2011 (5) TMI 1094 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the opening of windows and a ventilator by the respondents constitutes an offence u/s 509 IPC.
2. Whether the Magistrate had the power to discharge the respondents at the stage of serving notice u/s 251 CrPC.
3. Whether the order of the Magistrate discharging the respondents was violative of Section 258 CrPC.

Issue-wise Summary:

1. Offence u/s 509 IPC:
The petitioner contended that the opening of windows and a ventilator by the respondents overlooking the courtyard of his house impinged upon the privacy and modesty of the female members of his family, constituting an offence u/s 509 IPC. The court noted that intention to insult the modesty of a woman is a basic ingredient of the offence u/s 509 IPC. The complaint and charge sheet lacked any allegation that the windows and ventilator were opened with such intention. The court concluded that the act of opening windows for light and ventilation does not inherently intend to violate privacy or insult modesty, and thus, the essential ingredient of intention was missing.

2. Discharge at the Stage of Notice u/s 251 CrPC:
The petitioner argued that the Magistrate, after taking cognizance and issuing processes, had no power to discharge the respondents at the stage of notice u/s 251 CrPC, citing the Supreme Court judgment in Adalat Prasad Vs. Rooplal Jindal & Ors. The court clarified that the facts of the present case were distinct from Adalat Prasad. In this case, the discharge occurred at the stage of serving notice u/s 251 CrPC, where the Magistrate found that the charge sheet/complaint did not disclose the necessary ingredients of the offence u/s 509 IPC. The court held that it is inherent in Section 251 CrPC that the Magistrate must ensure the charge sheet/complaint discloses a triable offence before stating the particulars to the accused.

3. Violation of Section 258 CrPC:
The petitioner submitted that the discharge order was violative of Section 258 CrPC. The court found this argument misconceived, noting that the discharge was based on the charge sheet/complaint not disclosing the commission of an offence u/s 509 IPC, and the Magistrate did not resort to Section 258 CrPC. The court emphasized that the discharge was appropriate given the lack of essential ingredients for the offence.

Additional Observations:
The court observed that the petitioner had also filed a civil suit for mandatory injunction regarding the windows and ventilator, suggesting that the criminal complaint was filed with mala fide intentions to pressurize the respondents to settle the civil dispute. This conduct was deemed a gross abuse of the process of law.

Conclusion:
The court found no infirmity or illegality in the order of the learned Additional Sessions Judge and dismissed the petition.