Madras High Court

G.Senthil Kumerasan vs State Rep By on 4 August, 2022

                                                                               Crl.OP.No.5522 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 04.08.2022

                                                       CORAM:


                             THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                               CRL.O.P.No.5522 of 2021
                                          and Crl.MP.Nos.3555 & 3556 of 2021
                G.Senthil Kumerasan                                          ... Petitioner
                                                          Vs.
                1.State rep by
                  The Inspector of Police,
                  All Women Police Station,
                  Villianur,
                  Puducherry
                2.A.Renuga                                             ... Respondents
                PRAYER: Criminal Original petition is filed under Section 482 of Criminal
                Procedure Code, to call for the records of CC.No.471 of 2019 pending on the
                file of the learned Chief Judicial Magistrate of Puducherry and quash the same
                against the petitioner.
                                   For Petitioner  : M/s.Inthu Karunakaran
                                   For Respondents
                                         For R1    : Mr.V.Balamurugane,
                                                     Public Prosecutor (Puducherry)
                                         For R2    : Mr.N.Manokaran

                                                      ORDER

This Criminal Original Petition has been filed to quash the

proceedings in CC.No.471 of 2019 pending on the file of the learned Chief

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

Crl.OP.No.5522 of 2021

Judicial Magistrate of Puducherry taken cognizance for the offences under

Sections 498A, 377 r/w 34, 354-A(3) of IPC and Section 4 of Dowry

Prohibition Act, 1961 in crime No.3 of 2018 on the file of the first respondent /

police , as against the petitioner.

2. Based on the complaint dated 08.05.2018 of the second

respondent, FIR in crime No.3 of 2018 was registered by the first respondent

against the petitioner and his family members. Thereafter, on 20.03.2019, a

final report had been filed before the learned Chief Judicial Magistrate,

Puducherry under Sections 498A, 377 r/w 34 of IPC and Section 4 of Dowry

Prohibition Act, 1961 and the learned Chief Judicial Magistrate Court,

Pondicherry took cognizance of the same in CC.No.471 of 2019.

3. The petitioner has been charged for the offence under Sections

498A, 377 r/w 34 of IPC and Section 4 of Dowry Prohibition Act, 1961, since

immediately after the defacto complainant's marriage from 08.06.2017, all the

accused persons joined together with common intention and the first accused

started to have unnatural sex with the defacto complainant and subjected her

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

Crl.OP.No.5522 of 2021

under cruelty by harassing her by demanding dowry in the form of immovable

property and cash.

4. The learned counsel for the petitioner would submit that the

petitioner got married the second respondent on 08.06.2017. After marriage, he

came to understand about her first marriage and she got divorced. The

petitioner had no physical relationship with the second respondent and their

marriage itself remained as a non consummated marriage. Immediately, the

petitioner got separated from the second respondent. Therefore, the petitioner

filed petition for declaration that their marriage as null and void in

HMOP.No.64 of 2018. Immediately on receipt of the summons from the Family

Court, the second respondent lodged complaint on 23.09.2017 with false

allegations. On the said complaint, the Dowry Prohibition Officer was

appointed and he had conducted enquiry. He submitted detailed report dated

20.11.2017 to the Deputy Director cum Dowry Prohibition Officer. In the said

report, it seems to be no dowry demand or dowry harassment from the family

members of the petitioner herein. Based on the said report, complaint laid by

the second respondent was closed. Again, the second resondent with malafide

intention to harass the petitioner as well as the entire family members of the

petitioner, lodged complaint before the Police Complaint Authority,

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

Crl.OP.No.5522 of 2021

Puducherry. The Police Complaint Authority directed the first respondent to

respondent registered FIR in crime No.3 of 2018 for the offence under Sections

498A, 377 of IPC r/w 34 of IPC and Section 4 of Dowry Prohibition Act. The

second respondent also filed complaint under the Domestic Violence Act in

DVC.No.8 of 2018. The other family members of the petitioner filed quash

petition before this Court in Crl.OP.No.22917 of 2018 to quash the complaint

lodged under the Domestic Violence Act and the same was allowed by this

Court by order dated 14.03.2019. Thereafter, the second Protection Officer also

enquired the complaint levelled as against the petitioner and as per the report

dated 08.05.2018, the trial court i.e. Judicial Magistrate-III, Pondicherry

dismissed the domestic violence complaint by order dated 21.09.2020. The trial

court concluded that there was absolutely no dowry harassment by the

petitioner or his family members. In the meanwhile, the first respondent

completed investigation and filed final report and the same has been taken

cognizance in CC.No.471 of 2019 on the file of the Chief Judicial Magistrate,

Puducherry.

4.1. The learned counsel for the petitioner would further submit that

the charge under Section 377 of IPC is untenable when the marriage itself is a

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

Crl.OP.No.5522 of 2021

non consummated marriage and admittedly, they lived together only for three

days in her parents' house. Therefore, there was no possibility of having a non

consensual sexual acts against the second respondent herein. During the first

marriage of the second respondent, the second repsondent made similar

complaint as against the first husband and his family members. However, on

receipt of the monetary compensation to the tune of Rs.8,50,000/-, the second

respondent amicably settled the issue. Suppressing the said fact, the second

respondent married the petitioner herein. She further submitted that charge

under Section 354-A(3) of IPC is untenable since to corroborate the evidence of

the second respondent, no other material to show that the charge under Section

354-A(3) is sustainable as against the petitioner herein. In fact, the other

accused persons i.e. family members filed quash petition before this Court in

Crl.OP.No.34735 of 2019 and the same was allowed by this Court dated

22.02.2021 and quash the entire criminal proceedings as against the other

accused persons. She further pointed out that this Court while allowing the

petition, recorded that the second respondent lived only for seven days with the

petitioner. There was no domestic violence committed as against the second

respondent and there was no dowry harassment as against the second

respondent. The said findings of the trial court in the domestic violence

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

Crl.OP.No.5522 of 2021

complaint have lot of significance since it is based on the appreciation of

evidence recorded by the concerned court. Further observed that the second

respondent has the proclivity to give complaints making serious allegations. It

is quite hard for this Court to take it as a mere coincidence when the second

respondent is making allegations of unnatural sex both against the first husband

as well as the second husband i.e. the petitioner herein. When both of them

have hardly lived together, the allegations made by the second respondent

against the petitioner regarding dowry demand clearly looks inherently

improbable. Therefore, the entire criminal proceedings are nothing but clear

abuse of process of law and so far the petitioner is facing so many cases filed

by the second respondent. The marriage itself was not a consummated and as

such, the entire allegaions are completely false and entire proceedings is liable

to be quashed.

5. Per contra, the learned counsel for the second respondent would

submit that the petitioner approached this Court with unclean hands since

already the petitioner filed discharge petition before the trial court and it is

pending. While pending the discharge petition, again the petitioner approached

this Court to quash the entire proceedings. He also read the statement recorded

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

Crl.OP.No.5522 of 2021

under Section 161 of Cr.P.C. of the victim. Therefore, all the charges levelled

against the petitioner are clearly made out and the grounds raised by the

petitioner can be considered only before the trial court during the trial. Since all

the grounds raised by the petitioner are mixed questions of facts and it cannot

be considered by this Court in the quash petition.

6. The learned Public Prosecutor (Puducherry) submitted that on the

complaint lodged by the second respondent, FIR was registered in crime No.3

of 2018 for the offence under Sections 498A, 377 r/w 34 of IPC and Section 4

of Dowry Prohibition Act, 1961. After completion of investigation, the first

respondent filed final report. The same has been taken cognizance in

CC.No.471 of 2019 on the file of the Chief Judicial Magistrate, Puducherry for

the offences under Sections 498A, 377 r/w 34, 354-A(3) of IPC and Section 4

of Dowry Prohibition Act, 1961 and now it is pending for trial. There are

evidences and materials to attract the offence under Sections 498A, 377 r/w 34,

354-A(3) of IPC and Section 4 of Dowry Prohibition Act, 1961 as against the

petitioner. He further submitted that all the allegations are very serious in

nature and as such, he prayed for dismissal of the quash petition.

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

Crl.OP.No.5522 of 2021

7. Heard, M/s.Inthu Karunakaran, the learned counsel for the

petitioner, Mr.V.Balamurugane, Public Prosecutor (Puducherry) appearing for

the first respondent and Mr.N.Manokaran, the learned counsel appearing for the

second respondent.

8. Initially there are totally five accused, in which the petitioner is

arrayed as first accused. Already A2 to A5 filed quash petition before this

Court in Crl.OP.No.34735 of 2019 and the same was allowed by this Court by

order dated 22.02.2021. Though this Court recorded that there was no dowry

harassment by the accused persons and the same allegations made as against the

first accused. On perusal of the statement recorded under Section 161 of

Cr.P.C.revealed that there are so many allegations as against the petitioner to

attract offence under Sections 377 and 354-A(3) of IPC. That apart, though the

second respondent lived with the petitioner only for seven days, it does not

mean that there was no sexual harassment by the petitioner. On perusal of the

statement, to attract the offences under Sections 498A, 377 and 354-A(3) of

IPC, there are averments as against the petitioner. In fact, the petitioner filed

divorce petition to declare the marriage as null and void on the ground that the

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

Crl.OP.No.5522 of 2021

marriage itself is not consummated between the petitioner and the second

respondent. Subsequently it was dismissed as withdrawn. That apart, the

grounds raised by the petitioners are mixed question of facts and it cannot be

gone into by this Court in the quash petition under Section 482 of Cr.P.C.

Further, the petitioner also filed petition for discharge before the trial court.

9. The learned counsel for the petitioner vehemently contended that

only on the complaint of the Police Complaint Authority, the first respondent

registered the case. On perusal of the Protection Officer's report, there was no

dowry demand and dowry harassment by the petitioner or family members. In

fact, the Police Complaint Authority has no jurisdiction to give any direction to

the police to register any FIR. The present proceedings is nothing but counter

blast to the divorce petition filed by the petitioner as the marriage itself is not

consummated and to be declared as null and void.

10. Whereas on perusal of the FIR as well as the Statement recorded

under Section 161(3) Cr.P.C. revealed that there are allegations in FIR as well

as the Statement to attract the offences under Sections 377 and 354-A(3) of

IPC. That apart, the report submitted by the Protection Officer is only in respect

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

Crl.OP.No.5522 of 2021

of demanding of dowry. On the strength of the report submitted by the

Protection Officer, the trial court dismissed the complaint filed under Domestic

Violence Act. Insofar as the present proceedings is concerned, the petitioner is

charged for the offences under Sections 498A, 377 r/w 34, 354-A(3) of IPC and

Section 4 of Dowry Prohibition Act, 1961. Therefore, those reports would not

be helpful to the petitioner to get out of the charges levelled against him.

11. In this regard, the learned counsel for the second respondent relied

upon the judgment in the case of Kaptan Singh Vs. State of Uttar Pradesh and

Others reported in (2021) 9 SCC 35, wherein it is held as follows:

From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence

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

Crl.OP.No.5522 of 2021

collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

12. It is this regard, it is also relevant to rely upon the judgment of the

Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated

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

Crl.OP.No.5522 of 2021

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 original file for being proceeded with on merits in accordance with law.

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

Crl.OP.No.5522 of 2021

13. 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, 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.”

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

Crl.OP.No.5522 of 2021

14. 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...................."

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

Crl.OP.No.5522 of 2021

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.

15. In view of the above discussion, this Court is not inclined to quash

the proceedings in CC.No.471 of 2019 pending on the file of the learned Chief

Judicial Magistrate of Puducherry. The petitioner is at liberty to raise all the

grounds before the trial Court. Further, 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