrastructure Private Limited Vs. State of Maharashtra and others reported

in 2021 SCC Online SC 315, held as follows:

..... xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the

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investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr. P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr. P.C., only has to consider

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whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; ....

11. It is also relevant to rely upon the judgment of the Hon'ble

Supreme Court of India passed in Crl.A.No.255 of 2019 dated 12.02.2019 in

the case of Sau. Kamal Shivaji Pokarnekar vs. the State of Maharashtra &

ors., wherein it is held as follows:-

"4. The only point that arises for our consideration in this case is whether the High Court was right in setting aside the order by which process was issued. It is settled law that the Magistrate, at the stage of taking cognizance and summoning, is required to apply his judicial mind only with a view to taking cognizance of the offence, or in other words, to find out whether a prima facie case has been made out for summoning the accused persons. The learned Magistrate is not required to evaluate the merits of the material or evidence in support of the complaint, because the Magistrate must not undertake the exercise to find out whether the materials would lead to a conviction or not.

5. Quashing the criminal proceedings is called for https://www.mhc.tn.gov.in/judis

only in a case where the complaint does not disclose any offence, or is frivolous, vexatious, or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. It is not necessary that a meticulous analysis of the case should be done before the Trial to find out whether the case would end in conviction or acquittal. If it appears on a reading of the complaint and consideration of the allegations therein, in the light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for the High Court to interfere. ......................

9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the

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allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted."

12. Therefore, the grounds raised by the petitioners cannot be

considered to quash the FIR on the ground of delay. As explained, this Court

finds there is prima facie case to attract the offence under Sections 363, 365,

354, 109 of IPC r/w Section 4 of Tamilnadu Prohibition of Harassment of

Women Act as against the petitioners.

13. In view of the above discussion, this Court is not inclined to quash

the First Information Report. Accordingly, this Criminal Original Petition

stands dismissed. However, the first respondent is directed to complete the

investigation in Crime No.3 of 2021 and file a final report within a period of

twelve weeks from the date of receipt of copy of this Order, before the

jurisdiction Magistrate, if not already filed. Consequently, connected

miscellaneous petition is closed.