Madras High Court

S.Thirupathi vs The State Represented By on 16 September, 2022

                                                                                 Crl.O.P.No.22286 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 16.09.2022

                                                           CORAM

                                  THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

                                                  Crl.O.P.No.22286 of 2022
                                                            and
                                             Crl.M.P.Nos.14348 and 14349 of 2022

                S.Thirupathi                                                 ... Petitioner
                                                              Vs.

                1. The State represented By
                   Inspector of Police,
                   Thammampatty Police Station,
                   Salem District.

                2. Selvamani                                         ... Respondents
                Prayer: Criminal Original petition filed under Section 482 of Code of Criminal
                Procedure, to call for the records pending on the file of Learned Principal District
                and Sessions Judge, Salem District in Spl.S.C.No.4 of 2021 and quash the
                Criminal proceeding.
                                  For Petitioner      : Mr. V.Saravanan
                                  For R1              : Mr. S.Santhosh
                                                        Government Advocate (Crl.Side)

                                                           ORDER

This Criminal Original Petition has been filed calling for the records

pending on the file of Learned Principal District and Sessions Judge, Salem

District in Spl.S.C.No.4 of 2021 and quash the Criminal proceeding.

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Crl.O.P.No.22286 of 2022

2. The case of the prosecution is that the petitioner is arrayed as A2. It

is alleged that the petitioner along with other accused received a sum of

Rs.3,35,000/- from the defacto complainant under the guise of getting a job to the

defacto complainant's son viz, one Backiyaraj at Dubai. Thereafter, the said

Backiyaraj was placed in a job of demolishing huge building. Thereafter, he was

asked to work without proper time to rest or relax. While being so, the said

Backiyaraj committed suicide by hanging. Thereafter, when the defacto

complainant asked to repay the amount, the accused persons failed to repay the

amount and also abused the defacto complainant in filthy language and

threatened him with dire consequences. Hence, the complaint.

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

the petitioner is an innocent person and he has not committed any offence as

alleged by the prosecution. Without any base, the first respondent police

registered a case in Crime No.158 of 2019 for the offences under Sections

506(1), 420 of IPC and Sections 3(1)(a), 3(2)(va) and 3(1)(r) of the Scheduled

Caste and the Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015, as against the petitioner and the same has been taken cognizance in

Spl.S.C.No.4 of 2021 on the file of the Learned Principal District and Sessions

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Crl.O.P.No.22286 of 2022

Judge, Salem District. Hence he prayed to quash the same.

4. The learned Government Advocate (Crl.Side) would submit that the

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

case.

5. 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 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.No.22286 of 2022

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.

6. 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 its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.

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Crl.O.P.No.22286 of 2022

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.”

7. 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 incorporated the ingredients necessary for

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Crl.O.P.No.22286 of 2022

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 are mixed question of facts and it cannot be considered in

quash petition under Section 482 Cr.P.C.

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

the proceedings in Spl.S.C.No.4 of 2021 pending on the file of the Learned

Principal District and Sessions Judge, Salem District. 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 trial, within a period of six months from the date of

receipt of a copy of this Order.

9. Accordingly, this Criminal Original Petition is dismissed.