Madras High Court
C.Nepoleon vs The State Represented By on 12 April, 2022
Crl.O.P.(MD)No.13832 of 2020
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 12.04.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.13832 of 2020
and
Crl.M.P(MD)No.6340 of 2020
C.Nepoleon ... Petitioner/Accused No.1
Vs.
1.The State represented by,
The Inspector of Police,
South Police Station
Tuticorin,
Tuticorin District. ... 1st Respondent/Complainant
2.Jeyasankar ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records relating to C.C.No.284 of 2017 pending on the
file of the learned Judicial Magistrate, Srivaikundam and quash the
same as against the petitioner.
For Petitioner : Mr.K.Samidurai
For R – 1 : Mr.B.Thanga Aravindh
Government Advocate (Crl. Side)
For R – 2 : No appearance
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Crl.O.P.(MD)No.13832 of 2020
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.284 of 2017 on the file of the learned Judicial
Magistrate, Srivaikundam, as against the petitioner.
2. The second respondent lodged a complaint alleging that on
19.03.2011, he along with his wife went to Tirunelveli for attending
the marriage function and returned on the next day morning at
about 08.00 a.m and he found that his house was break opened by
some unknown persons and 51 sovereigns of gold jewels and a sum
of Rs.10,000/- were stolen. On the basis of the complaint, the first
respondent registered a case in Crime No.234 of 2011 for the
offences under Sections 457 and 380 of I.P.C. As per the confession
statement of the petitioner, the petitioner and his father were
arraigned as accused in the said criminal case. On the basis of the
final report filed by the first respondent, the same has been taken
cognizance in C.C.No.284 of 2017 on the file of the learned Judicial
Magistrate, Srivaikundam for the offences under Sections 457, 380
and 414 of I.P.C.
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Crl.O.P.(MD)No.13832 of 2020
3. The learned Government Advocate (Criminal Side)
appearing for the first respondent would submit that the trial has
been commenced and some of the witnesses have been examined
in this case.
4. Heard the learned counsel appearing for the petitioner
and the learned Government Advocate (Criminal Side) appearing for
the first 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., wherein the Honourable Supreme Court of India has
held 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
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Crl.O.P.(MD)No.13832 of 2020
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 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
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Crl.O.P.(MD)No.13832 of 2020
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, wherein the Honourable
Supreme Court of India has held 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
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Crl.O.P.(MD)No.13832 of 2020
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.
8. In view of the above discussion, this Court is not inclined to
quash the proceedings in C.C.No.284 of 2017 pending on the file of
the learned Judicial Magistrate, Srivaikundam. The petitioner is at
liberty to raise all the grounds before the trial Court. The trial Court
is directed to complete the trial within a period of six months from
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Crl.O.P.(MD)No.13832 of 2020
the date of receipt of copy of this order.
9. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed.
12.04.2022
Internet :Yes
Index :Yes / No
ps
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,
Srivaikundam.
2.The Inspector of Police,
South Police Station
Tuticorin,
Tuticorin District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.13832 of 2020
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.O.P(MD)No.13832 of 2020
12.04.2022
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