Madras High Court

Dhanam vs The State Rep By on 6 September, 2022

                                                                                Crl.O.P.No.21261 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.21261 of 2022
                                                         and
                                         Crl.M.P.Nos.13852 and 13853 of 2022

                     Dhanam                                                    ... Petitioner

                                                             Vs
                     1. The State Rep by,
                        The Inspector of Police,
                        Gengavalli Police Station,
                        Salem District.
                        Crime No.321 of 2020

                     2. Subiksha                                               ... Respondents

                     PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
                     praying to call for the records relating to Spl.S.C.No.196 of 2021 on the file
                     of POCSO Special Court, Salem and quash the same with regard to the
                     petitioner.

                                          For Petitioner     : Mr. T.Muruganantham

                                          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.21261 of 2022

                                                              ORDER

This petition has been filed to quash the proceedings in

Spl.S.C.No.196 of 2021 on the file of the POCSO Special Court, Salem,

thereby taken cognizance for the offences under Sections 9(1) and 10 of the

Protection of Child from Sexual Offences Act, 2012 and Sections 9 and 10

of the Prohibition of Child Marriage Act, 2006 and Section 494 of IPC in

Crime No.321 of 2020 as against these petitioner

2. The case of the prosecution is that the petitioner is arraigned as A8

in this case and on the basis of the complaint given by the second

respondent on 12.06.2020 before the first respondent, the first respondent

in turn registered a case in Crime No.321 of 2020 under Sections 9(1), 10 of

the Protection of Child from Sexual Offences Act, 2012 and Sections 9 and

10 of the Prohibition of Child Marriage Act, 2006 and Section 494 of IPC.

Further, according to the second respondent, the marriage between the first

accused and the second respondent's sister was fixed on 28.10.2018. Before

the marriage, the second respondent's sister was married to one Kabilan,

whom she fell in love. Since marriage arrangement was cancelled, the

https://www.mhc.tn.gov.in/judis Crl.O.P.No.21261 of 2022

parents of the second respondent arranged the marriage of the first accused

with the second respondent and the same was performed on 31.10.2018.

Further, the case of the prosecution is that the first accused was insisting for

physical relationship with the second respondent and she refused to have

physical relationship with him. After sometime of the marriage, the second

respondent went to her parents' house stating that she would come back

after she attains the age of majority. After the second respondent attained

the age of majority, she came to the house of the first accused and the

second respondent came to know that the first accused got married to one

Kowshika Madhu on 15.05.2020 and their marriage was registered. When

the second respondent questioned the marriage with the first accused, he

threatened her. Hence the complaint.

3. The learned Counsel appearing for the petitioner would submit that

the petitioner is innocent and he has not committed any offence as alleged by

the prosecution. Without any basis, the first respondent police registered a

case in Crime No.321 of 2020 for the offences under Sections 9(1), 10 of

the Protection of Child from Sexual Offences Act, 2012 and Sections 9 and

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10 of the Prohibition of Child Marriage Act, 2006 and Section 494 of IPC,

as against the petitioner and the same has been taken cognizance in

Spl.S.C.No.196 of 2021 on the file of the POCSO Special Court, Salem.

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. T.Muruganantham, learned counsel appearing for the

petitioner 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:-

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" 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.

7. Recently, the Hon'ble Supreme Court of India dealing in respect

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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.21261 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

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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.

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

the proceedings in Spl.S.C.No.196 of 2021 in Crime No.321 of 2020 on the

file of POCSO Special Court, Salem. The petitioner is at liberty to raise all

the grounds before the trial Court and the personal appearance of the

petitioner is dispensed with and they 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.

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