G. Chandrasekharan, J.
1. This Criminal Original Petition has been filed to call for the records and quash the First Information Report in Crime No. 3 of 2023 dated 30.03.2023 on the file of 1st respondent police.
2. Learned Senior counsel for the petitioners submitted that, petitioners are the accused in Crime No. 3 of 2023 registered for the offences under Sections 8, 12 of Protection of Child From Sexual Offences Act, 2012 and 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The allegations made in the First Information Report are totally false. The First Information Report came to be registered, on the influence of 2nd respondent/defacto complainant's mother, who was a former high ranking police officer.
2.1. The marriage between the 2nd petitioner and 2nd respondent had taken place in the year 2007 and they had one female child aged 14 years and male child aged 8 years. Due to marital discard, 2nd petitioner and 2nd respondent are living separately. The reason for their separation is that, 2nd petitioner was ill treated and beaten by the 2nd respondent on several occasions. 2nd petitioner gave police complaint against the 2nd respondent with the Commissioner of Police, Chennai on 30.12.2021 and filed a complaint under Domestic Violence Act in DVC. No. 95 of 2022 on the file of learned Metropolitan Magistrate, Saidapet. She also gave a complaint against 2nd respondent and one Indira Priyadarshini to the Commissioner of Police, Salem on 28.09.2022. As a retaliation, 2nd respondent made Indira Priyadharshini to give a complaint against the 2nd petitioner, resulting in registration of First Information Report in Crime No. 310 of 2022 at Thirumangalam Police station for the offences under Sections 294(b), 355, 323 and 506(i) IPC. 2nd respondent/defacto complainant attempted to lodge another complaint through his maid namely Sabeena against the 2nd petitioner. 2nd petitioner was arrested on 29.10.2022 at the instigation of 2nd respondent's mother. 2nd petitioner filed H.C.P. No. 2607 of 2022 seeking custody of her children. However, this Court disposed the petition on 22.12.2022, with a direction to the 2nd respondent to take care of the children in his custody.
2.2. The case of the prosecution in Crime No. 3 of 2023 is that on 22.12.2022, 2nd petitioner's daughter called her over phone to return her jewels, costly watch, clothes and cosmetics purchased by the 2nd respondent. It is stated that, 2nd petitioner had shouted at and abused her and 1st petitioner threatened and abused her during the mobile conversation. It is the further case of the prosecution that, 2nd respondent messaged 2nd petitioner to return the articles of the child and 2nd petitioner replied him to send the child and collect the articles. On 23.12.2022, at about 7.00 a.m, when the child went to 1st petitioner home, she was scolded by the petitioners in abusive language and 1st petitioner slapped her and touched her private parts inappropriately and told her that her articles would not be returned. It is submitted that, these allegations are totally false and made only to book the petitioners under POCSO Act.
2.3. Learned Senior counsel for the petitioners further submitted that, the visit of the child to the petitioner's house was videographed using a cell phone. The video shows that, the child had come with a person and taken her belongings and nothing of the allegations stated in the First Information Report had taken place, especially the allegation with regard to sexual abuse, said to have been committed by the 1st petitioner against the child. The cell phone with video recording was sent to the Truth Labs for analysis. Petitioners are prepared to produce the original mobile phone with video recording of the incidents that had happened at the residence of the petitioners on 23.12.2022 or the secondary evidence of video recording with certificate under Section 65B of Indian Evidence Act. If the 1st respondent police analyzes the video recording, it would be evident that, the allegations made in the First Information Report are totally false. He also produced a copy of the video recording for the perusal of this Court. Unless this Court interferes under Section 482 Cr.P.C and quashes the First Information Report, petitioners would be harassed by way of prosecution on the basis of false complaint.
3. In reply, learned Government Advocate (Criminal side) submitted that, victim girl gave a statement under Section 164 Cr.P.C substantiating the allegations made in the First Information Report. The investigation is in preliminary stage and thus, he prayed for dismissing this petition.
4. Learned Senior counsel for the 2nd respondent submitted that, there is a contradiction with regard to electronic evidence available in connection with the incident. It is stated in the petition that, CCTV footage is available, however, now it is claimed that, video recorded by cell phone is available. The possibility of manufacturing/fabricating the video recording cannot be ruled out. The First Information Report allegations clearly make out commission of offence punishable under POSCO Act by the petitioners. The victim girl had given clear statement under Section 164 Cr.P.C with regard to the sexual harassment that had taken place on 23.12.2022 and prior to that. Therefore, petitioners cannot seek quashment of First Information Report, on the basis of the video recording. The video recording cannot looked into now, unless it is seized by the police as an evidence and produce in the Court. It is reiterated that, victim girl was harassed not only on 23.12.2022, but also on previous occasions by the 1st petitioner. Proceedings under POCSO Act cannot be quashed as a matter of routine and offence against a child should be dealt with iron hand.
"(i) In support of his submissions, he relied on the judgment reported in [2018 17 SCC 291] in the case of Alakh Alok Srivastava Vs. Union of India and others, to bring to the notice of this Court about the direction issued by the Hon'ble Supreme Court to establish Special Courts for trying POCSO Act cases, speedy trial of cases in time bound manner, constitution of Committee to monitor of trial under POCSO Act cases, constitution of Special Task Force to monitor the investigation, to provide child-friendly atmosphere etc.
(ii) He relied the Judgment reported in [2022 5 SCC 545] [] in the case of Attorney General of India Vs. Satish and another, for the preposition that, the POCSO Act provides presumption of culpable mental stage of the accused under Section 30 of POCSO Act and it is for the accused to prove the contrary. The proof of this aspect can only be considered in the trial and not in an enquiry under Section 482 Cr.P.C
(iii) The judgment reported in [2023 4 SCC 298] [LQ/SC/2022/1386 ;] in the case of State of Maharashtra and another Vs. Dr. Maroti s/o Kashinath Pimpalkar, is relied for the preposition that, if First Information Report and the materials collected disclose a cognizable offence and the final report filed on completion of investigation, reveal that, the ingredients to constitute an offence under the POCSO Act against the accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482 Cr.P.C and undoubtedly they are matters to be done by the trial court at the time of trial. Thus, he submitted that, first information report cannot be quashed and prayed for dismissal of this petition."
5. In reply, learned Senior counsel for the petitioners submitted that, if the allegations that, victim girl was abused by the 1st petitioner, even prior to the incident alleged in the First Information Report are true, as a custodian of the victim girl, 2nd respondent ought to have reported the incident to the police. Failure to report an offence under the POCSO Act would invite punishment under Section 21 of POCSO Act. The fact that, no such incident was reported to the police shows that, the allegation of sexual harassment, prior to the incident alleged in the First Information Report are totally false. He further submitted that, it was wrongly mentioned in the petition as CCTV footage instead of cell phone video recording.
6. Considered the submissions and perused the records.
7. From the narration of facts, it can be gathered that, there is no love lost between the 2nd petitioner and 2nd respondent. Due to failed marriage, they are living separately. It is admitted fact that, 2nd petitioner filed H.C.P. No. 2607 of 2022 and that was disposed by the Hon'ble Division Bench of this Court with the following observation,
"Taking into consideration the overall facts and circumstances, we are convinced that the custody of the children with the father cannot be said to be per se illegal for issuance of a writ of habeas corpus. Since there are serious disputed facts, the same cannot be gone into in the Habeas Corpus Petition under Article 226 of the Constitution of India"
8. It is clear that, the minor children are in custody of the father namely the 2nd respondent. The relevant portion of the First Information Report in Crime No. 3 of 2023 reads that, on 22.12.2022, the minor girl (daughter of 2nd petitioner and 2nd respondent) contacted the 2nd petitioner through cell phone bearing No. 7677888888 to the cell phone of the 2nd petitioner bearing No. 9944006611 and asked the 2nd petitioner to return her costly diamond jewels, watch, clothes and cosmetic items purchased by the 2nd respondent. It is alleged that, 2nd petitioner scolded the child in filthy language and threatened to beat her. She was joined by the 1st petitioner in abusing and scolding the child, 2nd respondent and 2nd respondent's mother in filthy language. After the incident the girl was weeping and severely stressed. Then the 2nd respondent sent a message to the 2nd petitioner to return the articles to the girl. 2nd petitioner sent a reply asking her daughter to come and collect the articles. On 23.12.2022, victim girl visited the house of the petitioners before going to school. She was badly abused by the 2nd petitioner. 1st petitioner had inappropriately touched her at wrong places and hit her on her cheek and told her that articles could not be returned and asked her to take her suitcase and leave the place. Later the girl informed this incident to the 2nd respondent and therefore, the complaint was given.
9. Subsequent to the registration of First Information Report, 164 Cr.P.C Statement was recorded from the victim girl. She had narrated the pending cases between her parents; the incident said to have been happened on 22.12.2022 and 23.12.2022 and also the alleged incident of sexual harassment committed by the 1st petitioner during September 2022.
10. For the purpose of better understanding, the relevant portion of the First Information Report and Section 164 Cr.P.C statement with regard to the sexual harassment are extracted herein under.
(i) First Information Report:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
(ii) Section 164 Cr.P.C Statement:
"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."
11. There is no doubt that, allegations made in the First Information Report make out a prima facie case for registration of First Information Report for the commission of sexual harassment as defined under POCSO Act and these allegations are supported by Section 164 Cr.P.C Statement. However, there is a genuine doubt arises in the mind of this Court, as to whether the sexual harassment incident as alleged in the First Information Report could have happened, after all the acrimonious fight in connection with child custody; unpleasant cell phone conversation on 22.12.2022 between the petitioners and victim girl and when there are multiple criminal proceedings pending between the 2nd petitioner and 2nd respondent.
12. This Court viewed the compact disk containing the video recording, allegedly, of the incident that said to have happened on 23.12.2022 at the residence of the petitioners, when the child came to collect the articles. The video recording shows that, the victim girl had visited the house of the petitioner with a safari clad man and collected the articles. Except some exchange of words between the 2nd petitioner and victim girl, no other incident was recorded, especially the alleged sexual harassment said to have been committed by the 1st petitioner against the victim girl.
13. The case is under investigation. When the petitioners are in possession of the video recording of incident that said to have happened at their residence on 23.12.2022, it is expected that the investigating officer should seize/receive the mobile phone or compact disk or pen-drive containing video recording with a certificate under Section 65B of Indian Evidence Act, for the purpose of investigation to find out the truth. The accused is entitled to produce the evidence to prove his/her innocence to the investigating officer during the course of investigation. This Court, at this stage, cannot go deep into the truth or falsity of the allegations made in the First Information Report.
14. As already indicated, First Information Report prima facie makes out a case for registration of First Information Report, for the alleged offence of sexual harassment. However, during the course of the investigation, 1st respondent should take into consideration of the evidences produced by the petitioners, especially the video recording of the incident dated 23.12.2023 to prove the petitioners innocence. After verifying the genuineness of the video recording and truth or falsity of the First Information Report allegations, Section 164 Cr.P.C statement of the victim girl, the investigating officer should file an appropriate final report before the concerned Court.
15. If the allegation that 1st petitioner had indulged in sexual harassment in September 2022 against the victim girl, then why it was not reported to the police is a question which requires to be answered by the 2nd respondent. If he failed to report the incident of sexual harassment, after coming to know of it, certainly he is liable for prosecution under Section 21 of POCSO Act.)
16. Therefore, this Court is of the view that, First Information Report allegations are required to be investigated by the 1st respondent police in a proper and fair manner along with the electronic evidence and other evidence produced by the petitioners and appropriate final report should be filed. Considering the fact that, criminal cases are filed against each other and there is an allegation that, 2nd respondent's mother was a high ranking former police officer and she is influencing the police, this Court directs that, the investigation in this case should be monitored by Deputy Commissioner of Police under whose jurisdiction AWPS, Vadapalani comes and the final report should be approved by him/her before filing in the Court.
17. With the above directions, this Criminal Original Petition is disposed of. Consequently, connected Miscellaneous Petitions are closed.
