Madras High Court

C.Sivakumar vs Inspector Of Police on 5 September, 2022

                                                                                  Crl.O.P.No.6654 of 2022


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED 05.09.2022

                                                           CORAM

                                  THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN

                                              Crl.O.P.No.6654 of 2022 and
                                                Crl.MP.No.3781 of 2022

                     C.Sivakumar                                                ... Petitioner

                                                             Vs

                     1. Inspector of Police,
                        Saidapet Police Station,
                       Chennai
                       (in crime No.1892 of 2017)

                     2.Deepa Oli                                         ... Respondents



                     PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C,
                     praying to call for the records in CC.No.1365 of 2020 pending on the file of
                     the learned IX Metropolitan Magistrate, Saidapet, Chennai and to quash the
                     same.

                                          For Petitioner     : Mr.K.G.Senthil Kumar

                                          For Respondents
                                                For R1       : Mr.E.Raj Thilak,
                                                               Additional Public Prosecutor

                     Page 1 of 10


https://www.mhc.tn.gov.in/judis
                                                                                    Crl.O.P.No.6654 of 2022




                                                   For R2       : Mr.S.Shujath Hussain

                                                          ORDER

This petition has been filed to quash the proceedings in

CC.No.1365 of 2020 on the file of the learned IX Metropolitan Magistrate,

Saidapet, Chennai, thereby taken cognizance for the offences under Sections

147, 323 & 420 of IPC, in Crime No.1892 of 2017, as against this petitioner.

2. The case of the prosecution is that the defacto complainant had

earlier married the petitioner and the complainant suspected the petitioner of

having illicit relationship with another woman. While being so, she lodged

complaint on 28.04.2017 alleging that the petitioner and other accused

persons trespassed the house of the complainant on 27.04.2017 at around

8.00 p.m. and assaulted the complainant.

3. The learned counsel for the petitioner would submit that there

was a family dispute between the petitioner and the second respondent. They

also filed petition for divorce by mutual consent in Crl.OP.No.2149 of 2017.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6654 of 2022

4. The learned Additional Public Prosecutor would submit that the

trial has been commenced and some of the witnesses have been examined in

this case.

5. Heard, the learned counsel appearing for the petitioner, the

learned Additional Public Prosecutor appearing for the first respondent and

the learned counsel for the second respondent.

6. It is seen that after filing divorce petition, the occurrence took

place and the said petition ended in vain. After completion of investigation,

the first respondent filed final report and the same has been taken cognizance

in CC.No.1365 of 2020 on the file of the IX Metropolitan Magistrate,

Saidapet, Chennai. It is also seen that there are specific allegations to attract

offence under Sections 147, 323 & 420 of IPC as against the petitioner.

Therefore, there is absolutely no ground to be considered, since there are

specific materials to attract offence under Sections 147, 323 & 420 of IPC as

against the petitioner. It is relevant to rely upon the judgment of the Hon'ble

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6654 of 2022

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., 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.O.P.No.6654 of 2022

7. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6654 of 2022

completely incorrect and uncalled for.”

8. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6654 of 2022

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.

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

quash the proceedings in C.C.No.1365 of 2020 in Crime No.1892 of 2017 on

the file of the learned IX Metropolitan Magistrate, Saidapet, Chennai. The

petitioner is at liberty to raise all the grounds before the trial Court. The trial

Court is directed to complete the trial within a period of six months from the

date of receipt of copy of this Order.

10. Accordingly, this criminal original petition is dismissed.

Consequently, connected miscellaneous petition is closed.

05.09.2022

https://www.mhc.tn.gov.in/judis Crl.O.P.No.6654 of 2022