Madras High Court
Rajesh vs The State Represented By on 29 April, 2021
Crl.O.P(MD)No.21847 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.04.2021
CORAM
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.O.P(MD)No.21847 of 2016
and
Crl.MP(MD)No.11254 of 2016
1.Rajesh
2.Andrus Mariya John
3.Amaladass
4.Anitha
5.Amutha
: Petitioners / Accused Nos.3 to 7
Vs.
1.The State represented by
the Inspector of Police,
All Women Police Station,
Colachel,
Kanyakumari District.
2.Sheeba Selin Mary
: Respondent / De facto
complainant
Prayer: Petition filed under Section 482 of the Criminal
Procedure Code, to call for the records pertaining to the
Charge Sheet in C.C.No.96 of 2016 pending before the
learned Judicial Magistrate, Eraniel Kanyakumari District,
and quash the same as illegal.
For Petitioners : Mr.M.Maran
For Respondent : Mr.R.Anandharaj,
No.1 Additional Public Prosecutor
For Respondent : Mr.G.Aravinthan
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Crl.O.P(MD)No.21847 of 2016
ORDER
This petition is filed by the petitioner seeking to
quash the proceedings in C.C.No.96 of 2016 pending on the
file of the learned Judicial Magistrate, Eraniel
Kanyakumari District,
2.The petitioners are accused Nos.3 to 7 in C.C.No.
96 of 2016 pending on the file of the learned Judicial
Magistrate, Eraniel. This calender case is arising out of a
complaint lodged by the second respondent as against her
husband and other in laws that their marriage with the
first accused Christopher was solemnised on 10.07.2013.
At that time of marriage, her parents gave 45 sovereigns of
gold ornaments and household articles worth Rs.1,50,000/-.
After the marriage the second respondent/ defacto
complainant was living with the first accused Christopher
and her mother in-law Rose Mary at Pattukottai in the
matrimonial house.
3.The learned Counsel further submits that it is
alleged that these accused and other in-laws have also
demanded a sum of Rupees forty lakh and therefore she
lodged a complaint as against all the accused before the
first respondent Police on 06.11.2015 and the same was
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Crl.O.P(MD)No.21847 of 2016
registered in Crime No.39 of 2015 as against these
petitioners and two others for the offence punishable under
Sections 498(A), 406 and 506(i) IPC and Sections 4 the
Tamil Nadu Prohibition of Harassment of Woman Act.
In conclusion of the investigation, the respondent Police
filed a final report under Sections 498(A), 406 and 506(i)
IPC and Sections 4 and 6 of the Dowry Prohibition Act as
against accused Nos.1 and 2, under Sections 498(A) and
506(i) IPC and under Section 4 of the Dowry Prohibition
Act, as against accused Nos.3 and 4 and under Sections
498(A) and 506(i) IPC as against accused No.5, and under
Section 498(A) IPC as against accused Nos.6 to 9, before
learned Judicial Magistrate, Eraniel and the same was taken
on file in C.C.No.96 of 2016.
4.Aggrieved over the final report, accused Nos.3 to
7 have filed the present petition to quash the proceedings
pending against them in C.C.No.96 of 2016. The first
petitioner is the sister of accused No.1, Christopher and
second petitioner is her husband, third petitioner is
paternal uncle of the first accused and fourth and fifth
petitioners are their daughter - in-law and daughter
respectively.
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Crl.O.P(MD)No.21847 of 2016
5.Mr.M.Maran, learned Counsel appearing for the
petitioners submitted that there is no specific averment as
against these petitioners except certain vague allegations
and this false complaint has been lodged only in order to
harass the petitioners / in laws of the defacto
complainant. Even in the 161(3) CrPC statement, the defacto
complainant has made certain allegations as against the
second petitioner that he has compelled her to wash his
inner garments and the petitioners 2 and 3 have beaten her
with stick. However, no specific date is mentioned as to
when such occurrence has taken place. Similarly as against
petitioners 3 to 5, allegations have been made as if,
accused No.5 has objected the defacto complainant, when she
went to the land of her husband, abused her and criminally
intimidated her. For this alleged incident also there is no
specific date given as to when the incident had occurred.
6.The learned Counsel would further submit that
there is no material placed on record that her husband
Christopher was having any land. Based on these bald
allegations, the respondent Police also registered the
complainant and filed a final report as against these
petitioners. Therefore, the learned Counsel for the
petitioners submitted that the allegations are bald without
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Crl.O.P(MD)No.21847 of 2016
specific date, time and place and therefore, the final
report filed based on these vague allegations is liable to
be dismissed.
7.The learned Counsel for the petitioner has also
relied upon the following orders of the Hon'ble Supreme
Court.
1.Preeti Gupta and another Vs State of Jharkhand and
another, reported in (2010) 7 SCC 667.
2.Sushil Kumar Sharma Vs Union of India and Others,
reported in (2005) 6 SCC 281
8.Mr.R.Anandharaj, learned Additional Public
Prosecutor, appearing for the State submits that based on
the complaint of the second respondent, the first
respondent Police conducted investigation and with the
available materials, they have filed the final report as
against accused Nos.1 and 2 under Sections 498(A), 406,
506(i) IPC and Sections 4 and 6 of the Dowry Prohibition
Act, as against accused Nos.3 and 4 under Sections 498(A)
and 506(i) IPC and under Section 4 of the Dowry Prohibition
Act, as against accused No.5, under Section 498(A) and
506(i) IPC and as against accused Nos.6 to 9 under Section
498(A) IPC before learned Judicial Magistrate, Eraniel in
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Crl.O.P(MD)No.21847 of 2016
C.C.No.96 of 2016 and the veracity of the evidences can
only be tested during the trial and therefore, prayed for
dismissal of the criminal original petition.
9.Mr.G.Aravidhan, learned Counsel for the second
respondent defacto complainant has also relied on the
161(3) statement of the defacto complainant and would
submit there are specific averments as against the
petitioners that they have harassed the second respondent/
defacto complainant and also harassed by demanding dowry
and therefore, the same can be tested only during the
trial.
10.This Court paid its anxious consideration to the
rival submissions and perused the materials placed on
record.
11.A perusal of the records would show that the
petitioners are in laws of the second respondent / defacto
complainant. The marriage between the second respondent and
the first accused Christopher was solemnised on 25.07.2013.
Admittedly, the first accused was having business
establishment at Pattukottai in Thanjavur District and he
was having ready made shop even before the marriage.
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Admittedly after the marriage the second respondent was
living with her husband and mother-in-law at Pattukottai.
The first petitioner is the sister of Christopher and she
is the wife of the second petitioner and they were living
at Coimbatore. The third petitioner is the paternal uncle
of the first accused and fourth and fifth petitioners are
daughter and daughter in-laws of the third petitioner and
they were residing at Kanyakumari District.
12.In this case, on 26.11.2020 a representation was
made by the learned Counsel for the petitioners that the
first accused and the second respondent defacto complainant
got reunited, they also gave birth to another child and
they are living at Pattukottai. Therefore, prayed that
recording the same, the case may be closed. Based on the
said submissions of the learned Counsel for the
petitioners, this Court by earlier order dated 26.04.2020,
directed the Registry to issue notice to the first accused
and the second respondent by directing them to appear on
22.03.2021 before this Court and it was not taken for
hearing on that day and therefore, by order dated
17.04.2021, this Court directed the parties to appear to
before this Court video conferencing. Accordingly, the
first accused Christopher and the second respondent
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Crl.O.P(MD)No.21847 of 2016
appeared through the video conferencing. The first accused
Christopher submitted that he has reunited with the second
respondent defacto complainant and is living together with
her. However, the second respondent is having certain
difference as against these petitioners and in laws that
she had some problems with her husband at the instigation
of the petitioners. She also reiterated that the second
petitioner insisted her to wash his inner garments. Further
the third petitioner has objected to her entry into her
husband's land at Kanyakumari District. She had expressed
that she is not inclined to settle the disputes with the
petitioners/ in-laws. Further she admitted the fact that
she is living with her husband.
13.This Court has perused the complaint, 161(3) CrPC
statement of the second respondent defacto complainant.
The second respondent / defacto complainant has stated that
the second petitioner has insisted her to wash his inner
garments and the first petitioner is said to have assaulted
her with broom stick. Neither in the complaint nor in the
161(3) CrPC statement, there is reference as to when and
where this occurrence has taken place. Similarly, the
allegations are made against the third petitioner/ paternal
uncle of the first accused that he objected to her entry
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Crl.O.P(MD)No.21847 of 2016
into the land of her husband, abused and criminally
intimidated her. Even for these incidents also there is no
specific date and place and the time have been mentioned.
The prosecution was launched as against these petitioners
on these vague allegations that these petitioners have also
committed cruelty as against these second respondent
defacto complainant.
14.The Hon'ble Supreme Court in State of Haryana and
Others Vs Bhajan Lal and Others, reported in 1992 (1) SCC
335, has held as follows:
“In the backdrop of interpretation of
various relevant provisions of the Code of
Criminal Procedure (for short, Cr.P.C.) under
Chapter XIV and of the principles of law
enunciated by this court in a series of decisions
relating to the exercise of the extraordinary
power under Article 226 of the Constitution of
India or the inherent powers under section 482
Cr.P.C. gave the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process
of the court or otherwise to secure the ends of
justice. Thus, this court made it clear that it
may not be possible to lay down any precise,
clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list to myriad kinds of cases
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Crl.O.P(MD)No.21847 of 2016
wherein such power should be exercised:
"(1) Where the allegations made in the
first information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do
not constitute a cognizable offence but
constitute only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR
or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
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Crl.O.P(MD)No.21847 of 2016
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where there
is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
15.In Preeti Gupta and another Vs State of Jharkhand
and another, reported in (2010) 7 SCC 667, the Hon'ble Apex
Court has held as follows:
“32. Unfortunately, at the time of filing
of the complaint the implications and
consequences are not properly visualized by the
complainant that such complaint can lead to
insurmountable harassment, agony and pain to the
complainant, accused and his close relations.
33. The ultimate object of justice is to
find out the truth and punish the guilty and
protect the innocent. To find out the truth is a
herculean task in majority of these complaints.
The tendency of implicating husband and all his
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Crl.O.P(MD)No.21847 of 2016
immediate relations is also not uncommon. At
times, even after the conclusion of criminal
trial, it is difficult to ascertain the real
truth. The courts have to be extremely careful
and cautious in dealing with these complaints
and must take pragmatic realities into
consideration while dealing with matrimonial
cases. The allegations of harassment of
husband's close relations who had been living in
different cities and never visited or rarely
visited the place where the complainant resided
would have an entirely different complexion. The
allegations of the complaint are required to be
scrutinized with great care and circumspection.
Experience reveals that long and protracted
criminal trials lead to rancour, acrimony and
bitterness in the relationship amongst the
parties. It is also a matter of common knowledge
that in cases filed by the complainant if the
husband or the husband's relations had to remain
in jail even for a few days, it would ruin the
chances of amicable settlement altogether. The
process of suffering is extremely long and
painful.
34. Before parting with this case, we
would like to observe that a serious relook of
the entire provision is warranted by the
legislation. It is also a matter of common
knowledge that exaggerated versions of the
incident are reflected in a large number of
complaints. The tendency of over implication is
also reflected in a very large number of cases.
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Crl.O.P(MD)No.21847 of 2016
35. The criminal trials lead to immense
sufferings for all concerned. Even ultimate
acquittal in the trial may also not be able to
wipe out the deep scars of suffering of
ignominy. Unfortunately a large number of these
complaints have not only flooded the courts but
also have led to enormous social unrest
affecting peace, harmony and happiness of the
society. It is high time that the legislature
must take into consideration the pragmatic
realities and make suitable changes in the
existing law. It is imperative for the
legislature to take into consideration the
informed public opinion and the pragmatic
realities in consideration and make necessary
changes in the relevant provisions of law. We
direct the Registry to send a copy of this
judgment to the Law Commission and to the Union
Law Secretary, Government of India who may place
it before the Hon'ble Minister for Law & Justice
to take appropriate steps in the larger interest
of the society.”
16.In case Nagawwa Vs Veeranna Shivalingappa Konjalgi,
reported in 1976 AIR 1947, the Hon'ble Apex Court has observed that it
may be safely held that in the following cases an order of the
Magistrate issuing process against the accused can be
quashed or set aside:
(1) Where the allegations made in
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Crl.O.P(MD)No.21847 of 2016
the complaint or the statements of the
witnesses recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complaint does net disclose the
essential ingredients of an offence which
is alleged against the accused;
(2) where the allegations made in
the complaint are patently absurd and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the accused;
(3) where the discretion exercised
by the Magistrate in issuing process is
capricious and arbitrary having been based
either on no evidence or on materials which
are wholly irrelevant or inadmissible;
and .
(4) where the complaint suffers from
fundamental legal defects, such as, want of
sanction, or absence of a complaint by
legally competent authority and the like.”
17.In the case on hand, the complaint is lodged
without even minimum required details, such as date, time
and place of the offence. Therefore, applying the ratio
laid down by the Hon'ble Apex Court, the petitioners cannot
be prosecuted merely on the vague allegations.
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Crl.O.P(MD)No.21847 of 2016
18.In view of the above discussion, this petition is
allowed. The proceedings in C.C.No.96 of 2016 on the file
of the learned learned Judicial Magistrate, Eraniel
Kanyakumari District as against these petitioners is hereby
quashed. Consequently, connected miscellaneous petition is
closed.
29.04.2021
dsk
NOTE: In view of the present
lock down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is
the correct copy, shall be
the responsibility of the
advocate/litigant concerned.
To
1.The Judicial Magistrate,
Eraniel,
Kanyakumari District,
2.The Inspector of Police,
All Women Police Station,
Colachel,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD)No.21847 of 2016
B.PUGALENDHI,J.,
dsk
Crl.O.P(MD)No.21847 of 2016
29.04.2021
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