Madras High Court
K.Arunkumar vs State Represented By on 7 December, 2021
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 15.12.2021
PRONOUNCED ON: 01.02.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
and
Crl.M.P.(MD)No.3770 of 2018
Crl.O.P.(MD)No.8450 of 2018:
K.Arunkumar : Petitioner/Accused
Vs.
1.State represented by
The Inspector of Police,
D-1, Tallakulam Police Station,
Madurai District.
(In Crime No.202 of 2015) : Respondent/Complainant
2.R.Pandi : Respondent / Defacto Complainant
PRAYER : Criminal Original Petition has been filed under Section 482 Cr.P.C,
to call for the records in Crime No.202 of 2015, pending on the file of the first
respondent police and quash the same.
Crl.O.P.(MD)No.17454 of 2019
1.Malairaja
2.Dineshkumar
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
3.S.Ganeshkumar : Petitioners/Accused 3, 6 and 7
Vs.
1.State represented by
The Inspector of Police,
D-1, Tallakulam Police Station,
Madurai District.
(In Crime No.202 of 2015) : Respondent/Complainant
2.R.Pandi : Respondent / Defacto Complainant
PRAYER : Criminal Original Petition has been filed under Section 482 Cr.P.C,
to call for the records in Crime No.202 of 2015, pending on the file of the first
respondent police and quash the same as far as these petitioners are concerned.
For Petitioners
in both cases : Mr.A.Jayaramachandran
For Respondents
in both cases : Mr.R.Sivakumar
Government Advocate(Crl.Side)
for R.1
COMMON ORDER
These Criminal Original Petitions have been filed, invoking Section 482
Cr.P.C., seeking orders to call for the records in Cr.No.202 of 2015 pending on
the file of the first respondent and quash the same.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
2. The petitioner in Crl.O.P.(MD)No.8450 of 2018 is the fourth accused
and the petitioners in Crl.O.P.(MD)No.17454 of 2019 are the accused Nos.3, 6
and 7 in Cr.No.202 of 2015, pending on the file of the first respondent police.
3. The case of the prosecution is that on 14.02.2015, which was Valentine's
Day, at about 03.00p.m., nearly 10 persons entered into Rajaji Children's Park
belonging to the Madurai Corporation without buying tickets, that when a staff
of the park was restraining them, they indulged in quarrel with him, that when
the second respondent/defacto complainant questioned the same, 4 persons
among them strangulated his right hand, that Women Constables who were
posted for security came to rescue him, that the above said persons abused the
Women Constables in filthy language and one among them shoved her by
pushing on her chest, that when the Sub-Inspector of Police came to the place, 3
among them, scaled the wall of the Park and fled away and that 7 persons issued
life threat to the Women Constables and ran away. On the basis of the complaint
lodged by the second respondent, F.I.R. came to be registered in Cr.No.202 of
2015 for the alleged offences under Sections 147, 294(b), 341, 353, 354, 506(i)
I.P.C., and Section 4 of TNPHW Act.
4. The learned Counsel for the petitioners would contend that the
impugned F.I.R., was registered on 14.02.2015 for the alleged offences 147,
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
294(b), 341, 353, 354, 506(i) I.P.C., and Section 4 of TNPHW Act, for which the
maximum prescribed sentence is upto 3 years and as such, the failure on the part
of the first respondent in completing the investigation and filed final report,
which resulted in non-taking of cognizance by the trial Court, has ultimately lead
to the above case being barred by the period of limitation under section 468(2)
Cr.P.C., and as such, the impugned F.I.R., is liable to be quashed on this ground
alone.
5. The learned Counsel for the petitioners would further submit that the
petitioners were students of Law College at that time, that they have completed
Law Course at Madurai Law College and already obtained Degree from the
Tamil Nadu Dr.Ambedkar Law University, that the Bar Council of Tamil Nadu
and Pondicherry has negated to permit them to enroll as Advocates owing to the
reason of pendency of the impugned F.I.R., against them and this Court at the
time of admission has granted an order of interim stay.
6. As rightly contended by the learned Government Advocate (Crl.Side)
appearing for the first respondent, the allegations and the charges levelled
against the petitioners are serious. As already pointed out, the petitioners have
abused the Women Constables on duty in filthy language and also one of them
shoved one Constable by pushing on her chest and that is why F.I.R., came to be
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
registered also for the offences 353, 354 I.P.C., and Section 4 of TNPHW Act.
But the main point that was canvassed by the learned Counsel for the petitioners
is with respect to limitation under Sections 468 and 473 Cr.P.C.
7. It is necessary to refer the judgment of a learned Judge of this Court in
Crl.O.P.(MD)No.18775 of 2021, dated 07.12.2021 in Thinakaran and Others
Vs. State represented by the Inspector of Police, Tirunelveli Junction Police
Station and another and the relevant passage is extracted hereunder:
“6. The learned counsel appearing for the petitioners drew my
attention the decision reported in 1987 Cri LJ 360 (Kathamuthu V.
Balammal). The Hon'ble Division Bench was called upon to answer
the question as to whether the launching of a criminal prosecution
after the lapse of the period of limitation prescribed under Section
468 of Cr.P.C, can the Court condone the delay after taking
cognizance of the offences or whether such condonation of delay
should precede the taking cognizance of the offences. In the
aforesaid Judgment, the Hon'ble Division Bench categorically
answered and held that any proceeding culminating in the
conviction of a person in a criminal case, the cognizance of which
has been taken after the expiry of the period of limitation as
prescribed under Section 468(2) of Cr.P.C. without first resorting to
Section 473 of Cr.P.C., is non est in the eye of law. The decision
reported in 1978 Cri.L.J.116 (Sulochana V. State Registrar of Chits,
Madras) was specifically disapproved.”
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
8. Another learned Judge of this Court in D.Senthilkumar Vs. The
Inspector of Police, Prohibition Enforcement Wing, T.Nagar Unit,
M.G.R.Nagar Police Station, Chennai – 600 083, (Crl.O.P.No.4307 of 2017,
dated 09.09.2020) has held as follows:
“7. Considering the rival submissions, it is seen that FIR was
registered on 25.06.2015 on the same day the vehicle was seized
for offence under Section 4(1)(a) Tamil Nadu Prohibition Act,
1937, for this offence the imprisonment is fixed for a term which
may extended to three months or with fine which may extended to
one thousand. As per Section 468(2) of Cr.P.C, the period of
limitation for filing final report expires on or before 24.06.2016.
Auto which was seized was ordered to be returned to the petitioner
in C.M.P.No. 4384 of 2015 by order dated 26.11.2015 by XXIII
Magistrate Court, Saidapet, Chennai, against which Crl.RC.No.74
of 2015 was filed by the respondent Police before the Additional
Sessions Judge, Chennai. It is seen that the Additional Deputy
Commissioner of Police sent notice for confiscating the Vehicle on
08.10.2015, since the owner of the vehicle failed to make any
objection the vehicle was confiscated and is in custody PEW unit
and from 26.11.2015 to 31.07.2018 revision case was pending. It
is seen that the respondent had filed the original documents
during enquiry before them Additional Session Court, Chennai
and due to which the charge sheet which was made ready on
21.09.2016, could not be filed before the concerned Magistrate
Court. This is an explanation offered by the learned counsel for
the respondent. There is no reason given why after disposal of
criminal revision on 13.07.2018 till date the charge sheet is yet to
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
be filed and numbered. Though as per 470 of Cr.P.C, exclusion of
time in certain cases are available, in this case no such grounds
are available. Further, no petition or reason given seeking
condonation of delay as per Section 473 Cr.P.C is made. The
valuable right accrued to an accused person cannot be allowed to
be taken away except by strictly satisfying the conditions
prescribed under Section 473 Cr.P.C. In any case, the exercise of
power under Section 473 Cr.P.C., extending the period of
limitation by condoning the delay in launching prosecution should
precede the taking cognizance of the offence. This Court following
the case of “Kathamuthu Versus Balammal reported in 1985
Crl.L.J 360”, finds the facts of the case no cognisance would be
taken in Criminal No.205 of 2015 since it would be bar beyond the
period of limitation. In view of the same the proceedings in Crime
No.205 of 2015 is quashed.
9. In the said judgment, the learned Judge has specifically held that
valuable right accrued to an accused person cannot be allowed to be taken away
except by strictly satisfying the conditions prescribed under Section 473 Cr.P.C.
The above decisions are squarely applicable to the case on hand. In the present
case, admittedly F.I.R. came to be registered on 14.02.2015. As rightly
contended by the learned Counsel for the petitioners, the maximum punishment
for the offences under which the petitioners are charged, is upto 3 years and
hence, the period of limitation as contemplated under Section 468 Cr.P.C., for
laying the final report will be 3 years. The fourth accused has filed the petition
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
on 15.05.2018 and whereas the other accused Nos.3, 6 and 7 have filed the
petition on 14.11.2019. Admittedly, the charge sheet has not been filed till
15.05.2018. This Court, at the time of admission of the first Criminal Original
Petition, by observing that the delay would only be termed as inordinate, has
granted the order of interim stay of the proceedings. Thereafter, the accused
Nos.3, 6 and 7 have filed the second petition and also obtained interim order.
10. When the matter was taken up on 18.11.2021, considering the
submission made by the learned Government Advocate(Crl.Side) that final report
has already been filed before the Court of the Judicial Magistrate No.II, Madurai,
this Court directed the Registry to get a report from the learned Judicial
Magistrate No.II, as to the stage of the case in Cr.No.202 of 2015, on the file of
the first respondent. In pursuance of the same, the learned Judicial Magistrate
No.II, Madurai has submitted a report dated 03.12.2021 stating that the case in
Cr.No.202 of 2015 is not pending before that Court and the same is pending
before the Additional Mahila Court (Magisterial Level), Madurai. The learned
Judicial Magistrate, Additional Mahila Court has also submitted a report stating
that no final report has been filed before that Court till date in Cr.No.202 of
2015.
11. As already pointed out, though some of the charges laid against the
petitioners are serious as stated by the learned Government Advocate (Crl.Side),
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
this Court is at loss to understand as to why such a case was kept pending in FIR
stage itself and charge sheet has not been filed for more than 3 years since the
registration of the case. Even now, the first respondent has not offered any
acceptable reason or explanation for inordinate delay.
12. As rightly held by the learned Single Judge in the second decision
above cited, the right accrued to the accused person, by not filing the final
report within the limitation period, cannot be allowed to be defeated except by
strictly satisfying the conditions prescribed under Section 473 Cr.P.C. Moreover,
it is not the case of the first respondent that any petition seeking condonation of
delay under Section 473 Cr.P.C., was made. Considering the above, this Court
has no hesitation to hold that the impugned proceedings are liable to be quashed.
13. In the result, both the Criminal Original Petitions are allowed and the
impugned proceedings in Cr.No.202 of 2015, pending on the file of the first
respondent are quashed. The benefit of this order will enure in favour of the non-
petitioning accused also. Consequently, the connected Miscellaneous Petition is
closed.
01.02.2022
Index : Yes/No
Internet : Yes/No
SSL
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
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 Inspector of Police,
D-1, Tallakulam Police Station,
Madurai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
K.MURALI SHANKAR, J.
SSL
PRE-DELIVERY ORDER MADE IN
Crl.O.P.(MD)Nos.8450 of 2018 and 17454 of 2019
01.02.2022
https://www.mhc.tn.gov.in/judis
