Madras High Court

K.R. Murugan vs M.Jayanthimala on 10 August, 2021

                                                                               Crl.O.P.No. 2847 of 2017


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 10.08.2021

                                                        CORAM

                       THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN

                                               Crl.O.P.No. 2847 of 2017
                                         and Crl.M.P.Nos.2018 & 2019 of 2017


                    K.R. Murugan                                                      ... Petitioner
                                                               Vs
                    M.Jayanthimala                                                  ... Respondent

                              Criminal Original Petition filed under Section 482 of CrPC., to call
                    for the records relating to the case in M.C.No. 21 of 2016 pending on the
                    file of the Chief Judicial Magistrate Court, Krishnagiri and quash the
                    same.

                                          For Petitioner       : Mr.K.G.Senthil Kumar

                                          For Respondent       : Mr.K.Thiruvengadam
                                                            ----
                                                           ORDER

This petition has been filed to quash the proceedings M.C.No.21 of

2016 pending on the file of the Chief Judicial Magistrate Court,

Krishnagiri, thereby taken cognizance for the offences under Sections

13(1)(i) and 13(1) (i-b) of the Hindu Marriages Act, 1955, as against this

petitioner.

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

2. The learned counsel appearing for the petitioner would submit

that the complaint as against the petitioner is false and frivolous and

baseless. Since the petitioner had already obtained a decree of divorce u/s.

13(1) (i) (i-b) of the Hindu Marriage Act, on the ground of adultery ad

desertion. As per Section 125(4) of CrPC., the respondent is not entilted

to receive maintenance if she is living in adultery or if without any

sufficient reason, she refuses to live with her husband. Although the

respondent alleges in her petition that the petitioner had obtained the ex-

parte decree by playing fraud though the petitioner denies the same. He

further submitted that the Court below failed to look into the petition in

M.C.No.21 of 2016 in para 8 of the respondent has stated that she had

filed a petition to set aside the ex-parte order dated 21.01.2013 in HMOP.

No.358/2012, the respondent has not chosen to mark the same assuming

but not admitting for a movement even if the respondent had filed the

petition to set aside the order. Unless it is set aside by the competent court

of law the respondent is not entitled to file this petition and the petition is

not maintainable as per the Apex Court judgment reported in CDJ 2011

SC 819. Therefore, the complaint itself is false and frivolous against the

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

petitioner. Hence he prayed to quash the same.

3. The learned counsel appearing for the respondent would submit

that the trial has been commenced and some of the witnesses have been

examined in this case.

4. Heard Mr.K.G. Senthil Kumar, learned counsel appearing for the

petitioner and Mr.K.Thiruvengadam, learned counsel appearing for the

respondent.

5. It is relevant to rely upon the judgment of the Hon'ble Supreme

Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the

case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-

" 12.So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.

13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.

6. Recently, the Hon'ble Supreme Court of India dealing in respect

of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the

case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it

has been held as follows:

“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”

7. Further the Hon'ble Supreme Court of India also held in the order

dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs.

K.R.Meenakshi & anr, as follows:

"9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.

..............

13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."

The above judgments are squarely applicable to this case and as such, the

points raised by the petitioner cannot be considered by this Court under

Section 482 Cr.P.C.

https://www.mhc.tn.gov.in/judis/ Crl.O.P.No. 2847 of 2017

8. In view of the above discussion, this Court is not inclined to

quash the proceedings in M.C.No.21 of 2016 on the file of the Chief

Judicial Magistrate, Krishnagiri. The petitioner is at liberty to raise all the

grounds before the trial Court. However, the petitioner shall be present

before the Court at the time of furnishing of copies, framing charges,

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

judgment. The trial Court is directed to complete the trial within a period

of six months from the date of receipt of copy of this Order.