Madras High Court
C.N.Siva Shankaran @ Siva Shankar Baba vs State Represented By on 1 December, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.6362 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2023
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.6362 of 2022
and
Crl.M.P.No.3561 of 2022
1. C.N.Siva Shankaran @ Siva Shankar Baba
2. Divya Balasubramaniam
3. Karuna
4. Neeraja
5. Deepa .... Petitioners
Vs
1. State represented by
Inspector of Police,
CBCID North,
Kancheepuram
(Crime No.3 of 2021)
2. Ilakkiya .... Respondents
Prayer: Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, to call for the records pertaining to Crime No.3 of 2021
registered by the Inspector of Police, CBCID North, Kancheepuram dated
13.06.2021 and quash the FIR as against the petitioners.
For Petitioners : Mr.Ravi, Senior Counsel
for Mr.R.Vijayakumar
For R1 : Mr.A.Gopinath
Government Advocate (Crl. Side)
https://www.mhc.tn.gov.in/judis
1/12
Crl.O.P.No.6362 of 2022
ORDER
This Criminal Original Petition has been filed to quash the FIR
in Crime No.3 of 2021 on the file of the first respondent police.
2. Heard the learned counsel appearing for the petitioner and
the learned Government Advocate (Crl.Side) appearing for the first
respondent.
3. The case of the prosecution is that the second respondent,
while she was studying from 2010 to 2012 in the 11 th and 12th Standard ,
the first accused used to bless everybody. Therefore, the second
respondent had also respected him and she used to attend Satsang prayer.
At that time, the first accused used to give spiritual lecture. After
completion of school studies in the month of April 2012, farewell was
conducted. On that day, the second accused instructed the victim to go to
the first accused for clarification about spiritual matters, if any. Next day,
the second accused had taken her to the lounge of the first accused. At
that juncture, the first accused misbehaved with the victim. In the month
of May, 2012, when the victim attended Satsang along with her mother
and sister, after the prayer, the first accused had called her to his longue.
https://www.mhc.tn.gov.in/judis
She went along with her sister. There, the first accused misbehaved with
her and committed sexual assault on her. Later, she came to know that
there are so many victims like her. The first accused had committed
sexual assault on the victims with the help of other accused persons.
Hence, the complaint.
4. On receipt of the complaint, the Inspector of Police, All
Women Police Station, Melmaruvattur, registered FIR in Crime No.5 of
2021 for the offence under Sections354, 363, 365, 366, 109 of IPC and
Section 4 of Tamil Nadu Prohibition of Harassment of Women Act. After
so many complaints from the victims, investigation has been transferred
to the first respondent, who re-registered the FIR in Crime No.3 of 2021
for the same offence.
5. The learned counsel for the petitioner would submit that the
alleged occurrence took place in the month of April and May, 2012,
whereas, the present complaint was lodged in the year 2021. That apart,
now the first respondent altered the offence into POCSO Act. Even
assuming that the occurrence had taken place in the month of April and
May, 2012, the POCSO Act was not in force. The Act was given assent
https://www.mhc.tn.gov.in/judis
only on 19.06.2012 and the same was published on 20.06.2012.
Therefore, the Act cannot be given effect to retrospectively for the alleged
occurrence which took place in the month of April and May 2012. That
apart, there is no allegations as against the other accused persons. The
victim failed to state any valid reasons for the belated complaint and as
such, it is barred by limitation as contemplated under Section 468 of
Cr.P.C.
6. He further submitted that even according to the victim, there
was no kidnapping and even then, the first respondent registered FIR for
the offence under Sections 363, 365 and 366 of IPC. In order to attract
those offences, there should be force or compulsion and coercion and
against the will of a person, a person should be kidnapped or abducted.
Therefore, he prayed for quashment of FIR.
7. A perusal of the records reveals that though the occurrence
took place in the month of April and May, 2012, the victim was subjected
to mental trauma by the sexual assault committed by the accused. When
the victims were subjected for sexual assault, it cannot be expected that
they would lodge a complaint immediately after the occurrence. They
may not do so due to various reasons.
https://www.mhc.tn.gov.in/judis
8. In the case of Sarah Mathew Vs. Institute of Cardio
Vascular Diseases by its Director Dr.K.M.Cherian and Others reported
in (2014) 2 SCC 62, the Hon'ble Supreme Court of India held that for the
purpose of computing the period of limitation under Section 482 Cr.P.C.,
the relevant date is the date of filing of the complaint or the date of
institution of prosecution and not the date on which the Magistrate takes
cognizance. Therefore, the said judgment is pertaining to the limitation
under Section 468 of Cr.P.C. In the case on hand, there is delay in
lodgment of complaint before the police authority. Therefore, the above
judgment is not applicable to the case on hand. For lodgment of
compliant, there may be delay for several reasons. Normally for the crime
against women, the delay cannot be a relevant material to quash the entire
proceedings.
9. In the case of State of Punjab Vs. Gurmit Singh and
Others reported in (1996) 2 SCC 384, the Hon'ble Supreme Court of
India following various judgments, held that the courts cannot overlook
the fact that in sexual offence, delay in the lodging of FIR can be due to
variety of reasons, particularly the reluctance of the prosecutrix or her
family members to go to the police station and complain about the
https://www.mhc.tn.gov.in/judis
incident which concerns the reputation of the prosecutrix and the honour
of her family. It is only after giving it a cool thought that a complaint of
sexual offence is generally lodged. In the case on hand, admittedly the
victim is residing in Australia. Only for the purpose of schooling, she
came down to India and joined in the school of the first accused. After the
occurrence, she obtained transfer certificate and went to Australia to
continue her studies. Therefore, the delay in lodgment of complaint is
duly explained by the victim and it is not the ground to quash the FIR on
its threshold.
10. Recently, Hon'ble Supreme Court of India in the case of
Niharika Infrastructure Private Limited Vs. State of Maharashtra and
others reported in 2021 SCC Online SC 315, held as follows:
..... xii) The first information report is not
an encyclopaedia which must disclose all facts and
details relating to the offence reported. Therefore,
when the investigation by the police is in progress,
the court should not go into the merits of the
allegations in the FIR. Police must be permitted to
complete the investigation. It would be premature to
pronounce the conclusion based on hazy facts that
https://www.mhc.tn.gov.in/judis
the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of process of
law. After investigation, if the investigating officer
finds that there is no substance in the application
made by the complainant, the investigating officer
may file an appropriate report/summary before the
learned Magistrate which may be considered by the
learned Magistrate in accordance with the known
procedure;
xiii) The power under Section 482 Cr. P.C.
is very wide, but conferment of wide power requires
the court to be more cautious. It casts an onerous
and more diligent duty on the court;
xiv) However, at the same time, the court, if
it thinks fit, regard being had to the parameters of
quashing and the self-restraint imposed by law, more
particularly the parameters laid down by this Court
in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the
FIR/complaint;
xv) When a prayer for quashing the FIR is
made by the alleged accused and the court when it
exercises the power under Section 482 Cr. P.C., only
has to consider whether the allegations in the FIR
disclose commission of a cognizable offence or not.
https://www.mhc.tn.gov.in/judis
The court is not required to consider on merits
whether or not the merits of the allegations make out
a cognizable offence and the court has to permit the
investigating agency/police to investigate the
allegations in the FIR; ....
11. It is also relevant to rely upon the judgment of the Hon'ble
Supreme Court of India passed in Crl.A.No.255 of 2019 dated
12.02.2019 in the case of Sau. Kamal Shivaji Pokarnekar vs. the State
of Maharashtra & ors., as follows:-
"4. The only point that arises for our
consideration in this case is whether the High Court
was right in setting aside the order by which process
was issued. It is settled law that the Magistrate, at the
stage of taking cognizance and summoning, is
required to apply his judicial mind only with a view to
taking cognizance of the offence, or in other words, to
find out whether a prima facie case has been made
out for summoning the accused persons. The learned
Magistrate is not required to evaluate the merits of
the material or evidence in support of the complaint,
because the Magistrate must not undertake the
exercise to find out whether the materials would lead
to a conviction or not.
https://www.mhc.tn.gov.in/judis
5. Quashing the criminal proceedings is
called for only in a case where the complaint does not
disclose any offence, or is frivolous, vexatious, or
oppressive. If the allegations set out in the complaint
do not constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the High
Court to quash the same. It is not necessary that a
meticulous analysis of the case should be done before
the Trial to find out whether the case would end in
conviction or acquittal. If it appears on a reading of
the complaint and consideration of the allegations
therein, in the light of the statement made on oath
that the ingredients of the offence are disclosed, there
would be no justification for the High Court to
interfere.
......................
9. Having heard the learned Senior
Counsel and examined the material on record, we are
of the considered view that the High Court ought not
to have set aside the order passed by the Trial Court
issuing summons to the Respondents. A perusal of the
complaint discloses that prima facie, offences that are
alleged against the Respondents. The correctness or
otherwise of the said allegations has to be decided
only in the Trial. At the initial stage of issuance of
https://www.mhc.tn.gov.in/judis
process it is not open to the Courts to stifle the
proceedings by entering into the merits of the
contentions made on behalf of the accused. Criminal
complaints cannot be quashed only on the ground
that the allegations made therein appear to be of a
civil nature. If the ingredients of the offence alleged
against the accused are prima facie made out in the
complaint, the criminal proceeding shall not be
interdicted."
12. In view of the above discussion, this Court is not inclined
to quash the FIR in Crime No.3 of 2021 on the file of the first respondent
Police. Accordingly, this Criminal Original Petition stands dismissed.
Consequently, connected miscellaneous petition is closed.
01.12.2023
Lpp
Index:Yes/No
Internet:Yes/No
To
1.The Inspector of Police,
CBCID North,
Kancheepuram
2.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN,J.
Lpp
and
https://www.mhc.tn.gov.in/judis
01.12.2023
https://www.mhc.tn.gov.in/judis
