GOURESH MEHRA Vs. STATE

JUDGEMENT

(1.) The petitioners who are father and son are arrayed as accused in case pending trial in C.C. No.1622 of 2010 on the file of the Chief Metropolitan Magistrate, Egmore, Chennai, seek quash of proceedings against them. In such case, they stand charged of offences u/s. 506(i) IPC and 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998. The offence u/s.506(i) IPC is said to be attracted, since these petitioners caused alarming obnoxious e-mails threatening kidnapping by hiring goondas to harm and rape the defacto complainants daughters. On allegations of causing untold hardship and mental harassment by means of obnoxious and threatening e-mails received by the defacto complainant, of the first petitioner not having shown any interest in having a normal marital relationship with his wife, who is the daughter of the defacto complainant, of subjecting her to huge embarrassment and mental torture by casting aspersions of her not being capable of having normal marital relationship and of her being mentally unsound and inept and harassing her to undergo medical tests, charge u/s.4 of the Tamil Nadu Prohibition of Harassment of Women Act, 1998 is made.

(2.) The defacto complainants daughter and the first accused were married at Chennai on 23.11.2008. The couple set up residence at Bangalore but differences immediately arose. A complaint had been lodged by the wife of the first petitioner/ daughter of the defacto complainant before the Commissioner of Police, Bangalore complaining of dowry harassment in Cr.No.289 of 2009 under section 498A, 506 IPC and Section 3 of Dowry Prohibition Act on 17.6.2009. The defacto complainant had preferred a complaint before the Cyber Crime branch regarding the receipt of threatening e-mails, thought it appropriate not to pursue the same but to make an attempt at reconciliation keeping in mind the interests of his daughter, but on failure of such efforts, moved the Chief Metropolitan Magistrate, Egmore, who had directed investigation under section 156 (3) CrPC resulting in registration of Cr. No. 396 of 2009 and the filing of charge sheet. The first petitioner has moved an application for annulment of marriage before the Principal Judge, Family Court, Bangalore in M.C. No.1294 of 2009 on 25.05.2009 and on application for transfer in Transfer Petition No.848 of 2009, the Honble Apex Court under orders dated 19.10.2009 was pleased to transfer the same to the First Additional Family Court, Chennai to be tried along with case pending in M.C No.302 of 2009 filed by the first petitioners wife/ defacto complainants daughter seeking maintenance.

(3.) Learned Senior counsel Sri. A.R.L. Sundaresan, appearing for the petitioners informed that a transfer petition has been moved by the wife of the first petitioner/ daughter of the defacto complainant before the Apex Court seeking transfer of the case arising out of the complaint in Cr. No. 289 of 2009, Commissioner of Police, Bangalore, (subsequently registered in FIR No. 129 of 2009 dated 01.07.2009 on the file of Basavanagudi Mahila Police Station, Bangalore, Karnataka) to the Court of the Chief Metropolitan Magistrate, Egmore, wherein the present case is pending trial. He submitted that in respect of the same allegations, giving rise to the present case, part of the investigation was conducted by the Bangalore police who had registered FIR. No.129 of 2009, for offences u/s. 498-A, 506 of IPC and section 3 of Dowry Prohibition Act. He would take this Court through the Section 161(3) statements of the witnesses, the pleadings of the defacto complainant in the transfer application now pending adjudication before the Apex Court and the reference to the e-mails therein to substantiate such contentions. He would state that the allegations relating to threat through e-mails, spoken of in the complaint of the petitioner giving rise to the present case formed the subject matter of the earlier complaint preferred by his daughter before the Bangalore police. The contention is that there cannot be two parallel investigations and charge sheets in respect of the one and same offence. He would next submit that all but one of the allegedly offending e-mails were of May 2009. Even according to the defacto complainant, his earlier complaint to Cyber Crime police had not been pursued ostensibly owing to attempts at reconciliation in the best interests of his daughter. As regards the offending e-mail of December 2009, the very charge sheet informed that the source thereof was not known. Learned senior counsel would submit that in these circumstances the lower court ought not to have taken cognizance. None of the allegedly offending e-mails had been filed along with the charge sheet and the lower court without calling therefor and perusing the same, had proceeded to take cognizance, when the very foundation of the prosecution case was not before it. He would take exception to the fact that the certificate issued under Section 65-B of the Indian Evidence Act was not accompanied by the e-mails in respect of which such certificate had been issued. The Senior counsel would rely on the decisions in Noble Mohandass v. State, 1989 Crl.LJ 669, Amitabh Adhar & anr. v. Nct of Delhi & anr. 2000 Crl.LJ 4772 and Rajan v. State (2008) 3 MLJ (Crl.) 776 to inform that unless the person against whom the threat is issued, actually felt threatened or was alarmed, no offence under section 506 could be imputed. Learned senior counsel would take this court to the typed set towards demonstrating that the timing of the alleged messages did not tally with the timing of the 'log in and log out' particulars informed by the service provider. Submitting that the defacto complainant had approached the Magistrate by way of complaint after the first petitioner had moved a petition for annulment of marriage, such action is informed to be a malafide one. The final submission is that in the facts and circumstances of the present case the Tamil Nadu Prohibition of Harassment of Women Act would not stand attracted.