Madras High Court

Thanikachalam vs The State Rep. By on 23 September, 2022

                                                               Crl.O.P.Nos.17516 & 17518 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 23.09.2022

                                                     CORAM:

                            THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN

                                         Crl.O.P.Nos.17516 & 17518 of 2022
                                                        and
                                         Crl.M.P.Nos.10931 & 10932 of 2022

                     1. Thanikachalam
                     2. Priya                                    ....    Petitioners in both
                                                                               Crl.O.Ps
                                                       -Vs-

                     1. The State rep. by
                     The Sub Inspector of Police,
                     B1, North Beach Police Station,
                     Chennai District.

                     2. Venkatesan                               ....   Respondents in both

Crl.O.Ps Prayer in Crl.O.P.No.17516 of 2022: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records in pursuant to FIR No.1591 of 2021 dated 05.12.2021 pending on the file of the 1st respondent police and quash the same. Prayer in Crl.O.P.No.17518 of 2022: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records in pursuant of C.C.No.739 of 2022 pending on the file of the learned VII Metropolitan Magistrate at George Town, Chennai and quash the same.


https://www.mhc.tn.gov.in/judis
                                                                     Crl.O.P.Nos.17516 & 17518 of 2022

                                                       In both Crl.O.Ps
                                              For Petitioners    : Mr.E.Abdul Rahimon

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

                                              For R2             : Mr.R.Harinath


                                                    COMMON ORDER

Crl.O.P.No.17516 of 2022 has been filed to call for the records in

pursuant to FIR No.1591 of 2021 dated 05.12.2021 pending on the file of

the 1st respondent police and quash the same.

2. Crl.O.P.No.17518 of 2022 has been filed to call for the records

in pursuant of C.C.No.739 of 2022 pending on the file of the learned VII

Metropolitan Magistrate at Geroge Town, Chennai and quash the same.

3. Heard, Mr.E.Abdul Rahimon, learned counsel appearing for the

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

appearing for the 1st respondent and Mr.R.Harinath, learned counsel

appearing for the 2nd respondent.

4. The case of the prosecution is that on 18.10.2021, the accused

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

persons/petitioners scolded the defacto complainant with filthy language.

Therefore, the defacto complainant immediately called Police control

room. One of the constable came to the occurrence place and treated the

issue as electricity service connection and left the place of occurrence.

Again the accused persons, came to the place of occurrence, scolded the

defacto complainant and also threatened him with dire consequences.

Hence, the complaint.

5. The learned counsel for the petitioners submitted that though

the FIR was registered on 19.10.2021, it was reached the concerned

Judicial Magistrate Court only on 07.12.2021. There is absolutely no

explanation for delay in sending FIR. He further submitted that already

civil dispute between the petitioners and the second respondent herein.

The second respondent is in habit of lodging one complaint and another

repeatedly for the civil dispute. He further submitted that even before

reaching the FIR to the concerned Judicial Magistrate Court, another FIR

is registered on 05.12.2021. Therefore, the entire occurrence have not

been taken place and both the complaints are frivolous.

6. On perusal of both the charge sheet and FIR, there are specific

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

allegations attracted for the offence under Sections 294(b) and 506(i) of

IPC. In pursuant to the FIR registered in Crime No.1591 of 2021, the

occurrence took place on 05.12.2021 at about 10.00 p.m, the petitioners

came to the house of the second respondent and broken the CCTV. It

was questioned by the defacto complainant, immediately the petitioners

attacked the defacto complainant by hands. Therefore, there are specific

allegations as against the petitioners and prima facie case has been made

out to register the FIR for the offences under Sections 294(b), 323, 427

and 506(i) of IPC.

7. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

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.

8. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

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.”

9. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

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 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.

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

quash the FIR in Crime No. 1591 of 2021 and the proceedings in

C.C.No.739 of 2022 on the file of the VII Metropolitan Magistrate,

George Town, Chennai. Accordingly, both Criminal Original Petitions

stands dismissed. However, the personal appearance of the petitioners is

dispensed with and they shall be represented by a counsel after filing

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.17516 & 17518 of 2022

appropriate application. Consequently, connected miscellaneous

petitions are closed.