Madras High Court
S.Venkatesh vs The State Represented By on 8 April, 2022
Crl.O.P.(MD)No.1701 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.1701 of 2021
and
Crl.M.P(MD)No.829 of 2021
1. S.Venkatesh
2. Mariammal
3. Dhanushkodi Durai
4. Vijayalakshmi ... Petitioners/
Accused
Vs.
1. The State represented by
The Inspector of Police,
All Women Police Station,
Valliyur,
Tirunelveli. ... 1st Respondent
2. Kavitha ... Defacto Complainant/
2nd Respondent
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to Call
for the records in C.C No. 15 of 2020 in Crime No. 1 of 2018 on the file of the
learned Judicial Magistrate Court, Valliyoor and quash the same.
For Petitioners : Mr.Raja Karthikeyan
For Respondents : Mr.K.Sanjai Gandhi
Government Advocate (Criminal Side)
for R.1
Mr.S.Muthu Malai Raja for R.2
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Crl.O.P.(MD)No.1701 of 2021
ORDER
This Criminal Original Petition has been filed to quash the C.C No. 15 of
2020 in Crime No. 1 of 2018 on the file of the learned Judicial Magistrate
Court, Valliyoor.
2. The case of the prosecution is that the second respondent / defacto
complainant is the wife of the petitioner. Their marriage was solemnized on
20.01.2010 at Valliyur. As a result of the wedlock, the second respondent gave
birth to one girl child. There were a misunderstanding between the petitioner
and his wife, which resulted in filing HMOP No.42 of 2014. Finally, a
compromise was entered between them. After that, on 05.12.2016, the
petitioner and his family members harassed the defacto complainant and
demanded more dowry. Hence, the present complaint has been registered.
3. The learned Counsel appearing for the petitioners would submit that
the petitioners are innocent and they have not committed any offence as alleged
by the prosecution. Without any base, the first respondent police registered a
case as against the petitioners and the same has been taken cognizance in
C.C No. 15 of 2020 on the file of the learned Judicial Magistrate Court,
Valliyoor. Hence, he prayed to quash the same.
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Crl.O.P.(MD)No.1701 of 2021
4. The learned Government Advocate (Criminal Side) would submit that
the trial has been commenced and some of the witnesses have been examined in
this case.
5. Heard the learned counsel appearing for the petitioners and the learned
Government Advocate (Criminal Side) appearing for the first respondent.
6. 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 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
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Crl.O.P.(MD)No.1701 of 2021
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.
7. 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 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
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Crl.O.P.(MD)No.1701 of 2021
completely incorrect and uncalled for.”
8. 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 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...................."
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Crl.O.P.(MD)No.1701 of 2021
The above judgments are squarely applicable to this case and as such, the
points raised by the petitioners cannot be considered by this Court under
Section 482 Cr.P.C.
9. In view of the above discussion, this Court is not inclined to quash the
proceedings in C.C No. 15 of 2020 in Crime No. 1 of 2018 on the file of the
learned Judicial Magistrate Court, Valliyoor. The petitioners are at liberty to
raise all the grounds before the trial Court. The personal appearance of the
petitioners is dispensed with and they shall be represented by a counsel after
filing appropriate application. However, the petitioners 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.
10. Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is closed.
08.04.2022
Index : Yes / No
Internet : Yes/ No
mga
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Crl.O.P.(MD)No.1701 of 2021
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 Judicial Magistrate Court,
Valliyoor.
2. The Inspector of Police,
All Women Police Station,
Valliyur,
Tirunelveli.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.1701 of 2021
G.K.ILANTHIRAIYAN, J.
mga
Crl.O.P(MD)No.1701 of 2021
and
Crl.M.P(MD)No.829 of 2021
08.04.2022
https://www.mhc.tn.gov.in/judis
