Madras High Court

Eswaran vs The State Rep. By on 14 June, 2022

                                                                                Crl.O.P.No.3685 of 2020


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 14.06.2022

                                                       CORAM

                                  THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN

                                                Crl.O.P.No.3685 of 2020
                                          and Crl.M.P.Nos.2139 & 2140 of 2020

                     1. Eswaran
                     2. E.Meenambal
                     3. E.Rajabalan
                     4. E.Balamurugan                                         ... Petitioners
                                                           Vs

                     1. The State rep. by
                        The Inspector of Police,
                        Thittakudi Police Station,
                        Cuddalore District,
                        Cuddalore
                        (Crime No.91 of 2018)

                     2. Sankar                                                ... Respondents

                     PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C,
                     praying to call for records in Spl.S.C.No.109 of 2019 pending on the file of
                     the learned District POCSO Judge, Cuddalore and quash the same.




                     Page 1 of 12


https://www.mhc.tn.gov.in/judis
                                                                                     Crl.O.P.No.3685 of 2020


                                       For Petitioners    : Mr.R.Thirumoorthy

                                       For Respondent     : Mr.A.Gopinath
                                                            Government Advocate (Crl. Side)

                                                            ORDER

This petition has been filed to quash the proceedings in

Spl.S.C.No.109 of 2019 on the file of the learned District POCSO Judge,

Cuddalore, thereby taken cognizance for the offences punishable under

Sections 294(b), 323, 324, 307 of IPC r/w 3(c) & 4 of POCSO Act, as

against the petitioners.

2. The case of the prosecution is that on 17.07.2018, at about 3.30

a.m., when the defacto complainant and his family members were sleeping

in their house, the first accused viz., the third petitioner herein touched the

defacto complainant's sister and fled away from the spot. Thereafter, on the

same day at about 6 a.m., the petitioners along with other accused went to

the defacto complainant house and assaulted him and his family members

with deadly weapons. Hence, the defacto complainant lodged complaint

before the respondent police and the same was registered in crime No.91 of

2018 for the offences under Sections 294(b), 323, 324, 307 of IPC r/w 3(c)

https://www.mhc.tn.gov.in/judis Crl.O.P.No.3685 of 2020

& 4 of POCSO Act. After completion of investigation, the respondent

police filed a final report before the learned District POCSO Judge,

Cuddalore, and the same was taken on file in Spl.S.C.No.109 of 2019.

3. The learned counsel appearing for the petitioner would submit

that the first accused has noting to do with the prosecution case and he has

been falsely implicated in this case. The first accused is working as second

grade teacher in the Government Middle School, Nedunkulam, Cuddalore

District. He further pointed out that the First Information Report does not

contain any allegation to attract the offence under Section POCSO Act,

whereas in the charge sheet that too after period of ten days, the victim girl

subsequently exaggerated to level the allegation for the offences punishable

under Sections 3(c) & 4 of the POCSO Act, as against the first accused

alone.

3.1. He further submitted that insofar as the other accused persons

are concerned, even according to the case of the prosecution, when the act

of the first accused was questioned by the victim family, they attacked them

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with deadly weapons and also scolded with filthy language. Therefore, it is

the second occurrence and it cannot be clubbed with first occurrence

allegedly taken place on 17.07.2018, at about 3.30 a.m. He further

submitted that on the same day, the first petitioner lodged complaint as

against the defacto complainant & others and the same was registered in

Crime No.90 of 2018 for the offences under Sections 341, 323, 324, 379 &

307 of IPC. Now it has been charge sheeted and the same has been taken on

file in S.C.No.30 of 2000 on the file of the Subordinate Court, Thirttakudi.

4. The learned Government Advocate (Crl. Side) submitted that it

is a case in counter and in both the cases investigation has been completed

and final report has been laid before the concerned Court below. Hence he

prayed for dismissal of this petition.

5. Heard Mr.R.Thirumoorthy, learned counsel appearing for

petitioners and Mr.A.Gopinath, learned Government Advocate (Crl. Side)

appearing for the respondent police.

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6. On perusal of charge sheet and the statement of the witnesses

revealed that there are specific allegations to constitute the offences under

Sections 294(b), 323, 324, 307 of IPC r/w 3(c) & 4 of POCSO Act, as

against the petitioners. That apart, the ground raised by the learned counsel

appearing for the petitioners are factual in nature and the disputed question

of facts and it cannot be considered before this Court under Section 482 of

Crl.P.C.

7. In this regard, 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

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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.

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

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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.”

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

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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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10. Further the counter complaint has also been charge sheeted and

the same has been taken on file in S.C.No.30 of 2020 before the learned

Subordinate Judge, Thittakudi. To avoid conflict of opinion, the case in

S.C.No.30 of 2020 on the file of the Subordinate Court, Tittakudi, is

withdrawn and transferred to the District Court, Special Court for POCSO

Act, Cuddalore District. The learned District Judge, Special Court for

POCSO Act, Cuddalore District, is directed to conduct joint trial along with

Spl.C.C.No.109 of 2019 on his file and dispose the same within a period of