Madras High Court
Sakila vs The Superintendent Of Police on 12 April, 2022
Crl.O.P(MD)No.11589 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.04.2022
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.11589 of 2021
and
Crl.M.P(MD)No.5916 of 2021
Sakila ...Petitioner
Vs.
1.The Superintendent of Police,
Kanyakumari District,
Nagercoil.
2.The Inspector of Police,
Vadseri Police Station,
Kanyakumari District.
(Crime No.41 of 2019)
3.Rajeswaran ...Respondent
Prayer: This Criminal Original Petition is filed under Section 482 of
Cr.P.C., to call for the records from the learned Judicial Magistrate No.II,
Nagercoil in C.C.No.445/2019 and quash the same as it has no prima
facie case against the petitioners.
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Crl.O.P(MD)No.11589 of 2021
For Petitioner : Mr.M.Maria Vinola
For R1 and R2 : Mr.K.Sanjai Gandhi
Government Advocate (Crl.Side)
For R3 : Mr.M.Kannan
ORDER
This petition has been filed to quash the proceedings in C.C.No.
445/2019 on the file of the learned Judicial Magistrate No.II, Nagercoil,
thereby taken cognizance for the offences under Sections 294(b), 427,
447 and 506(1) of IPC in Crime No.41/2019, as against the petitioner.
2.The case of the prosecution the petitioner along with her
husband trespassed into the third respondent's land and further gave life
threat to the defacto complainant. Therefore, on the complaint lodged by
the defacto complainant, the respondent police had registered a case in
Crime No.41/2019 for the offences under Sections 294(b), 427, 447 and
506(1) of IPC.
3.The learned Counsel appearing for the petitioner would submit
that the petitioner is innocent and he had not committed any offence as
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Crl.O.P(MD)No.11589 of 2021
alleged by the prosecution. Without any base, the first respondent police
registered a case in Crime No.41/2019 for the offences under Sections
294(b), 427, 447 and 506(1) of IPC as against the petitioner and the same
has been taken cognizance in C.C.No.445/2019 on the file of the learned
Judicial Magistrate No.II, Nagercoil. Hence he prayed to quash the same.
4.The learned Government Advocate(Crl.Side) would submit that
the trial has been commenced and some of the witnesses have been
examined in this case.
5.Heard both sides and perused the materials available on record.
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,
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Crl.O.P(MD)No.11589 of 2021
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 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
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Crl.O.P(MD)No.11589 of 2021
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 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
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Crl.O.P(MD)No.11589 of 2021
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...................."
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.
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Crl.O.P(MD)No.11589 of 2021
9.In view of the above discussion, this Court is not inclined to
quash the proceedings in C.C.No.445/2019 on the file of the learned
Judicial Magistrate No.II, Nagercoil. The petitioner is at liberty to raise
all the grounds before the trial Court. Considering the age of the
petitioner, the personal appearance of the petitioner is dispensed with and
he shall be represented by a counsel after filing appropriate application.
However, the petitioner 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 three months from the date of
receipt of a copy of this Order.
10.Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petition is also closed.
12.04.2022
Index :Yes/No
Internet : Yes/No
lr
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Crl.O.P(MD)No.11589 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 No.II, Nagercoil
2.The Superintendent of Police,
Kanyakumari District,
Nagercoil.
3.The Inspector of Police,
Vadseri Police Station,
Kanyakumari District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P(MD)No.11589 of 2021
G.K.ILANTHIRAIYAN, J.
lr
Crl.O.P(MD)No.11589 of 2021
12.04.2022
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