Madras High Court
Rakesh Raja vs State Rep By on 10 March, 2021
Crl.O.P.No.26929 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.26929 of 2015
and Crl.MP.Nos.1 and 2 of 2015
1. Rakesh Raja
2. Renugopal
3. Hemavathy ... Petitioners
Vs.
1. State rep by
The Inspector of Police,
W8 All Women's Police Station,
Thirumangalam, Chennai-101.
2.Mahalakshmi ... Respondents
Prayer: Criminal Original Petition is filed under Section 482 of
Cr.P.C. to call for the records relating to the case in CC.No.470 of
2014, on the file of the Chief Metropolitan Magistrate, Egmore and
quash the same.
For Petitioner : Mr.S.R.Varun Karthik.
For Respondent : Mr.T.Shanmugarajeswaran
GA(Crl.side) for R1.
Mr.H.Maruthiraj,
Legal aid counsel for R2.
ORDER
(This case has been heard through video conference)
This petition has been filed to call for the records relating
to the case in CC.No.470 of 2014, on the file of the Chief
Metropolitan Magistrate, Egmore and to quash the same.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
2. The brief facts of the prosecution case is that on
29.01.2013 the second respondent/defacto complainant preferred a
complaint before the first respondent/police stating that she got
married to the first petitioner on 29.08.2012 at Chennai and the
marriage was conducted in a very grand manner by spending
Rs.30lakhs and her parents had given 75 Soverigns of gold jewels,
3kgs of Silver articles and other house hold articles as
Sreedhanam, in addition to that they have also gifted 16 Soverigns
of Gold jewels to A1/first petitioner. After marriage, the first
petitioner/A1 had left to Australia for his job on 15.09.2012 and
later the defacto complainant/second respondent mortgaged her
jewels for Rs.3lakhs to get VISA and after obtaining VISA the
complainant went to Australia on 18.10.2012 by taking 25
Sovereigns of Gold jewels with her. The further averment is that
the first petitioner/A1 tortured her by demanding Rs.5lakhs and A1
also consumed alcohol and harassed her. Further, the first
accused had informed that his father/2nd petitioner wanted to start
a business and that an amount of Rs.5lakh is required and had
asked the second respondent/defacto complainant to get money
from her father. He had further told her to handover all the jewels
to his parents and the parents of the first petitioner also harassed
her. The second respondent/defacto complainant had further
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
stated that the first petitioner/A1 had harassed her only based on
the instigation of his parents/the 2nd and 3rd petitioners at Chennai,
thereby the defacto complainant suffered mentally and physically,
further she was sent back to Chennai from Australia to her parents
house on 16.01.2013. Further, when the defacto complainant
along with her parents had gone to the house of the petitioners 2
and 3 at Mogappair, they had prevented her to enter the house
stating if only she pays Rs.5lakhs and bring the remaining jewels
they would allow her to live with her son and that the 1 st petitioner
was acting as per the instructions of his parents and that his
parents were responsible for the split and that they were taking
steps to leave to Australia and arrange for second marriage for A1.
Based on the complaint an enquiry was conducted in
CSR/25/W8/AW8PS/2013 and thereafter a case was registered in
Cr.No.4 of 2013 under Section 498A, 406 IPC and Section 4 of
TamilNadu Prohibition of Harassment of Women Act 2005 and
Section 4 and 6 of Dowry Prohibition Act. The first respondent
sent the complaint to the Dowry Prohibition Officer and thereafter
during the course of investigation examined five witnesses and
filed final report against the accused for the offences under Section
498A and 406 IPC r/w.4 of TamilNadu Prohibition of Harassment of
Women Act 2005 and Section 4 and 6 of Dowry Prohibition Act. The
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
case was taken up in CC.No.470 of 2014 on the file of the Chief
Metropolitan Magistrate, Egmore, Chennai. This petition has been
filed to quash CC.No.470 of 2014.
3. The learned counsel for the petitioner would submit
that the marriage between the first petitioner and the defacto
complainant was solemenised on 29.08.2012 at Chennai as per
Hindu Rites and customs. At the time of marriage the petitioner
was employed at Australia and immediately after the marriage, the
first petitioner had taken the defacto complainant to Australia on
Tourist Visa and thereafter the first petitioner had also applied for
spouse Visa when she was in Australia. While they were in
Australia some misunderstanding arose between the first petitioner
and the defacto complainant. The defacto complainant returned
back to Chennai and filed a false complaint against the petitioners.
A case of misunderstanding had been exaggerated and a false
complaint has been given for offences under Section 498A and 406
IPC and under Section 4 of the Tamil Nadu Prohibition of
Harassment of Women Act 2005 and Section 4 and 6 of Dowry
Prohibition Act. Taking into consideration the materials on record,
no case for offences under the provisions alleged are made out
against the accused. Even as per the statements recorded from
the witnesses, no case can be made out against the petitioners for
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
offences under Section 498A IPC and under Section 4 of the Tamil
Nadu Prohibition of Harassment of Women Act 2005 and Section 4
and 6 of Dowry Prohibition Act. There is absolutely no averment or
allegation of subjecting the defacto complainant to cruelty within
the meaning of Section 498A IPC. Further, it is the admitted case
of the prosecution that the entire articles and the amounts were
with the custody of the defacto complainant and her parents and
thereby there was no case of entrustment of any property and
offence under Section 406 IPC cannot be made out.
4. The learned counsel for the respondent would further
submit that the marriage was solemnised on 29.08.2012 and the
complaint was made on 29.01.2013 within five months of
marriage. Though the complaint was initially registered in
CSR/25/W8/AWPS/2013, the respondent without referring the
complaint to the District Social Welfare Officer/Dowry Prohibition
Officer, on the instance of the father of the defacto complainant
who was a Deputy Collector in the State Government and an
influential person immediately got the case registered for the
offence under Section 498A and 406 IPC and under Section 4 of
the Tamil Nadu Prohibition of Harassment of Women Act 2005 and
Section 4 and 6 of Dowry Prohibition Act. After registration of the
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
case, the complaint was referred to the District Social Welfare
Officer/Dowry Prohibition Officer for enquiry and she had after due
enquiry concluded that there was no demand of dowry. Since, the
report of the District Social Welfare Officer/Dowry Prohibition
Officer was against the case of the prosecution, the 1st respondent
without adding her as a witnesses and without annexing the report
has filed the final report. In the meantime, the petitioners were
harassed by various complaints given by the defacto complainant
to different authorities. Complaints were preferred by the defacto
complainant against the petitioners before the Tamil Nadu State
Women's Commission, Chennai and before the Judicial Magistrate,
Alandur under the Domestic Violence Act in CMP.No.5993 of 2013.
Later the 1st petitioner filed a petition for divorce in OP.No.3587 of
2013 before the Principal Family Court, Chennai on the ground of
cruelty and it was decreed on 17.06.2015. Subsequently, after the
divorce the defacto complainant did not proceed further and she
got married to one Arun Govindan on 20.01.2016 at Chennai and
she had migrated to Australia. Subsequently, the marriage
between the defacto complainant and the said Arun Govindan has
also been dissolved by the Federal Circuit Court of Australia vide
Divorce order in File No:(P)MLC9333/2017 dated 19.12.2017.
Meanwhile the proceedings against the petitioners filed by the
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
defacto complainant under the Domestic Violence Act before the
Judicial Magistrate, Alandur in CMP.No.5993 of 2013 was dismissed
for non prosecution on 18.09.2015.
5. The learned counsel would further submit that
thereafter the 1st petitioner got married to one Vamsaroopa
Surapareddy on 22.11.2015 at Chennai and is now settled at
Australia and a girl child was born to them on 03.01.2018 and the
child is now three years old. The 1st petitioner also reliably
understands that the defacto complainant after her second divorce
is also married again and settled in Australia. The learned counsel
would further submit that a malicious complaint of demand of
dowry and harassment has been filed under the heat of the
moment over the issues without proper deliberations only with an
ulterior motive for wreaking vengeance to spite the petitioner due
to private and personal grudge. The trial Court had taken the
same on file.
6. The learned counsel for the petitioner would further
submit that much water has flown down the bridge and now the 1st
petitioner and the defacto complainant have started separate lives
on their own and the defacto complainant had not proceeded
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
further with the complaint and she has also not appeared before
this Court despite service of notice on her. The learned counsel for
the petitioner would further contend that even taking into
consideration the entire material on record, the offences against
the petitioners are not made out and allowing the proceedings to
continue would be nothing but harassment and abuse of process of
Court and that ends of justice requires that the proceedings ought
to be quashed. He would submit that the case of the petitioners
fall within categories (1) and (7) enumerated in the case of State
of Haryana V. Bhajan lal reported in 1992 (1) SCC 335.
7. Further in support of his contention he would rely on
the following judgments of the Hon'ble Apex Court as follows :-
1. Preeti Gupta and another v. State of Jharkhand
and others reported in (2010) 7 SCC 667.
2. Varala Bharath Kumar and another v. State of of
Telengana and another Preeti Gupta and
another v. State of Jharkhand and others
reported in (2017) 9 SCC 413.
3. Vineet Kumar and others v. State of Uttar
Pradesh and another reported in (2017) 13 SCC
369 wherein the Hon'ble Apex Court had referred and
relied on its earlier judgments in Sunder Babu and
others v. State of Tamil Nadu reported in (2009)
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
14 SCC 244 and Priy Vrat Singh and others v.
Shyam Ji Sahai reported in (2008) 8 SCC 232.
4. State of Haryana and others v. Bhajan lal
reported in 1992 (1) SCC 335.
8. Per contra, the learned Government Advocate (crl.side)
would submit that the case has been registered based on the
complaint given by the defacto complainant. The marriage
between the defacto complainant and the first petitioner was
solemnised on 29.08.2012 at Chennai. As per defacto
complainant, the parents of the defacto complainant had given
75soverigns of gold, 3kgs of Silver and other house hold articles as
Sreedhana and addition to that they have also given 16soverigns
of Gold jewels and 15lakhs worth about diamonds to the 1st
petitioner. The first petitioner had taken the defacto complainant
to Australia under Tourist visa and later he had sent her back to
India on the guise of calling her after obtaining spouse visa. Later
on the instigation of his parents, the first petitioner had demanded
Rs.5lakhs to start business. The parents of the defacto
complainant had spent Rs.5lakhs at the time of Betrothal and they
had also spent Rs.10lakhs for conducting the marriage in a grand
manner.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
9. In reply the learned counsel for the petitioner would
submit there is absolutely no material to show that the first
petitioner demanded any dowry to conduct the betrothal or the
marriage. Even as per the statement recorded from the witnesses,
after the marriage the entire jewels and the other sreedhana
articles remained in the custody of the parents of the defacto
complainant and neither the first petitioner nor the petitioners 2
and 3 have in possession of the materials belonging to the defacto
complainant and thereby there was absolutely no entrustment of
any material to make out offence of criminal breach of trust.
10. Despite service of notice, through Court and privately
the second respondent/defato complainant did not appear before
the Court. Thereby this Court directed the 1st respondent police to
intimate the second respondent about the pendency of the case
and listing of the matter for hearing. It was reported by the first
respondent that the second respondent was residing out of the
country and intimation was given to her father who is also a
witness in this case and that he has not shown any interest in the
case. Since the second respondent did not appear despite
intimation this Court appointed Mr.Maruthiraj, legal aid counsel to
represent the second respondent.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
11. Mr.Maruthiraj, learned legal aid counsel appearing for
the second respondent/defacto complainant would submit that as
per the available material, the 1st petitioner before his marriage
was employed at Australia and there was demand of dowry before
the marriage and that the marriage was conducted by the parents
of the defacto complainant after spending considerable amount.
After the marriage the 1st petitioner had taken the defacto
complainant to Australia on tourist visa. There he had harassed
the defacto complainant. Whileso, the 2nd and 3rd petitioners have
demanded a sum of Rs.5lakhs for starting a business from the
father of the defacto complainant. Later under the guise of
obtaining a spouse visa, the defacto complainant was sent back to
India, the 2nd and 3rd petitioners have prevented the defacto
complainant to enter their house demanding the amount for their
son and later abused her and her father stating that if only the
amount of Rs.5 lakhs is paid, the defacto complainant would be
allowed to live with their son. However, he would submit that the
materials furnished by the petitioners would go to show that the
marriage between the 1st petitioner and the defacto complainant
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
was dissolved and thereafter she had married one Arun Govindan
on 20.01.2016 at Chennai and she had migrated to Australia and
subsequently, the marriage between the defacto complainant and
the said Arun Govindan had also been dissolved by the Federal
Circuit Court of Australia vide Divorce order in File
No:(P)MLC9333/2017 dated 19.12.2017.
12. Heard the counsels. Before adverting to the issues in
this case, it is necessary to refer to the relevant paragraphs of the
judgment referred to by the counsel for the petitioner.
13. The Hon'ble Apex Court in Preeti Gupta and another
V. State of Jharkhand and another reported in (2010) 7 SCC
667 has held as follows :
“20. This Court had occasion to examine the
legal position in a large number of cases. In R.P.
Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ
1239] this Court summarised some categories of cases
where inherent power can and should be exercised to
quash the proceedings:
(i) where it manifestly appears that there is a
legal bar against the institution or continuance of the
proceedings;
(ii) where the allegations in the first
information report or complaint taken at their face value
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
and accepted in their entirety do not constitute the
offence alleged;
(iii) where the allegations constitute an
offence, but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to prove the
charge.
21. This Court in State of Karnataka v. L.
Muniswamy [(1977) 2 SCC 699 : 1977 SCC (Cri) 404]
observed that the wholesome power under Section 482
CrPC entitles the High Court to quash a proceeding when
it comes to the conclusion that allowing the proceeding
to continue would be an abuse of process of court or that
the ends of justice require that the proceeding ought to
be quashed. The High Courts have been invested with
inherent powers, both in civil and criminal matters, to
achieve a salutary public purpose. A court proceeding
ought not to be permitted to degenerate into a weapon of
harassment or persecution. In this case, the Court
observed that ends of justice are higher than the ends of
mere law though justice must be administered according
to laws made by the legislature. This case has been
followed in a large number of subsequent cases of this
Court and other courts.
22. In Madhu Limaye v. State of
Maharashtra [(1977) 4 SCC 551 : 1978 SCC (Cri) 10] a
three-Judge Bench of this Court held as under: (SCC p.
551)
“… In case the impugned order clearly brings
out a situation which is an abuse of process of court, or
for the purpose of securing the ends of justice
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
interference of the High Court is absolutely necessary,
then nothing contained in Section 397(2) can limit or
affect the exercise of the inherent power of the High
Court. Such cases would necessarily be few and far
between. One such case would be the desirability of
the quashing of a criminal proceeding initiated illegally,
vexatiously or as being without jurisdiction. The
present case would undoubtedly fall for exercise of the
power of the High Court in accordance with Section
482 of the 1973 Code even assuming that the invoking
of the revisional power of the High Court is
impermissible.”
23. This Court in Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1
SCC 692 : 1988 SCC (Cri) 234] observed in SCC para 7
as under: (SCC p. 695)
“7. The legal position is well settled that
when a prosecution at the initial stage is asked to be
quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made prima
facie establish the offence. It is also for the court to
take into consideration any special features which
appear in a particular case to consider whether it is
expedient and in the interest of justice to permit a
prosecution to continue. This is so on the basis that the
court cannot be utilised for any oblique purpose and
where in the opinion of the court chances of an
ultimate conviction are bleak and, therefore, no useful
purpose is likely to be served by allowing a criminal
prosecution to continue, the court may while taking
into consideration the special facts of a case also
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
quash the proceeding even though it may be at a
preliminary stage.”
.....
.....
.....
32. It is a matter of common experience that most
of these complaints under Section 498-A IPC are filed in the
heat of the moment over trivial issues without proper
deliberations. We come across a large number of such
complaints which are not even bonafide and are filed with
oblique motive. At the same time, rapid increase in the number
of genuine cases of dowry harassment is also a matter of
serious concern. ”
14. In Varala Bharath Kumar and another V. State of
Telengana and another reported in (2017) 9 SCC 413 the
Hon'ble Apex Court has held :
“5. Respondent 2, though served, has chosen to
remain absent. We have heard the learned counsel for the
rival parties who are present and perused the record. Having
carefully perused the first information report, as well as, the
contents of the charge-sheet, we find that the ingredients of
Sections 498-A and 406 IPC are not forthcoming. The entire
story narrated by the complainant does not attract the
aforementioned provisions, as there has not been any dowry
demand of the appellants or harassment to the second
respondent. Before proceeding further, it would be relevant
to note the provisions of Sections 498-A, 405 and 406 of the
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
Penal Code, which read thus:
“498-A. Husband or relative of husband
of a woman subjecting her to cruelty .—Whoever,
being the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend
to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, “cruelty”
means—
(a) any wilful conduct which is of such a
nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand.”
“405. Criminal breach of trust .—Whoever,
being in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly
uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust
is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
such trust, or wilfully suffers any other person so to do,
commits “criminal breach of trust”.
Explanation 1.—A person, being an employer of an
establishment whether exempted under Section 17 of
the Employees' Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not who deducts
the employee's contribution from the wages payable to
the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being
in force, shall be deemed to have been entrusted with
the amount of the contribution so deducted by him and if
he makes default in the payment of such contribution to
the said fund in violation of the said law, shall be
deemed to have dishonestly used the amount of the
said contribution in violation of a direction of law as
aforesaid.
Explanation 2.—A person, being an employer, who
deducts the employees' contribution from the wages
payable to the employee for credit to the Employees'
State Insurance Fund held and administered by the
Employees' State Insurance Corporation established
under the Employees' State Insurance Act, 1948 (34 of
1948), shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the
said Fund in violation of the said Act, shall be deemed to
have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
406. Punishment for criminal breach of trust .—
Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a
term which may extend to three years, or with fine, or
with both.”
6. It is by now well settled that the
extraordinary power under Article 226 or inherent
power under Section 482 of the Code of Criminal
Procedure can be exercised by the High Court, either
to prevent abuse of process of the court or otherwise
to secure the ends of justice. Where allegations made
in the first information report/the complaint or the
outcome of investigation as found in the charge-
sheet, even if they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out the case against
the accused; where the allegations do not disclose
the ingredients of the offence alleged; where the
uncontroverted allegations made in the first
information report or complaint and the material
collected in support of the same do not disclose the
commission of offence alleged and make out a case
against the accused; 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, the power under Article 226 of the
Constitution of India or under Section 482 of the
Code of Criminal Procedure may be exercised.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
7. While exercising power under Section
482 or under Article 226 in such matters, the court
does not function as a court of appeal or revision.
Inherent jurisdiction under Section 482 of the Code
though wide has to be exercised sparingly, carefully
or with caution and only when such exercise is
justified by the tests specifically laid down under
Section 482 itself. It is to be exercised ex debito
justitiae to do real and substantial justice, for the
administration of which alone courts exist. The court
must be careful and see that its decision in exercise
of its power is based on sound principles. The
inherent powers should not be exercised to stifle a
legitimate prosecution. Of course, no hard-and-fast
rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction
of quashing the proceedings at any stage.
8. We are conscious of the fact that,
Section 498-A was added to the Code with a view to
punish the husband or any of his relatives, who
harass or torture the wife to coerce her or her
relatives to satisfy unlawful demands of dowry.
Keeping the aforementioned object in mind, we have
dealt with the matter. We do not find any allegation
of subjecting the complainant to cruelty within the
meaning of Section 498-A IPC. The records at hand
could not disclose any wilful conduct which is of such
a nature as is likely to drive the complainant to
commit suicide or to cause grave injury or danger to
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
life, limb or health (whether mental or physical) of
the complainant. So also, there is nothing on record
to show that there was a demand of dowry by the
appellants or any of their relatives, either prior to the
marriage, during the marriage or after the marriage.
The record also does not disclose anywhere that the
husband of the complainant acted, with a view to
coerce her or any person related to her to meet any
unlawful demand of any property or valuable
security.
9. The ingredients of criminal breach of
trust are also not forthcoming from the records as
against the appellants. The allegations contained in
the complaint and the charge-sheet do not satisfy the
definition of criminal breach of trust, as contained in
Section 405 IPC. In view of the blurred allegations,
and as we find that the complainant is only citing the
incidents of unhappiness with her husband, no useful
purpose will be served in continuing the prosecution
against the appellants. This is a case where there is a
total absence of allegations for the offences
punishable under Section 498-A and Section 406 IPC.
In the matter on hand, the allegations made in the
first information report as well as the material
collected during the investigation, even if they are
taken at their face value and accepted in their
entirety, do not prima facie constitute the offences
punishable under Sections 498-A and 406 IPC against
the appellant-accused. So also the uncontroverted
allegations found against the appellants do not
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
disclose the commission of the offence alleged and
make out a case against the accused. The
proceedings initiated against the appellants are liable
to be quashed.
15. In Vineet Kumar and others v. State of Uttar
Pradesh and another reported in (2017) 13 SCC 369 the
Hon'ble Apex Court has held :
“26. A three-Judge Bench in State of
Karnataka v. M. Devendrappa had the occasion to
consider the ambit of Section 482 CrPC. By
analysing the scope of Section 482 CrPC, this Court
laid down that authority of the Court exists for
advancement of justice and if any attempt is made
to abuse that authority so as to produce injustice
the Court has power to prevent abuse. It further
held that Court would be justified to quash any
proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. The following was laid
down in para 6 :
“6. … All courts, whether civil or
criminal possess, in the absence of any express
provision, as inherent in their constitution, all
such powers as are necessary to do the right and
to undo a wrong in course of administration of
justice on the principle quando lex aliquid alicui
concedit, concedere videtur et id sine quo res
ipsae esse non potest (when the law gives a
person anything it gives him that without which it
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
cannot exist). While exercising powers under the
section, the court does not function as a court of
appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised
sparingly, carefully and with caution and only
when such exercise is justified by the tests
specifically laid down in the section itself. It is to
be exercised ex debito justitiae to do real and
substantial justice for the administration of which
alone courts exist. Authority of the court exists
for advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent abuse.
It would be an abuse of process of the court to
allow any action which would result in injustice
and prevent promotion of justice. In exercise of
the powers court would be justified to quash any
proceeding if it finds that initiation/continuance of
it amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence is
disclosed by the complaint, the court may
examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look
into the materials to assess what the complainant
has alleged and whether any offence is made out
even if the allegations are accepted in toto.”
27. Further in para 8 the following was
stated: [State of Karnataka v. M. Devendrappa,
(2002) 3 SCC 89
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
“8. … Judicial process should not be an
instrument of oppression, or, needless
harassment. Court should be circumspect and
judicious in exercising discretion and should take
all relevant facts and circumstances into
consideration before issuing process, lest it would
be an instrument in the hands of a private
complainant to unleash vendetta to harass any
person needlessly. At the same time the section
is not an instrument handed over to an accused
to short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power
under Section 482 of the Code and the categories
of cases where the High Court may exercise its
power under it relating to cognizable offences to
prevent abuse of process of any court or
otherwise to secure the ends of justice were set
out in some detail by this Court in State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335”
28. In Sunder Babu v. State of
T.N. [Sunder Babu v. State of T.N., (2009) 14 SCC
244, this Court was considering the challenge to the
order of the Madras High Court where application
was under Section 482 CrPC to quash criminal
proceedings under Section 498-A IPC and Section 4
of the Dowry Prohibition Act, 1961. It was
contended before this Court that the complaint filed
was nothing but an abuse of the process of law and
allegations were unfounded. The prosecuting agency
contested the petition filed under Section 482 CrPC
taking the stand that a bare perusal of the complaint
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
discloses commission of alleged offences and,
therefore, it is not a case which needed to be
allowed. The High Court accepted the case of the
prosecution and dismissed the application. This
Court referred to the judgment in Bhajan Lal case
and held that the case fell within Category 7. The
Apex Court relying on Category 7 has held that the
application under Section 482 deserved to be
allowed and it quashed the proceedings.
29. In another case in Priya Vrat Singh
v. Shyam Ji Sahai, this Court relied on Category 7
as laid down in State of Haryana v. Bhajan Lal. In
the above case the Allahabad High Court had
dismissed an application filed under Section 482
CrPC to quash the proceedings under Sections 494,
120-B and 109 IPC and Sections 3 and 4 of the
Dowry Prohibition Act. After noticing the background
facts and parameters for exercise of power under
Section 482 CrPC the following was stated in paras 8
to 12: (Priya Vrat v. Shyam Ji Sahai, (2008) 8 SCC
“8. Further, it is pointed out that the
allegation of alleged demand for dowry was made
for the first time in December 1994. In the
complaint filed, the allegation is that the dowry
torture was made sometime in 1992. It has not
been explained as to why for more than two
years no action was taken.
9. Further, it appears that in the
complaint petition apart from the husband, the
mother of the husband, the subsequently married
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
wife, husband's mother's sister, husband's
brother-in-law and Sunita's father were
impleaded as party. No role has been specifically
ascribed to anybody except the husband and that
too of a dowry demand in February 1993 when
the complaint was filed on 6-12-1994 i.e. nearly
after 22 months. It is to be noted that in spite of
service of notice, none has appeared on behalf of
Respondent 1.”
16. In State of Haryana v. Bhajan Lal and others
reported in (1992) 1 SCC 335 the Hon'ble Apex Court has held :
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code 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 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the
ends of justice, though 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 of myriad kinds of cases wherein such power should be
exercised.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
(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.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
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.
103. We also give a note of caution to the effect
that the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that too
in the rarest of rare cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the
complaint and that the extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the court to act according to
its whim or caprice. ”
17. Now while perusing the materials on record in this
case, the allegations in the complaint is that the marriage between
the defacto complainant and the 1st petitioner was solemnised on
29.08.2012 at Chennai and the marriage was conducted in a very
grand manner by spending a sum of Rs.30lakhs, at the time of
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
marriage her parents had given 75 Soverigns of Gold jewels, 3kgs
of Silver article and other house hold articles as Sreedhana. In
addition to that they have also gifted 16 Soverigns of Gold jewels
to A1/1st petitioner and after the marriage, the 1st petitioner had
left to Australia for his employment on 15.09.2012 and later the
defacto complainant had gone to Australia after mortgaging part of
her jewels for Rs.3lakhs. The further allegation is that the 2 nd and
3rd petitioners had demanded a sum of Rs.5lakhs from the parents
of the defacto complainant for starting a business and thereafter,
she was sent back to India in the guise of obtaining spouse visa
and she came back to her parent's house in India and that the 2nd
and 3rd petitioners prevented the defacto complainant from
entering the matrimonial house demanding a sum of Rs.5lakhs for
starting business for the first petitioner. Thereafter, the defacto
complainant had given a complaint. Admittedly as per the
statements recorded form the witnesses the jewels gifted to the
defacto complainant during her marriage were in her custody only
and that she had only mortgaged jewels and taken Rs.3lakhs for
obtaining visa to Australia. Further, in this case after registration
of the case, the matter had been referred to the District Social
Welfare Officer/Dowry Prohibition Officer for enquiry. In the
meanwhile, the defacto complainant had preferred a complaint
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
before the State Women's Commission and had also preferred a
complaint before the Judicial Magistrate, Alandur under the
Domestic Violence Act. The 1st petitioner had filed a petition for
divorce on the ground of cruelty, the marriage had been dissolved
on 17.06.2015, thereafter the defacto complainant has not
proceeded further. The complaint filed by the defacto complainant
before the State Women's Commission and the Judicial Magistrate,
Alandur were also closed on account of non appearance of the
complainant. Subsequently, the defacto complainant had also
married one Arun Govindan on 20.01.2016 and the defacto
complainant migrated to Australia and the marriage between the
defacto complainant and the said Arun Govindan has been
dissolved by the Federal Circuit Court of Australia vide Divorce
order in File No:(P)MLC9333/2017 dated 19.12.2017. The 1st
petitioner has also got married with one Vamsaroopa Surapareddy
and he has also got a child. In the meanwhile, the 1st petitioner
has completed the investigation and filed final report. Despite
service of notice, the defacto complainant has not shown any
interest in prosecuting the case. Further, it is reported that the
defacto complainant is settled abroad and that her father had also
not shown any interest in pursuing the matter.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
18. In such circumstances, this Court perused the
complaint and the materials available in CC.No.470 of 2014
pending on the file of the Chief Metropolitan Magistrate, Egmore,
Chennai. Perusal and analysis of materials including the
statements show that the entire sreedhana articles and other
house hold articles were left back in the custody of the defacto
complainant and there are no materials to show that first petitioner
or his parents are holding the properties. Further, the allegations
against the petitioners in respect of demand of dowry and
matrimonial cruelty by the petitioners are also vague and blurred.
The reading of the complaint does not expose any cruelty within
the meaning of Section 498A IPC. Further, the materials on hand
do not disclose any wilful conduct on the part of the petitioners
which is of such a nature as is likely to drive the complainant to
commit suicide or to cause grave injury or danger to life, limb or
health (whether mental or physical). Further, the allegations of
demand of dowry by the petitioners prior to the marriage, during
the marriage or after the marriage is also vague. The ingredients
of criminal breach of trust are also not forthcoming from the
records as against the petitioners. Since, it is the admitted case of
the defacto complainant that the entire properties and jewels were
left in the custody of the defacto complainant. The allegations
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
contained in the complaint and the charge sheet do not satisfy the
definition of criminal breach of trust, as contained in Section 405
IPC. The allegations made in the FIR as well as the materials
collected do not prima facie constitute the offence alleged against
the petitioners. Further, after the complaint to the police, the
defacto complainant has also filed complaints against the
petitioners before the State Women's Commission and before the
Judicial Magistrate, Alandur under the Protection of Women from
Domestic Violence Act. Since, the defacto complainant did not
follow up the cases, they were also dismissed for non prosecution.
It could be seen that the complaint has been filed out of
matrimonial misunderstanding in the heat of the moment over
certain trivial issues without proper deliberations. It is also
brought to the notice of this Court that subsequently the marriage
between the first petitioner and the defacto complainant had been
dissolved by the Principal Judge, Family Court, Chennai in
OP.No.3587 of 2013 on the ground of cruelty on 17.06.2015.
Subsequent to the divorce, the defacto complainant did not
proceed further and later she has got married to one Arun
Govindan on 20.01.2016 at Chennai and she got migrated to
Australia. Thereafter, the marriage between the defacto
complainant and the said Arun Govindan has been dissolved by the
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
Federal Circuit Court of Australia. Since, the defacto complainant
did not pursue the complaint filed before the Judicial Magistrate,
Alandur, it was dismissed for non prosecution on 18.09.2015.
After 2015, the defacto complainant had also not proceeded
further. Now both parties have started their own lives and happily
married again and are settled in different countries. The defacto
complainant has not appeared before the Court, despite notice.
Further it is also reported by the first respondent that the father of
the defacto complainant who is a witness in this case has also not
shown any interest in this case.
19. Under such circumstances, this Court is of the opinion
that allowing the petitioners to face the prosecution would be an
exercise in futility amounting to abuse of process of Court. Further
this Court is also of the opinion that this case squarely falls under
the categories (3) and (7) in Paragraph 102 of Bhajan Lal case
(cited supra). As stated above, since no useful purpose will be
served in allowing the proceedings to be continued, it requires
interference of this Court by exercising jurisdiction under section
482 Cr.PC.
20. In view of the above, the Crl.OP.No.26929 of 2015
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
stands allowed and consequently, the proceedings pending against
the petitioners in CC.No.470 of 2014 on the file of the Chief
Metropolitan Magistrate, Egmore, Chennai stands quashed.
Consequently, connected miscellaneous petitions are closed.
21. Mr.H.Maruthiraj, learned legal aid counsel appointed
by this Court for the second respondent/defacto complainant is
entitled for remuneration as per rules.
10.03.2021.
tsh
To
1. The Chief Metropolitan Magistrate, Egmore, Chennai.
2. The Public Prosecutor, High Court, Madras.
3. The Tamil Nadu State Legal Services Authority, High Court,
Madras.
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
A.D.JAGADISH CHANDIRA, J.
tsh
http://www.judis.nic.in
Crl.O.P.No.26929 of 2015
Crl.O.P.No.26929 of 2015
10.03.2021.
http://www.judis.nic.in
