Madras High Court
Selvi vs State Represented By Its on 29 June, 2022
Crl.O.P.No.17859 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.06.2022
CORAM
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.17859 of 2020
and
Crl.M.P.Nos.6947 and 6948 of 2020
Selvi ... Petitioner
Vs.
1.State represented by its
Inspector of Police,
Velipalyam Police Station,
Nagapattinam.
2.V.Mathiyazhagan ... Respondents
Prayer: Criminal Original Petition filed under section 482 of Criminal
Procedure Code, to call for the records relating to STC.No.290 of 2018
dated 29.08.2018 on the file of the learned Judicial Magistrate-II,
Nagapattinam and quash the same.
For Petitioner : Mr.S.Arivazhagan
For R1 : Mr.A.Gopinath
Government Advocate (Crl.Side)
For R2 : Mr.S.Nedunchezhiyan
https://www.mhc.tn.gov.in/judis
1/8
Crl.O.P.No.17859 of 2020
ORDER
This petition has been filed to quash the charge sheet in
S.T.C.No.290 of 2018 on the file of the learned Judicial Magistrate-II,
Nagapattinam for the alleged offence under Sections 294(b), 352 of IPC
in Crime No.56 of 2017, as against the petitioner.
2. The learned counsel for the petitioner would submit that the
defacto complainant is an advocate who was appeared on behalf of the
petitioner's husband in the maintenance case in M.C.No.1 of 2012 on the
file of Judicial Magistrate-II, Nagapattinam. When the maintenance case
was posted, the petitioner sought for time to file a counter due to which,
the defacto complainant had grudge over the petitioner and foisted a false
case as against the petitioner. Whereas, the maintenance case was not
listed on 13.02.2017. Therefore, no occurrence was happened on that
day. Therefore, the present case has been foisted as against the petitioner
by the counsel on record appeared on behalf of the petitioner's husband.
3. A perusal of records revealed that a charge itself is that when
the defacto complainant entered into the Court complex, the petitioner
scolded him with filthy languages and also pulled him. It is not the case
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Crl.O.P.No.17859 of 2020
of the prosecution, that on the date of hearing the occurrence had taken
place. A perusal of statement of the witnesses and charges revealed that
there are specific allegations as against the petitioner. Further, the
grounds raised by the petitioner are question of fact and it cannot be
considered in the quash. All the grounds raised by the petitioner can be
considered only by laying evidence before the Trial Court.
4. 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
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Crl.O.P.No.17859 of 2020
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.
5. 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.
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Crl.O.P.No.17859 of 2020
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.”
6. 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
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Crl.O.P.No.17859 of 2020
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.No.17859 of 2020
7. In view of the above discussion, this Court is not inclined to
quash the charge sheet in STC.No.290 of 2018 on the file of the learned
Judicial Magistrate II, Nagapattinam. The petitioner is at liberty to raise
all the grounds before the trial Court. The personal appearance of the
petitioner is dispensed with and she 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.
8. Accordingly, this criminal original petition is dismissed.
Consequently, connected miscellaneous petitions are closed.
29.06.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
cda/mn
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.17859 of 2020
G.K.ILANTHIRAIYAN, J.
mn
To
1. The Judicial Magistrate-II, Nagapattinam.
2. The Inspector of Police,
Velipalyam Police Station,
Nagapattinam.
3. The Public Prosecutor,
High Court, Madras.
Crl.O.P.No.17859 of 2020
and
Crl.M.P.Nos.6947 and 6948 of 2020
29.06.2022
https://www.mhc.tn.gov.in/judis
