Madras High Court

V.Joseph Augustine vs State Rep. By on 12 April, 2022

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.6802 of 2022
and
Crl.M.P(MD) Nos.4704 and 4706 of 2022

1. V.Joseph Augustine
2. M.Lourdes Mary ...Petitioners

Vs.
1. State Rep. by
The Inspector of Police,
All Women Police Station
Nagercoil, Kanyakumari District

2. Jaya Priya ...Respondents

PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to
call for the records in CC No. 24 of 2021 on the file of the Additional Mahila
Court(Magisterial Level) Nagercoil and to quash the same in so far as the
petitioners concerned.

For Petitioners : Mr.R.J.Karthick
For Respondents : Mr.R.M.Anbunithi
No.1 Additional Public Prosecutor

ORDER

The Criminal Original Petition has been filed to quash the proceedings

in CC No. 24 of 2021 on the file of the Additional Mahila Court(Magisterial

Level) Nagercoil https://www.mhc.tn.gov.in/judis

2. The case of the prosecution is that the petitioners/accused

approached the parents of the complainant to arrange marriage for their

younger son namely the first accused. Further they have also demanded

Rs.10 lakhs cash, Rs.15 lakhs worth car, 200 sovereigns of gold jewels, Rs. 5

lakh worth household articles as dowry. On 08.07.2013 engagement was

performed at her parents house and at that time Rs.7,00,000/- cash was

handed over to the petitioners. For obtaining job to the first accused, the

defacto complainant father provided financial assistance and arranged jon in

Saudi Arabia within three months. It is also alleged that the first accused

used to disclose the sexual affairs in the matrimonial life with the in-laws.

Even after repeated request made by her, the first accused did not heed to

her request. They also insisted the complainant to transfer all the properties

of her parents in her name. In the meanwhile on 04.07.2014 a boy child was

born and she took the child to Saudhi Arabia where the first accused was

working and thereafter when she visited India to take treatment for the child

the accused 2 to 5 demanded additional dowry. Thereafter it is alleged that to

purchase a house property at Ponnappa Nadar Colony and they have

demanded Rs.30 lakhs as dowry. In turn the complainant's parents

transferred Rs.30 lakhs to the credit of the first accused. With the money

provided, the first accused purchased a dwelling house and Rs.5 lakhs worth

household articles and at the influence of the father of the defacto https://www.mhc.tn.gov.in/judis

complainant he was offered a job with salary of Rs. 5 lakhs. Thereafter the

accused 2 to 5 have planned for divorce the complainant and arranged

another marriage with several crores of dowry. In the mean while the defacto

complainant conceived on four occasions and two times it ended in abortion.

When the fourth accused came to India, she insisted the first accused to get

the property or leave the complainant in her parent's house, hence the first

accused has left the defacto complainant in her parents house and she did not

go to the house of the accused persons. At this point of time another sum of

Rs.50,00,000/- had been demanded to settle the loan or they will sell the

property. Accepting the demand, Rs.95 lakhs was transferred by her father

and the sale deed was executed in her father's name, but the accused

persons did not accept the same and after several mediation accused persons

permitted the complainant to reside in a room but no food has been provided

and on 22.08.2019 her son was assaulted first accused which made the child

get fainted. During the month of March 2020 they have driven the

complainant and the child out of the home, hence the present case came to

be 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.

https://www.mhc.tn.gov.in/judis

4. The learned Additional Public Prosecutor 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 on either sides.

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., wherein it is

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 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 https://www.mhc.tn.gov.in/judis

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 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

https://www.mhc.tn.gov.in/judis

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...................."

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.

https://www.mhc.tn.gov.in/judis

` 9. In view of the above discussion, this Court is not inclined to

quash the proceedings in CC No. 24 of 2021 on the file of the Additional

Mahila Court(Magisterial Level) Nagercoil. The petitioners are at liberty to

raise all the grounds before the trial Court. However, the personal

appearance of the petitioners are 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