Madras High Court
Mohamed Sharifudeen vs State Through on 19 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.3165 of 2019
and
Crl.MP(MD)Nos.1764, 1765 of 2019 and 2569 of 2020
Mohamed Sharifudeen : Petitioner/A1
Vs.
1.State through
The Inspector of Police,
All Women Police Station,
Palayamkottai,
Tirunelveli District.
In Crime No.29 of 2012. : R1/Complainant
2.A.Nooru Nazrin : R2/De-facto Complainant
Prayer: Criminal Original Petition is filed under Section 482
Cr.P.C., to call for the records in CC No.88 of 2013 on the file of the
learned Judge, Additional Mahila Court (Magisterial Level),
Tirunelveli and quash the same as far as the petitioner is
concerned.
For Petitioner : Mr.B.N.Raja Mohamed
For 1st Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
For 2nd Respondent : Mr.V.Kannan
https://www.mhc.tn.gov.in/judis
2
ORDER
This petition is filed seeking quashment of the case in CC No.
88 of 2013 pending on the file of the Additional Mahila Court
(Magisterial Level), Tirunelveli.
2.The case of the prosecution in brief:-
The first accused is the husband of the de-facto complainant,
who is the 2nd respondent herein. A2 and A3 are the parents of A1.
A4 to A6 are brothers of A1. The 2nd respondent/de-facto
complainant lodged a complaint that she was married to A1 on
06.11.2005 and during the time of marriage, she was given 65
sovereign of jewels, apart from Sridhana. After marriage, she was
living with this petitioner/A1 under joint family and on 06.04.2007,
a child was born. But the parents of this petitioner/A1 did not
permit her parents to visit the child and the de-facto complainant
was harassed by one maid servant and the accused persons also
not permitted her parents to visit the 2nd child, who born on
09.01.2009. Even after the birth of the 2nd child, harassment
continued. When they were separately living in Chennai, A1
demanded Rs.25,00,000/- for purchasing a house and thereby
harassed her. Similarly A2 to A6 also harassed her. On 14.01.2009,
she was driven out from the matrimonial house.
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3.On the basis of the complaint given by the 2nd respondent, a
case in Crime No.27 of 2012 was registered for the offence
punishable under sections 498(A), 406 IPC and section of 4 of
Dowry Prohibition Act and section 4 of Harassment of Women Act.
After investigation, final report has been filed before the Additional
Mahila Court (Magisterial Level), Tirunelveli, which was taken
cognizance in CC No.88 of2013.
4.Seeking quashment of the final report, on the previous
occasion, all the accused persons filed Crl.OP(MD)No.12837 of
2013 before this court. That petition filed in respect of this
petitioner was withdrawn as dismissed. However, in respect of
other accused persons, that petition was allowed and the
proceedings pending in CC No.88 of 2013 on the file of the Judicial
Magistrate No.1, Tirunelveli, (Now it has been transferred to
Additional Mahila Court (Magisterial Level), Tirunelvelli) was
quashed in so far as A2 to A6 are concerned. After that, this
petition came to be filed by A1 seeking quashment of the
proceedings mainly on the ground that thalaq was pronounced by
this petitioner/A1, on 11.04.2012, 10.05.2012 and 11.06.2012. That
was also confirmed by Government Khazi, Tirunevelli, by his order,
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dated 03.09.2012 and there was a long delay on the part of the 2 nd
respondent in filing the complaint.
5.Heard both sides.
6.The first objection that has been made by the learned
Additional Public Prosecutor as well as the 2nd respondent is that
when the first petition filed by this petitioner was dismissed as
withdrawn, no liberty was given to the petitioner to file a fresh
petition for the same cause of action. So, perusal of the order
shows that no such permission was granted to file petition for the
same cause of action.
7.In response, the learned counsel appearing for the
petitioner/A1 would submit that there is a clear change of
circumstance in this matter and the earlier petition was not filed on
the basis of 3rd Talaq that has been pronounced by him and only as
a counter blast, the present complaint came to be filed by the 2 nd
respondent. For that purpose, he win draw attention of this court to
the dates and events. But however, the learned Additional Public
Prosecutor would submit that so far four witnesses were examined
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before the trial court in chief, but they have not been cross
examined by the petitioner. So perusal of the records shows that
interim stay has been granted by this court, by order, dated
01.03.2019 and it has been periodically extended till 29.04.2019.
Thereafter, the matter was not listed before this court. Perhaps,
only after 29.04.2019, four witnesses would have been examined in
chief before the trial court. Whatever it may be, even though the 2nd
petition under Section 482 Cr.P.C, quashment of criminal
proceedings will lie, but there must be change of circumstances or
the facts and circumstances of the case must meet the ends of
justice.
8.It has been well settled by the Hon'ble Supreme Court in
the case of Superintendent and Remembrancer of Legal
Affairs, West Bengal Vs. Mohan Singh and others (AIR 1975
SC 1002) that under the change of circumstances, second
application is very well maintainable. As mentioned earlier, the only
qualification is that quashment must be necessary to secure the
ends of justice. Another qualification is there must be a change of
circumstances. Here, absolutely there is no change of
circumstance, except stating that the earlier application was not
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filed on the ground of Talaq, that was pronounced by this petitioner.
So the matter requires disposal on merits, even though the
technical objection is raised by the 2nd respondent.
9.The petitioner/A1 first relied upon the mental and health
condition of the 2nd respondent. He has enclosed the medical
treatment records in the typed set of papers wherein it has been
mentioned that the 2nd respondent is complaining about the
abnormal behavior, sad mood, etc. and now, she was suffering from
Recurrent Depressive Disorder with Psychotic Features. She was
also advised to undergo family counselling with the parents, family
members and husband etc. So reading of this medical records
shows that the 2nd respondent was suffering from the above said
mental disorder. But what was important is that for the purpose of
counselling, cooperation of the parents and husband was also
recommended. But that was not extended to her.
10.In the complaint, dated 05.05.2010, the de-facto
complainant has stated that her in-laws are not permitting to meet
her husband. Another reasons have also been stated. Finding that
the second marriage is going to be performed by the petitioner, the
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father of the 2nd respondent gave a complaint on 16.04.2012 for the
Talaq notice, that has been issued by this petitioner. Later, the 2nd
respondent/de-facto complainant moved Cr.MP No.6621 of 2012
before the Judicial Magistrate No.1, Tirunelveli under section
156(3) of the Criminal Procedure Code, seeking a direction to the
police to register the case and investigate the matter. In pursuance
of which, the present FIR came to be registered and investigation
has been undertaken. Now, 2nd respondent/de-facto complainant is
having three children. Whether in the circumstance of the case,
there was any harassment by the petitioner as stated in the
complaint and in the final report, are the matter for trial.
11.In the written submission, the learned counsel for the
petitioner submitted that even though the trial is commenced, there
can be no bar for this court to entertain the petition filed under
Section 482 of Cr.P.C. For that purpose, the learned counsel
appearing for the petitioner relied upon the judgement of the
Hon'ble Supreme Court in various, such as in the case of Rashmi
Chopra Vs. The State of Uttar Pradesh and Kamlesh Kumar
Vs. State of Bihar and Anil Khadkiwala Vs. State
(Government NCT of Delhi and another). So it is settled
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position of law that in the above judgment of the Hon'ble Supreme
Court, it has been pointed out that mere commencement of the trial
proceedings, may not be a bar for this court to entertain the
petition under section 482 Cr.P.C. So there can be no quarrel on
this proposition.
12.The learned counsel appearing for the petitioner further
submitted that in view of the quashment of the criminal case
against the co-accused in Crl.OP(MD)No.12837 of 2013, dated
10.12.2018, the same evidence, which are available in this matter,
are one and the same. Naturally this criminal proceedings will also
end in acquittal and so, he would submit that no purpose is going to
be served. But I am unable to agree with the stand that has been
taken by the petitioner.
13.It is settled proposition of law that when the parent case
ended in acquittal, the split up matter can be quashed, when the
evidence that let in before the trial court, in which the parent case
is also one and the same and inseparable in nature and this position
has been well settled by the Hon'ble Supreme Court in the case of
Sat Kumar Vs. State of Haryana, AIR 1974 SC 294 and it has
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been frequently quoted. That facts will be only applicable after full
fledged trial in the parent case. Here there is no such full trial.
More over, quashment was made only on the basis of the materials
that have been collected during the course of investigation against
the co-accused. But however, as mentioned above, when the
matter was taken up for hearing, the petition filed by the petitioner
was withdrawn, of course without any liberty. No new ground has
been set out by the petitioner in this petition. So this argument
cannot be accepted and it has been rejected.
14.The next contention put forth on the part of the petitioner
is that originally stay has been granted by this court in
Crl.MP(MD)No.1764 of 2019, but thereafter, it was not extended,
due to non-listing of the case. The trial court commenced the trial
only because of the non- extension of stay order. But whatever may
be reason, now the trial has commenced. Even on merits, I am of
the considered view that it is not a fit case to quash the
proceedings as against this petitioner.
15.The next point that has been urged by the petitioner is
that the order that has been passed by the Judicial Magistrate No.
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1, Tirunelveli in CMP No.6621 of 2012 is not valid under law and as
observed above total non-application of mind, since the guidelines
that have been issued by the Hon'ble Supreme Court in Anil
Kumar and others Vs. M.K.Aiyappa and another
[2013(10)SCC 705] has not been followed. But that order cannot
be challenged by the petitioner belatedly. The petitioner ought to
have moved this court even at the initial stage of registering the
FIR. In fact, he has moved as mentioned above by way of filing
Crl.OP(MD)No.12837 of 2013, but failed to canvass this point and
instead chosen to withdraw the same. So the petitioner cannot be
permitted to make the ground in a piecemeal manner. So all other
grounds that have been raised in this petition and the written
statement are purely a matter for trial.
16.It is true that the 2nd respondent is affected by Recurrent
Depressive Disorder with Psychotic Features. As mentioned above,
the 2nd respondent is suffering from such a nature of ailment, it is
the duty of the petitioner being the husband to be with her, see that
her ailment is cured by providing proper treatment, care and
comfort. But he chose to pronounce triple thalaq. So I am of the
considered view that it is not fit case to quash the proceedings.
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17.Since materials have been collected during the course of
investigation and the trial process has also commenced, I am of the
considered view that this is not a fit case to quash the proceedings.
So the petitioner has to be undergo the trial process.
18.In fine, this criminal original petition stands dismissed.
Since the matter is of the year 2013, there shall be a direction to
the trial Court to expedite the trial process and dispose of the same
purely on merits and in accordance with law, within a period of five
months from the date of receipt of a copy of this order.
Consequently, connected Miscellaneous Petitions are closed.
18.11.2021
Index:Yes/No
Internet:Yes/No
er
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.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
Crl.OP(MD)No.3165 of 2019
18.11.2021
https://www.mhc.tn.gov.in/judis
