Madras High Court
P.Thirumani vs The State Represented By on 31 March, 2022
Crl.O.P.(MD)No.15631 of 2020
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 31.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.15631 of 2020
and
Crl.M.P(MD)Nos.7654 & 7656 of 2020
P.Thirumani ... Petitioner/Accused
Vs.
1.The State represented by,
The Inspector of Police,
Thoothukudi North Police Station,
Thoothukudi,
Thoothukudi District.
(Crime No.395 of 2019). ... 1st Respondent/Complainant
2.Jothikumar,
District Child Welfare Officer,
District Child Welfare Trust,
Thoothukudi. ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records relating to the charge sheet in Special S.C.No.22
of 2020 on the file of the learned Sessions Judge, the Special Court
for Exclusive Trial of Cases under POCSO Act, Thoothukudi and
quash the same as illegal.
For Petitioner : Mr.R.R.Kannan
For R – 1 : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
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Crl.O.P.(MD)No.15631 of 2020
ORDER
This petition has been filed to quash the proceedings in
Special S.C.No.22 of 2020 on the file of the learned Sessions Judge,
the Special Court for Exclusive Trial of Cases under POCSO Act,
Thoothukudi, as against the petitioner.
2. The case of the prosecution is that the petitioner was
working as Physics Teacher in Caldwell Higher Secondary School and
the victim boy alleged that the petitioner had kissed and touched
the body of the victim and advanced sexual harassment from July
2019 to September, 2019. Hence, he has made a complaint in
Childline on 21.09.2019. Pursuant to that, the District Child Welfare
Trust Employees have enquired the victim and pursuant to that, the
District Child Welfare Officer lodged the complaint to the first
respondent. Based on the said complaint, F.IR has been registered
as against the petitioner in Crime No.395 of 2019 for the offences
under Sections 9 (f) r/w Section 10 of the POCSO Act, 2012 and the
same has been taken cognizance in Spl.S.C.No.22 of 2020 on the
file of the learned Sessions Judge, the Special Court for Exclusive
Trial of Cases under POCSO Act, Thoothukudi.
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Crl.O.P.(MD)No.15631 of 2020
3. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Criminal Side) appearing for the
first respondent and perused the materials available on record.
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 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.
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Crl.O.P.(MD)No.15631 of 2020
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. 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
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Crl.O.P.(MD)No.15631 of 2020
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 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.15631 of 2020
..............
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.
7. In view of the above discussion, this Court is not inclined to
quash the proceedings in Special S.C.No.22 of 2020 on the file of
the learned Sessions Judge, the Special Court for Exclusive Trial of
Cases under POCSO Act, Thoothukudi. The petitioner is at liberty to
raise all the grounds before the trial Court. Considering the facts
and circumstances of the case, 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 Section 313 Cr.P.C. and at the
time of passing judgment. The trial Court is directed to complete the
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Crl.O.P.(MD)No.15631 of 2020
trial within a period of three months from the date of receipt of copy
of this order.
8. Accordingly, this Criminal Original Petition is dismissed.
Consequently, connected Miscellaneous Petitions are closed.
31.03.2022
Internet :Yes
Index :Yes / No
ps
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.15631 of 2020
G.K.ILANTHIRAIYAN, J.
ps
To
1.The Sessions Judge,
The Special Court for Exclusive Trial of
Cases under POCSO Act,
Thoothukudi
2.The Inspector of Police,
Thoothukudi North Police Station,
Thoothukudi,
Thoothukudi District.
3. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Order made in
Crl.O.P(MD)No.15631 of 2020
31.03.2022
https://www.mhc.tn.gov.in/judis
