Madras High Court

Abdul Muthalif vs The Inspector Of Police on 6 September, 2022

                                                                              Crl.O.P.No.21224 of 2022

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED 06.09.2022

                                                        CORAM

                                  THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN

                                               Crl.O.P.No.21224 of 2022
                                                         and
                                               Crl.M.P.No.13825 of 2022

                     1. Abdul Muthalif
                     2. Rahila
                     3. Fursana
                     4. Rabic Raja                                            ... Petitioners

                                                            Vs
                     1. The Inspector of Police,
                        W2 All Women Police Station,
                        Anna Salai, Chennai – 600 002.

                     2. S.Beema Masleena                                      ... Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
                     praying to call for the records pertaining to the proceedings in C.C.No.3298
                     of 2015 on the file of the Chief Metropolitan Magistrate Court at Egmore,
                     Chennai and quash the same.

                                          For Petitioners   : Mr. A.K.M.Samsu Nihar

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

                     Page 1 of 10


https://www.mhc.tn.gov.in/judis
                                                                                   Crl.O.P.No.21224 of 2022

                                                            ORDER

This petition has been filed to quash the proceedings in C.C.No.3298

of 2015 on the file of the Chief Metropolitan Magistrate Court at Egmore,

Chennai, thereby taken cognizance for the offences under Sections 498(A)

and 106 IPC and Sections 4 & 6 of Dowry Prohibition Act, 1961, in Crime

No.4 of 2014 as against these petitioners.

2. The case of the prosecution is that the marriage between the

first accused/A.Faisal Ali and the second respondent/de-facto complainant

was solemnized on 04.04.2011 as per Islamic Rites and customs amidst the

family members of both the families. The Petitioners submit that at the time

of marriage, the first accused gave 5 grams of gold as Mehar and has not

obtained any dowry from the de-facto complainant. Further, the petitioners

submit that after the marriage, the matrimonial home was set up at the

residence of the first and second petitioners, where the second respondent

stayed only for 12 days. However, one Ramesh met the first accused and

told him about his relationship with the de-facto complainant and also stated

that the said Ramesh and the de-facto complainant have been living as

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21224 of 2022

husband and wife for the past three and half years and showed the pictures

of both them together and the de-facto complainant accepted the same and

confessed her love with the said Ramesh. It is further stated that the de-facto

complainant has not even lived in the matrimonial home for 12 full days,

wherein, after the said incident, the de-facto complainant called her parents

over phone and left to her paternal home. Thereafter, the first accused did

not want to force any relationship with the de-facto complainant and he

approached the Adam Jumma Pallivasal and sent a letter dated 12.05.2011

praying for dissolution of the marriage between them, and there was no

response. Further, the first accused once again sent a letter dated

30.05.2011, but even then there was no response. Hence, the complaint.

3. The learned Counsel appearing for the petitioners would

submit that the petitioners are innocent and they have not committed any

offence as alleged by the prosecution. Without any basis, the first

respondent police registered a case in Crime No.4 of 2014 for the offences

under Sections 498(A) and 106 IPC and Sections 4 & 6 of Dowry

Prohibition Act, 1961, as against the petitioners and the same has been

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21224 of 2022

taken cognizance in C.C.No.3298 of 2015 on the file of the Chief

Metropolitan Magistrate Court at Egmore, Chennai. Hence he prayed to

quash the same.

4. The learned Additional Public Prosecutor would submit that

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

this case.

5. Heard Mr. A.K.M.Samsu Nihar, learned counsel appearing for

the petitioners and Mr.E.Raj Thilak, learned Additional Public Prosecutor

appearing for the first respondent.

6. On the facts of the case, 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21224 of 2022

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.

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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21224 of 2022

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.”

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:

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"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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21224 of 2022

stage...................."

The above judgments are squarely applicable to this case and as such, the

points raised by the petitioners 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.3298 of 2015 in Crime No.4 of 2015 on the file

of the Chief Metropolitan Magistrate Court at Egmore, Chennai. The

petitioners are at liberty to raise all the grounds before the trial Court. The

personal appearance of the petitioners is dispensed with and they shall be

represented by a counsel after filing appropriate application. However, the

petitioners shall be present before the Court at the time of furnishing of