Madras High Court
Velraj vs State Through on 28 April, 2022
Crl.O.P(MD)No.8155 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P(MD)No.8155 of 2022
Velraj ... Petitioner/Sole Accused
Vs.
1.State through
The Inspector of Police,
Vasudevanallur Police Station,
Vasudevanallur,
Tenkasi District.
(Cr.No.85 of 2021) ...1st Respondent/Complainant
2.Ganapathyammal ...2nd Respondent/Defacto Complainant
Prayer: Criminal Original Petition is filed under Section 482 Cr.P.C., to call for
the records and quash the proceedings of the charge sheet in Special Case No.
124 of 2021 on the file of Special Court for POCSO Cases, Tirunelveli District
and quash the same.
For Petitioner : Mr.K.Prabhu
For Respondents : Mr.R.M.Anbunithi
Additional Public Prosecutor for R1
ORDER
This petition has been filed to quash the proceedings in Spl.S.C.No.124
of 2021 on the file of the Special Court for POCSO Cases, Tirunelveli District.
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Crl.O.P(MD)No.8155 of 2022
2.Though the petitioner and the victim's mother namely the second
respondent entered into compromise, the victim girl is aged only 9 years old,
therefore, this Court is not inclined to quash the petition on compromise.
3. The case of the prosecution is that the daughter of the defacto
complainant, namely Ishwarya, who is nine years old, is studying 4th standard.
On 02.04.2021 while the daughter of the defacto complainant was playing in
the street near the house of the petitioner, the petitioner called her to his house
stating that he will show fish tank in his house. When the daughter of the
defacto complainant refused, the petitioner forcibly closed her mouth and lifted
her and took her to his house. At that time the petitioner received a call and
while speaking on phone, the daughter of the de facto complainant ran away
from the house and came her house and informed about the same to her mother,
who is the defacto complainant herein. Thereafter, the defacto complainant
preferred a complaint to the respondent police. The respondent police has
registered the case as against the petitioner.
4. The learned Counsel appearing for the petitioner would submit that the
petitioner is an innocent and he has not committed any offence as alleged by the
prosecution. Without any base, the first respondent police registered a case in
Crime No.85 of 2021 for the offences under Section 8 r/w 7 of Protection of
Children from Sexual Offences Act, 2012, as against the petitioner and the
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Crl.O.P(MD)No.8155 of 2022
same has been taken cognizance in Spl.S.C.No.124 of 2021 on the file of the
Special Court for POCSO Cases, Tirunelveli District. Hence he prayed to quash
the same.
5.The learned Additional Public Prosecutor would submit that the trial
has been commenced and some of the witnesses have been examined in this
case.
6. Heard both sides and perused the materials available on record.
7. 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
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Crl.O.P(MD)No.8155 of 2022
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.
8. 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
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Crl.O.P(MD)No.8155 of 2022
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.”
9. 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.
..............
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Crl.O.P(MD)No.8155 of 2022
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.
10. In view of the above discussion, this Court is not inclined to quash
the proceedings in Special Case No.124 of 2021 on the file of Special Court for
POCSO Cases, Tirunelveli District.
11. Accordingly, this Criminal Original Petition is dismissed. However,
the petitioner is at liberty to file a fresh quash petition on the ground of joint
compromise memo.
28.04.2022
Index : Yes / No
Internet : Yes/ No
vsd
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Crl.O.P(MD)No.8155 of 2022
To
1.The Special Court for POCSO Cases,
Tirunelveli District.
2.The Inspector of Police,
Vasudevanallur Police Station,
Vasudevanallur,
Tenkasi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P(MD)No.8155 of 2022
G.K.ILANTHIRAIYAN, J.
vsd
Crl.O.P(MD)No.8155 of 2022
28.04.2022
https://www.mhc.tn.gov.in/judis
