Mohamed Kayasudheen vs State
2021 Latest Caselaw 9468 Mad

                                                                          Crl.O.P No.6369 of 2016

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED: 15.04.2021

                                                    CORAM

                          THE HON'BLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                            Crl.O.P.No.6369 of 2016
                                                     and
                                         Crl.M.P No.3293, 3294 of 2016


                     1.Mohamed Kayasudheen
                     2.Abdul Munaff
                     3.Mumtaj Begam
                     4.Tajmal Hussain
                     5.Khadar Hussain
                     6.Irfana Begam
                     7.Shehanaz Begum                                    ...Petitioners

                                                       Vs.

                     1. State, Rep. By
                        The Inspector of Police,
                        Guduvancheri Police Station,
                        Kanchipuram District
                        Crime No.871 of 2014
                     2. B.Abdul Seriff
                       (2nd respondent was impleaded
                       as per the order of this Court dated
                       13.04.2016 in Crl.M.P No.4290 of 2016
                       in Crl.O.P No.6369 of 2016)                     .. Respondents

                     Prayer: Criminal Original petition filed under Section 482 of Code of
                     Criminal Procedure, praying to call for the records pertaining to the
                     proceedings in P.R.C No.10 of 2015 on the file of the Judicial Magistrate
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                     1/15
                                                                            Crl.O.P No.6369 of 2016

                     No.II, (Addl. Mahila Court), Chengalpet and quash the same.



                                   For Petitioners            : Mr.A.Palaniappan

                                   For Respondents            : Mr.S.Karthikeyan -R1
                                                               Additional Public Prosecutor



                                                      ORDER

This Criminal Original Petition has been filed seeking to

quash proceedings in P.R.C No.10 of 2015 on the file of the Judicial

Magistrate No.II, (Addl. Mahila Court), Chengalpet.

2. According to the petitioners, the de-facto complainant

being the wife of the first petitioner got married to him on 27.05.2015 as

per the Islamic rites and customs. The second petitioner is father-in-law

and third petitioner is mother-in-law of the de-facto complainant. The

fourth and fifth petitioners are brothers of the first petitioner. The sixth

and seventh petitioners are wife of fourth and fifth petitioners. The

petitioners have been charged for the offences under Sections 147, 148,

149, 498(A), 307, 506(ii) of IPC and the same is pending in P.R.C No.10

of 2015 on the file of the Judicial Magistrate No.II (Addl. Mahila Court), https://www.mhc.tn.gov.in/judis/

Crl.O.P No.6369 of 2016

Chengalpet.

3. The allegation against the petitioners is that on

10.09.2014, as per the instruction of A1, about 10.00 p.m, the de-facto

complainant came to the petitioner's house and A1 demanded Rs.24

lakhs and radiated her and her parents. Her parents went away. A1 told

her to die and went away. On 11.09.2014, at about 6.30 a.m, A2 and A3

attacked with deadly weapon by cutting her neck and back, A4 and A5

kicked her on her abdomen, A7 slapped her, A6 hit her head on the wall

and also A2 to A4 threatened her, A2 and A3 poured kerosene on her.

The entire allegation against the petitioners are false and baseless. The

de-facto complainant left the matrimonial home within a month from the

date of marriage and now, she is residing with her parents. There is no

chance of reunion and eventhough panchayat has been held between the

first petitioner and the de-facto complainant, she did not come to the

petitioners' house stating that she needs some time at lease six months for

coming back to the matrimonial home. That being the case, on

10.09.2014, the de-facto complainant along with her family members

entered into the house of the petitioners and attacked them and some

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Crl.O.P No.6369 of 2016

were injured and taken to the hospital and also gave a complaint on

11.09.2014 to the respondent police along with medical certificate, but

the respondent police failed to register a case against the de-facto

complainant. In the complaint, it has been stated that A2 and A3

attacked the de-facto complainant with sharp edged weapon, others

kicked on her and slashed her, but as per the statement of the doctor, no

cut injuries found on the de-facto complainant. Further, it is stated that

the de-facto complainant was attacked by four persons, but in the FIR she

has implicated 7 persons in which A1 was not at all present in the scene

of occurrence. The entire allegations are false and only in order to harass

the petitioner, a false case has been foisted against the petitioners. Unless

the charge sheet is quashed, the petitioners will be put to great loss and

hardship. Hence the present petition has been filed.

4. Heard the learned counsel appearing for the petitioners

and the learned Additional Public Prosecutor appearing for the first

respondent.

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Crl.O.P No.6369 of 2016

5. On a perusal of the records, 15 witnesses have been cited

on the side of the prosecution. As per the charges sheet, there are totally

seven accused and all are residing in the same address. The petitioners

have been implicated for the offences under Sections 147, 148, 149,

498(A), 307, 506(ii) of IPC. According to the petitioners, no such

incident was occurred. In the charge sheet, it has been stated as follows:

The marriage between Heera and A1 was solemnized

on 27.05.2012 as per Islamic rites and customs. During the

time of marriage the complainant gifted his daughter Heera

with 50 sovereigns of gold jewels Rs.50,000/- worth of

silver articles and utensils. The couple lived at 25,

Godhavary Nagar, Urapakkam. The said A1 used to visit

Bangalore to do work. The said A1 used to visit the

matrimonial home once in a month alone. After ten days of

marriage, A1 harassed her and subjected her to cruelty to

get 30 lakhs from her father for purchasing house. A2 and

A3 insisted her to give her gold ornaments to do business

and Heera refused to abide by their demand A1 sold the ten

sovereigns of gold from the gold given to him by the parents

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Crl.O.P No.6369 of 2016

of Heera. The said A1 allegedly had illicit sexual

relationship with other women. The jamath of Pattabiram

settled the matter and Urapakkam. Jamath assured change

on the part of A1, A1 never changed and took her from

parent house or lived separately with her and child in

Chennai.

In the course of the same transaction on 10.09.2014,

as per the instruction of A1 at about 10.00 hours, the said

Heera came to Urapakkam along with her parent and her

mother's elder sister. A1 demanded 24 lakhs and ridiculed

her and her parent. Her parent left. A1 told her to die and

went away.

In the course of the same transaction on 11.09.2014

at about 06.30 hours at her matrimonial house in

Godhavary Nagar, Urapakkam, A2 and A3 attempted the

life by means of a sharp edged weapon by cutting her on

her hands neck and back. A4 and A5 kicked her on her

abdomen. A7 slapped her. A6 hit her head on the wall. A2

to A7 exhorted "if you are left alone there is possibility of

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Crl.O.P No.6369 of 2016

escaping" and their assembly became unlawful assembly.

A2 to A7 appears to have committed offence punishable

under Sections 147. A2, A3 poured kerosene on her to kill

and A5 to A7 acted in prosecution of the common object.

Hence, A1 to A7 appears to have committed offence

punishable under Section 498-A IPC. A2 and A3 appears

to have committed offence punishable u/s.148, 307 IPC. A4

to A7 appears to have committed offence punishable

u/s.307 r/w 149 IPC. A1 to A7 criminally intimidated her

and hence, they appear to have committed offence

punishable u/s.506(ii) IPC.

6. According to the complaint, it is seen that there was

sexual harassment made by the first petitioner herein and he had illicit

relationship with another woman. It is also stated that A2 and A3

attempted the life by means of a sharp edged weapon by cutting her

hands, neck and back. All the grounds cannot be raised in this quash

petition. All the matters are factual in nature and evidence have to be let

in by both the parties concerned and this court cannot go into the details

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Crl.O.P No.6369 of 2016

of the same and pass an order by quashing the said petition.

7. The learned counsel for the petitioner would submit that

now the case is pending for committal in P.R.C No.10 of 2015 on the file

of the Judicial Magistrate No.II, Additional Mahila Court, Chengalpet

and it has not been committed to the Sessions Court and the same is

pending from 2016 onwards. Hence, this Court may direct the trial Court

to expedite the trial.

8. To bring a case under Section 482 of Cr.P.C, the

guidelines have been issued by the Apex Court in the case of

Parbatbhai Aahir Alias Parbathbhai Bhimsinhbhai v. State of

Gujarat and another reported in (2017) 9 Supreme Court Cases 641

following the Bajanlal case and it has been held as follows:

11. Section 482 is prefaced with an overriding

provision. The statute saves the inherent power of the

High Court, as a superior court, to make such order

as are necessary (i) to prevent an abuse of the process

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Crl.O.P No.6369 of 2016

of any court; or (ii) otherwise to secure the ends of

justice. In Gian Singh a Bench of three learned

Judges of this Court adverted to the body of precedent

on the subject and laid down guiding principles which

the High Court should consider in determining as to

whether to quash an FIR or complaint in the exercise

of the inherent jurisdiction. The considerations which

must weigh with the High Court are: (SCC pp.342-

43, para 61)

"61... the power of the High Court in quashing

a criminal proceeding or FIR or complaint in exercise

of its inherent jurisdiction is distinct and different

from the power given to a criminal court for

compounding the offences under Section 320 of the

Code. Inherent power is of wide plenitude with no

statutory limitation but it has to be exercised in

accordance with the guideline engrafted in such

power viz., (i) to secure the ends of justice, or (ii) to

prevent abuse of the process of any court. In what

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Crl.O.P No.6369 of 2016

cases power to quash the criminal proceeding or

complaint or FIR may be exercised where the offender

and the victim have settled their dispute would depend

on the facts and circumstances of each case and no

category can be prescribed. However, before

exercise of such power, the High Court must have due

regard to the nature and gravity of the crime.

Heinous and serious offences of mental depravity or

offences like murder, rape, dacoity, etc., cannot be

fittingly quashed even though the victim or victim's

family and the offender have settled the dispute. Such

offences are not private in nature and have a serious

impact on society. Similarly, any compromise between

the victim and the offender in relation to the offences

under special statutes like the Prevention of

Corruption Act or the offences committed by public

servants while working in that capacity, etc.; cannot

provide for any basis for quashing criminal

proceedings involving such offences. But the criminal

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Crl.O.P No.6369 of 2016

cases having overwhelmingly and predominatingly

civil flavour stand on a different footing for the

purposes of quashing, particularly the offences

arising from commercial, financial, mercantile, civil,

partnership or such like transactions or the offences

arising out of matrimony relating to dowry etc., or the

family disputes where the wrong is basically private

or personal in nature and the parties have resolved

their entire dispute. In this category of cases, the

High Court may quash the criminal proceedings if in

its view, because of the compromise between the

offender and the victim, the possibility of conviction is

remote and bleak and continuation of the criminal

case would put the accused to great oppression and

prejudice and extreme injustice would be caused to

him by not quashing the criminal case despite full and

complete settlement and compromise with the victim.

In other words, the High Court must consider whether

it would be unfair or contrary to the interest of justice

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Crl.O.P No.6369 of 2016

to continue with the criminal proceeding or

continuation of the criminal proceeding would

tantamount to abuse of the wrongdoer and whether to

secure the ends of justice, it is appropriate that the

criminal case is put to an end and if the answer to the

above question(s) is in the affirmative, the High Court

shall be well within is jurisdiction to quash the

criminal proceedings".

Accordingly, the High Court must consider whether it would be unfair

or contrary to the interest of justice to continue with the criminal

proceeding or continuation of the criminal proceeding would tantamount

to abuse of the wrongdoer and whether to secure the ends of justice, it is

appropriate that the criminal case is put to an end and if the answer to the

above question(s) is in the affirmative, the High Court shall be well

within is jurisdiction to quash the criminal proceedings.

9. The grounds raised by the counsel for the petitioners are

all factual in nature and it requires appreciation of evidence and this

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Crl.O.P No.6369 of 2016

Court cannot decide the same in exercise of its jurisdiction under Section

482 of Criminal Procedure Code. It is left open to the petitioners to raise

all the grounds before the Court below and the same shall be considered

on its own merits and in accordance with law. This Court is not inclined

to interfere with the proceedings pending before the Court below.

10. The learned counsel for the petitioners requested this Court to

dispense with the presence of the petitioners 2 and 3. Taking into

consideration, the facts and circumstances of the case, the presence of the

petitioners 2 and 3 is dispensed with and they shall be represented by a

counsel, who shall cross examine the witnesses on the same day, they

are examined in Chief. The petitioners 2 & 3 shall be present before the

Court below at the time of questioning under Section 313 Cr.P.C and at

the time of passing of the final judgment.

11. In the result, this Criminal Original Petition stands disposed of.

However, the Court below is directed to complete the proceedings within

a period of four weeks from the date of receipt of a copy of this order.

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Crl.O.P No.6369 of 2016

Thereafter, the learned Sessions Judge shall complete the trial within a

period of eight months. Consequently, connected Miscellaneous

Petitions are closed.

15.04.2021

Index : Yes/No Internet : Yes/No uma

To

1. The Judicial Magistrate No.II, (Addl. Mahila Court), Chengalpet

2. The Inspector of Police, Guduvancheri Police Station, Kanchipuram District

3. The Public Prosecutor, High Court of Madras.

https://www.mhc.tn.gov.in/judis/

Crl.O.P No.6369 of 2016

V.BHAVANI SUBBAROYAN, J uma

Crl.O.P.No.6369 of 2016 and Crl.M.P No.3293, 3294 of 2016

15.04.2021

https://www.mhc.tn.gov.in/judis/