P.Nethaji Vs The Inspector of Police

PRAYER :- Criminal Revision Petition is filed under Sections 438 and 442 of BNSS, 2023, to call for the records relating to the order dated 07.05.2024 made in Crl.M.P.No.2732 of 2024 on the file of the Learned Judicial Magistrate Uthamapalayam and set aside the same and consequently by directing the 1^st Respondent to register the FIR.

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For Petitioner : Mr.V.Kishore Kumar

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For Respondents : Mr.A.Thiruvadi Kumar,

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Additional Public Prosecutor for R1

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: Mr.V.Thirupathi for R2 & R3 : Mr.M.Suresh for R4

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O R D E R

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Heard Mr.V.Kishore Kumar, learned Counsel for petitioner, Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor, for first Respondent, Mr.V.Thirupathi, learned counsel for respondents 2 and 3 and Mr.M.Suresh, learned counsel for fifth respondent.

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The present Criminal Revision Petition is filed challenging the

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order dated 07.05.2024 made in Crl.M.P.No.2732 of 2024, whereby, the Judicial Magistrate, Uthamapalayam has dismissed the complaint filed by the petitioner under Section 156 (3) of Cr.P.C.

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The challenge is primarily on the premise that the Court below failed to take into account the relevance of Maintenance and Welfare of Parents and Senior Citizens Act, 2007 in relation to the petition filed under Section 156 (3) of Cr.P.C. Before proceeding further, it may be relevant to set out very briefly the facts:

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The petitioner is presently about 68 years (senior citizen). In the year 1976, petitioner was married to one Karuppayee and out of the wedlock, they had two female children, namely, Murugeshwari and

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Saritha, who are the second and fourth respondent herein. The second respondent was married to the third respondent, who is the Inspector of Police, Devala Police station, Nilgiris District. The fourth respondent is married to Ganesh Kumar and living with her husband in her matrimonial home. Petitioner's wife expired on 20.03.2022. Petitioner was living by himself in his house at Kamayagoundanpatti, Theni District. Petitioner would submit that during July 2023, respondents 2 and 3 requested petitioner to live with them and assured the petitioner to provide food and shelter. Pursuant to the above request, petitioner moved with respondents 2 and 3 and started living with them. Petitioner would submit that he was compelled / insisted, by respondents 2 and 3 to execute settlement deeds, in respect of properties comprised in old Natham survey No.724/ 1GA2 and new survey No.2590/4 measuring an extent of 4706 Sq. Ft in Door Nos. 28A, 28B, situated at Panjamar street, Vedha Kovil Street, Kamyagoundan path village, Theni District and in old Natham in survey No.724/ 10A2 in Re-survey No.2590/4 Pt and new survey No.2590/4B measuring an extent of 3097 Sq. Fts in Door Nos. 28A, 28B, situated at Panjamar street, Vedhakovil street, Kamyagoundanpatti Village, Theni District, in their favour.

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Petitioner, while moving to his daughter's home, had a deposit

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of about Rs.50,80,000/- and also owned and in possession of 21 sovereign of gold jewels which was stated to have been kept in the bank locker of Bank of Baroda, K.K. Branch. Petitioner would state that on 09.07.2023, respondents 2 and 3 compelled petitioner to transfer the said sum of Rs.50,80,000/- and also part with 21 sovereigns of gold jewels. It was stated that the petitioner was threatened, which compelled him to part with the money, i.e., his savings and also gold jewellery. After having the settlement deed executed on 18.07.2023, and after obtaining the savings of the petitioner transferred and compelling to part with the gold jewels, petitioner was sent out by respondents 2 and 3. Petitioner then went to second daughter's house wherein he was taking treatment. In the meanwhile, second respondent hurriedly executed sale deeds to Theivendran, who is the nephew of the third respondent, vide Document No.6321/2023, on the file of Sub-Registrar, Cumbam, dated 14.11.2023 of all three properties, settled by the petitioner in favour of the respondents 2 and 3. Petitioner filed an application under Section 156(3) Cr.P.C. The same came to be rejected primarily on the premise that there is a delay of about 5 months from the date of occurrence and secondly,

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the petitioner has a remedy under section 23 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (herein after referred to as “Senior Citizens Act”), to seek a declaration of the transfer /settlement deed in the present case of being void.

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This Court finds that the impugned order cannot be sustained for the following reasons:-

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(a) Delay in filing a petition under Section 156(3) of Cr.P.C by

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itself may not prove fatal.

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(b) A duty is cast on the Magistrate before whom the petition is filed to enquire into the circumstances for the delay.

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(c) The lower court ought to have seen that parents are generally reluctant to come forward in filing complaints against their children that could be a possible explanation for the delayed filing of the petition under 156 (3) of Cr.P.C.

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(d) Importantly, it appears to mean that there is gross non application of mind, to the significance of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to the facts of the case. For the purpose of appreciating the relevance of the said enactment, it may be

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relevant, rather necessary, to extract Sections 4, 24 and 25 of the Act,

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which reads as under:

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“4. Maintenance of parents and senior citizens.—(1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of—

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(i) parent or grand-parent, against one or more of his children not being a minor;

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(ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2.

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(2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life.

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(3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life.

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(4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would inherit the property of such senior citizen:

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Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.

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24. Exposure and abandonment of senior citizen.— Whoever, having the care or protection of senior citizen leaves, such senior citizen in any place with the intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousands rupees or with both.

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25. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under this Act shall be cognizable and bailable.

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(2) An offence under this Act shall be tried summarily by a Magistrate.”

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A cumulative reading of the above provisions, would suggest

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that any person being a relative of the senior citizen and having sufficient means, ought to maintain the senior citizen, provided, he is in possession of the property of the senior citizen or would inherit the property of such

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senior citizen. In the present case, petitioner being the Senior Citizen and respondents 2 and 3 being the relatives are cast with the obligation to maintain Senior Citizen i.e., petitioner herein.

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It turns out that petitioner was compelled to part with his savings of Rs.50,80,000/- and 21 sovereigns of gold and also settle three properties in favour of respondents 2 and 3. Respondents 2 and 3, having obtained the above from the petitioner/senior citizen has abandoned him. This conduct/act would in my view require examination of applicability of Sections 4, 24 and 25 of “Senior Citizens Act”. However, there is no discussion, whatsoever about the applicability of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007.

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It is relevant to point out that the very object of the above Act was to cast an obligation on the person, who inherited (or) would inherit the property of their aged relatives to maintain such age relatives. The Act itself was introduced in view of the fact that traditional norms and values of Indian society which laid stress on providing care for the elderly was found to be withering and the number of old age homes was

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found multiplying, with the growth of these homes being exponential in

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the last few decades. It is with a view to eradicate this social evil that the Statute was enacted. This being a beneficial legislation, it appears to me that the Magistrate erred in dismissing the petition under 156(3) of Cr.P.C, without even examining the above provisions and has discharged his function in a perfunctory manner.

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This Court has also made it clear that offence under Section 24 of Senior Citizens Act is in addition and not to be understood as being in derogation of offences under any other enactment including IPC. In the circumstances, this Court is inclined to remand the matter back to the Magistrate for reconsidering the petition afresh keeping in view the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. It is open to the petitioner to putforth their case relying on / with the petition by making specific reference to the provisions of the Maintenance of the Act and its applicability to the facts.

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