Rev. Sister Flora vs S.
Babiolo Viancy on 6
December, 2017
Author: M.Dhandapani
Bench: M.Dhandapani
BEFORE THE MADURAI BENCH OF MADRAS
HIGH COURT
DATED: 06.12.2017
CORAM
THE HON’BLE MR.JUSTICE M.DHANDAPANI
Crl.O.P.(MD)No.14064 of 2011 and
Crl.M.P.(MD).No.1 of 2011
1.Rev. Sister FloraCorrespondent,
St.Teresa Primary School, West
Marianathapuram,
Dindigul.
2.Arockia Mary
… Petitioners/Accused
–
Vs-
S.Babiolo Viancy …
Respondent/Complainant
Prayer : Criminal Original Petition
filed under Section 482 of Cr.P.C, to call for the records in H.R.C.No.1
of 2010, dated 06.01.2009, on the
file ofthe learned Principal
Sessions Judge, Dindigul, and to
quash the same.
!For Petitioners : Mr.N.
Ananthapadmanaban^For Respondent :
Mr.V.Karuna
:ORDER
This Criminal Original Petition has been
filed to quash the case in H.R.C.No.1 of
2010, pending onthe file of the learned
Principal Sessions Judge, Dindigul.
2. The first petitioner is the
Correspondent of a Private School and
the second petitioner wasworking as
the helper maid in the said school. They
filed this petition under Section 482 of
Cr.P.C.,
Rev. Sister Flora vs S.Babiolo Viancy on 6 December,
2017
Indian Kanoon – http://indiankanoon.org/doc/71157433/1challenging the private complaint
lodged by a respondent/complainant, who is the parent of astudent of their
school. The complaint was filed under
Section 200 Cr.P.C. and section 30 of
theProtection of Human Rights Act, (Act
10 of 1994) alleging that the petitioners
ordered the son of therespondent, who is
studying in their school at fifth standard
to clean the toilet, which is the violation
under Section 12(C) and 12 (D) of the
Protection of Human Rights Act, 1993,
and threatened himnot to disclose the
said incident to anybody. Aggrieved by
the same, the respondent preferred a
complaint before the learned Judicial
Magistrate under Section 30 of the
Protection of HumanRights Act, (Act
10 of 1994) read with Section 200 Cr.P.
C., against which the Criminal Original
Petition has been filed.
3. Mr.N.Ananthapadmanaban, learned
counsel appearing for the petitioners
would submit that thecomplaint is not
maintainable since the complaint was filed under Section 30 of the Protection
ofHuman Rights Act, (Act 10 of 1994),
read with Section 200 Cr.P.C. and no
penal provision attractsin the said
complaint, and if there is any human
rights violation, as per the section
amounting theviolation can be lodged
before the Human Rights Commission
either by the victim or by any one on
behalf of the victim. Chapter-III of the
Protection of Human Rights Act, 1993,
deals with the powerof Human Rights
Commission and Chapter-IV deals with
the enquiry procedure of the State Human
Rights Commission. However, the
petitioner choose the wrong forum for
lodging the privatecomplaint before
the Judicial Magistrate under Section
200 Cr.P.C., for the offences punishable
under Section 12(C) and 12(D) of the
Protection of Human Rights Act, 1993,
and the same was takenon file as P.R.C.
No.14 of 2008 and after committal proceedings, the case was taken on file
inH.R.C.No.1 of 2010, on the file of
the learned Principal Sessions Judge,
Dindigul, instead ofreferring the case
before the Human Rights Commission.
Hence, the complaint itself is bad in law.
4. I have heard the learned counsel for
the petitioners and the learned counsel
appearing for therespondent and
perused the materials available on record.
5. On perusal of the entire complaint
filed by the respondent, it is clear that
the complaint did notcause any penal
offence implicating the petitioners in
the above said crime for the offences
punishable under Section 12(C) and 12
(D) of the Protection of Human Rights
Act. Hence, thecomplaint filed under
Section 200 Cr.P.C. read with Section 30
of the Protection of Human Rights
Protection Act, (Act 10 of 1994) before
the learned Judicial Magistrate is not
sustainable in law. Infact, Section 12(C) and 12(D) of the Protection of Human
Rights Act, 1993, is not penal provisions.
The above said Sections falls under
Chapter-III of the said Act, which
describes the Functions andPower of the
Commission and Sections 12(C) and 12(D)
of the said Act is a recommendatory
nature,if at all any human rights
violation that can be recommended for
the remedial measure for thepurpose of
adjudication.
6. However, the Hon’ble Division Bench
of Andhra Pradesh High Court in A.
Goverdhan Reddy v.Superintendent of
Police, Allahabad, reported in 1998 Crl.L.
J.561, decided the issue on the ground
that if any penal provision is attracted,
the complaint cannot be instituted
straight away before theSpecial Court,
but it has to be instituted only before the
Magistrate Court. Thereafter, after
followingthe committal procedure, the
Special Court shall try the case.
Rev. Sister Flora vs S.Babiolo Viancy on 6 December,
2017
Indian Kanoon – http://indiankanoon.org/doc/71157433/27. To support his contention the learned
counsel for the petitioner relied on a
decision of this Courtin Dr.S.
Sourubarani and another vs. C.Selvi,
reported in 2005 (1) LW 139, and the
relevantparagraphs are as follows:
?22-A. On this ground alone, quashing
the proceedings may not be possible and
if atall, a direction could be given to
the court concerned, to send the
complaint to theJudicial Magistrate
concerned, having jurisdiction, to commit
the case, if offences aremade out. But
considering the facts and
circumstances of the case and other
attending circumstances, in this case,
this proceedings need not be followed
and theproceedings could be quashed,
since there are other materials available,
for adoptingthe latter course.
- The offences reported in the
complaint are under Sections 166, 315,
325, 503 and509 IPC. Section 166
IPC contemplates punishment,
where a public servantdisobeyed the
law, with intent to cause injury to any
person, which is not available inthis
case, even prima facie, as per the
pleadings and therefore, taking
cognizance ofthis offence and compelling
the accused to face the trial is
unnecessary?. - From the above said judgment, if the
penal provisions attracted against the
petitioners, initially,the said complaint
can be entertained by the learned
Judicial Magistrate. Thereafter, the
learnedMagistrate, after following the
committal procedures, shall commit the
case to the Special Courtconstituted
under Section 30 of the Protection of
Human Rights Act, 1993. In the present
case, therespondent implicated the
petitioners only under Sections 12(C) and
12(D) of the said Act, which didnot
constitute any offence against the
petitioners, even as per the pleadings,
there is no prima faciecase attracted
against the petitioners. Therefore,
compelling the petitioners to face the
criminalprosecution is unnecessary.
9. The learned counsel for the respondent
fairly conceded that the complaint filed
by the respondentbefore the Judicial
Magistrate is unsustainable in law.
Accordingly, he seeks permission of this
Court to file a fresh compliant before the
appropriate forum.
10. In the present case, this Court found
no material was placed before this Court
to entertain thecomplaint before
theMagistrate. However, the petitioner
granted liberty to approach the Human
Rights Commission which was formed
under Section 21 of the Protection of
Human Rights Act,1993.
- In view of the above, I am inclined
to quash the complaint with liberty to
the respondent toapproach the
appropriate forum under the Protection
of Human Rights Act, 1993. Accordingly,
theprivate complaint in P.R.C.No.14
of 2008, on the file of the learned
Judicial Magistrate No.II,Dindigul,
which was taken in H.R.C.No.1 of 2010,
on the file of the learned Principal
Sessions Judge,Dindigul, is hereby
quashed and this Criminal Original
Petition is allowed. Consequently,
connectedmiscellaneous petition is
closed.
To
Rev. Sister Flora vs S.Babiolo Viancy on 6 December,
2017
Indian Kanoon – http://indiankanoon.org/doc/71157433/31.The Principal Sessions Judge, Dindigul.
2.The Judicial Magistrate No.II, Dindigul.
.
Rev. Sister Flora vs S.Babiolo Viancy on 6 December,
2017