Madras High Court
B.Benjamin David Sathyanathan vs State Rep.By Inspector Of Police on 29 September, 2023
Crl.O.P.(MD)No.20153 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.09.2023
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.O.P.(MD)No.20153 of 2021
and
Crl.M.P.(MD)No.11372 of 2021
B.Benjamin David Sathyanathan ... Petitioner / Accused
Vs.
1.State Rep.by Inspector of Police,
All Women Police Station,
AWPs Palayamkottai Police Station,
Tirunelveli City
(Crime No.21 of 2021) ... 1st Respondent / Defacto Complainant
2.Christina Ranjitham ... 2nd Respondent / Complainant
PRAYER: Criminal Original Petitions filed under Section 482 of the Code of
Criminal Procedure, to call for the records pertaining to the impugned FIR
in Crime No.21 of 2021, dated 09.11.2021, on the file of the respondent
No.1 and quash the same as illegal as against the petitioner alone.
For Petitioner : Ms.T.Seeni Syed Amma
For R1 : Mr.Meenakshi Sundaram, APP
For R2 : Mr.A.Robinson
for Mr.M.M.Manivel Pandian
1/20
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Crl.O.P.(MD)No.20153 of 2021
ORDER
Seeking to quash the proceedings in Crime No.21 of 2021, pending
on the file of the 1st respondent Police, the Petitioner / A1 is before this
Court, with this petition.
2. The gist of the case is that the 2nd respondent/defacto
complainant, wife of the petitioner, lodged a complaint against the
petitioner and his parents viz, father and mother, who have been arrayed
as A2 and A3. The marriage between the defacto complainant and the
petitioner solemnized on17.08.2016, which is an arranged marriage.
During the marriage, 100 sovereigns of gold jewels, Rs.5,00,000/- in cash
and a car viz., Skoda Rapid, bearing Registration No.TN-72-BD-4300, were
presented and the entire marriage expenses was spent by the 2nd
respondent's parents. During the marriage, the petitioner was presented
with gold chain, and a ring.
3. The petitioner is employed in Indian Bank, Velankanni Branch,
Nagapattinam District. He used to visit the 2nd respondent only during
weekends and holidays. The petitioner's parents restricted the defacto
complainant to have a regular contact with her husband and further they
were controlling her in all aspects. Using the defacto complainant's
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Crl.O.P.(MD)No.20153 of 2021
employment at Nagercoil, a certificate has been obtained and spouse
transfer was applied by the petitioner during January 2017. The
petitioner's father had sent some obscene whatsApp messages to the
defacto complainant, further, he instructed the defacto complainant to
send her private obscene photographs to him. The 2nd respondent
complained about the same to her husband, the petitioner herein, and to
her mother-in-law / A3, but both of them ignored her complaint, on the
other hand, they insisted that the defacto complainant to comply to the
wishes of A2 to have a smooth running of a family life.
4. During November, 2017, the petitioner and her parents said to
have taken the defato complainant to Dr.Agnes Joseph Nursing Home for
removal of cyst in the ovary. Though the defacto complainant was made to
believe that it was only laparoscopy operation, contrary to the same, open
surgery has been carried out. Further, during the surgery, left ovary of the
2nd respondent, without her consent, has been removed. During January
2020, when the 2nd respondent was handling her sister-in-law daughter's
baby, A2 in this case, in the guise of taking the baby, has touched her
breast and body. When she complained about the same, the petitioner and
A3 ignored it. Further, during February 2020, petitioner's mother / A3
called the defacto complainant and examined her private part using a
torch light and also passed comments about her body. This being so,
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suppressing the same, the petitioner filed a divorcé petition before the
Family Court, Tirunelveli, in IDOP.No.67 of 2021. The defacto complainant
earlier lodged a complaint on 04.03.2021, before the Inspector of Police,
All Women Police Station, who conducted an enquiry at that time, the
petitioner handed over all the jewels to the defacto complainant. During
August 2021, when the defacto complainant, her uncle and Aunt had gone
to resolve the differences between the petitioner and the defacto
complainant, at that time, all the accused joined together, abused,
threatened and chased her away. Hence, a complaint has been lodged. It
is her case that for a short period after the marriage, the 2 nd respondent
was living with petitioner and his parents. During October 2016, she was
forced out and she started staying with her parents and whenever
petitioner used to come from Velankanni, during weekends, at that time
both the petitioner and the defacto complainant were living together, rest
of the time, she was residing with her parents.
5. Ms.T.Seeni Syed Amma, the learned counsel appearing for the
petitioner would submit that the marriage between the petitioner and the
defacto complainant taken place on 17.08.2016, it was an arranged
marriage. There was no demand of any dowry. As per the customs,
'Sridhana' articles were gifted, now returned and handed over to the
defacto complainant. In the complaint, she admits that the entire jewels
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Crl.O.P.(MD)No.20153 of 2021
returned to her. It is an admitted case of the 2nd respondent that the
petitioner was employed in Indian Bank, Velankanni Branch, and he used
to visit only during weekends and at that time, she would come from her
parents' house and live with the petitioner. It is admitted that from
October 2016, the 2nd respondent was living with her parents and she was
attending her job. The defacto complainant given a letter and certificate
for spouse transfer. The complaint is primarily against the parents of the
petitioner viz., A2 and A3, as far as the petitioner is concerned, there is
nothing against him. Except for the open operation to remove the cyst
during November 2017 in Agnus Joseph Hospital. This allegation appears
not sustainable as could be seen from the evidence of Dr.Agnus Marry,
attached to the Agnus Nursingh Home, who was examined as P.W.2 in
I.D.O.P.No.67 of 2021, wherein, she clearly deposed that during the scan,
20 c.m., round cyst was found attached to the left ovary of the R2 and due
to which she was suffering with pain, not well, she was advised surgery.
Though laparoscopy surgery was contemplated, due to swelling of cyst, its
position and size, open surgery was necessary and carried out. It is the
further evidence of the Doctor is that in the consent form R2, who is an
educated person had signed the same as well as her mother. In the
reverse of the consent form, the petitioner and other accused had signed.
Only after getting consent, the surgery was carried out on 15.11.2017 Till
the complaint was lodged on 09.11.2021, there is no allegation made
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Crl.O.P.(MD)No.20153 of 2021
against the surgery. The Doctor further states that the surgery was
carried out, since the continuation of the Cyst could have caused life
threat to R2. Further, there was no removal of ovary, as could be seen
from the medical report, which has been marked in the IDOP proceedings.
The 2nd respondent had cross-examined the Doctor in detail in the
proceedings, but could not impair the evidence in any manner.
6. It is further submitted that in sending of WhatsApp messages by
A2, the specific case of the petitioner is that the petitioner's father A2 and
the 2nd respondent had developed some relationship, which was objected
by the petitioner, despite the same, they continued their relationship,
thereafter, the petitioner moved away from his father, and has got nothing
to do with the act of A2. The 2nd respondent admits that the complaint has
been lodged after initiation of divorce proceedings in IDOP No.67 of 2021.
Further, the matrimonial proceedings ended in favour of the petitioner and
by Judgment dated 16.09.2022, divorce granted, In the Judgment, all the
allegations made in the complaint have been contested and decided by the
Family Court. In the Family Court proceedings, the petitioner and Doctor
Dr.Agnus Marry, examined as P.W.1 and P.W.2 and marked Ex.P1 to P17
and the 2nd respondent examined herself as R.W.1 and she marked Ex.R1
to R12. After full-fledged trial, the Family Court finding the petitioner
proved that he is unable to live with the 2 nd respondent and establishing
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Crl.O.P.(MD)No.20153 of 2021
his ground for divorce and hence, decree for divorce granted. According
to the petitioner, as on date, no appeal have been filed by the 2nd
respondent. Further, submitted that pursuant to the Judgment of the
Family Court, the left over articles of 18 items have been handed over to
the 2nd respondent by the petitioner on 17.02.2023. Both of them have
jointly entered into mutual agreement and the copy of the same has been
produced. The petitioner further produced the copy of the handing over of
jewels on 18.03.2021, which is again signed by both the parties along with
witnesses Thus, in sum and substance, now there is no relationship
between the petitioner and the 2nd respondent, as husband and wife.
Divorce has been granted, all the articles presented during marriage has
been handed over. The 2nd respondent admits that the Scoda Rapid car is
with the 2nd respondent's parents and all the articles have been received
and now with her, which is admitted in her evidence in the IDOP
proceedings. Thus, looking the case from any angle, there is no offence
made out against the petitioner.
7. It is further submitted that, when the case came up for admission,
this Court has admitted the case and granted interim stay, thereafter, the
interim stay has been extended. Contrary to the stay granted, now
charge sheet has been filed in C.C.No.1800 of 2023, before the learned
Judicial Magistrate No.V, Tirunelveli. Along with submission, the petitioner
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Crl.O.P.(MD)No.20153 of 2021
filed a typed set listing the letter, dated 15.04.2017, written by the defacto
complainant / 2nd respondent seeking pardon for her activities and another
undated letter signed by the 2nd respondent for solving the uterus problem
and restoring her to normal life and also bringing happiness to her and the
short messages sent to the petitioner pouring love and affection towards
him. In support of his contention, the petitioner relied upon the decision
of this Court reported in 2021 MLJ 423 Umarani Case and 2021 1 MLJ
417 Crishnaveni Case and the Apex Court Judgment of the Supreme
Court in Abhishek Vs. State of Madhya Pradesh made in C.A.No.1457
of 2015, dated 31.08.2023 that FIR as well as consequent charge sheet
filed during pendency of proceedings before the Court can be quashed.
Hence, the learned counsel prayed for quashing of the FIR and
consequently the charge sheet filed against the petitioner.
8. Mr.Meenakshi Sundaram, the learned Additional Public
Prosecutor for the State would submit that the defacto complainant is the
wife of the petitioner / A1, she had lodged the complaint to the respondent
police against the petitioner and his parents A2 and A3. The complaint is
a detailed one, giving specific particulars with regard to each of the overt
act. The marriage between the petitioner and the defacto complainant
had taken place on 17.09.2018, within three months she was forced out
from the matrimonial home, and thereafter, she used to visit the
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matrimonial home whenever her husband comes from Vellankanni and the
demand of dowry and harassment was continued. The defacto
complainant though stayed in her parental house, the harassment
continued. A2 in this case is father-in-law, constantly harassing her and
sending abusive whatsApp messages, despite her complaint, the
petitioner as well as A3 no action has been taken, on the other hand, they
supported the act of A2 and instructed the defacto complainant to co-
operate with him and to budge to his needs and wishes.
9. Further in the complaint she had disclosed about the divorce
proceedings, since the harassment was continuous, a complaint was
lodge. Though this Court at the stage of admission had granted interim
stay, thereafter, stay was not extended. The Apex Court in the case of
Asian Resurfacing of Road Agency Private Limited and Another Vs.
Central Bureau of Investigation reported in (2002 (10) SCC 592) had
declared that any stay granted by any court including High Court
automatically expires within a period of six months, and unless extension
is granted for good reason. In this case, stay was initially granted on
17.01.2021 again on 03.02.2022, the interim stay was extended for a
period upto 17.02.2022, thereafter, no extension of stay was granted.
Hence, the investigation continued, completed, charge sheet was made
ready on 21.04.2022, and on 01.05.2022 the same has been filed before
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the learned Judicial Magistrate No.6, Tirunelveli. Now, it has been taken
on file in C.C.No.1800 of 2023. Hence, prayed for dismissal of the quash
application.
10. Mr.Robinson, the learned counsel for the 2nd respondent / defacto
complainant submitted that the harassment by the petitioner and his
parents viz., A2 and A3 was continuous. The marriage had taken place on
17.08.2016. During the marriage, nearly 100 sovereigns of gold jewels and
Rs.5,00,000/- cash and a Skoda Rapid car, house hold articles were
presented on demand of the petitioner and his parents. During the
marriage, the petitioner was presented with one gold chain and a Ring.
The entire marriage expenses was met by the 2nd respondent's parents.
The petitioner informed that he is presently employed at Indian Bank,
Velankanni Branch, and soon he will get transfer to Nagercoil and the
petitioner and the 2nd respondent will set set up a family for both of them.
Contrary to the undertaking given, the petitioner could not get transfer
and he was staying in Velankanni and only during weekends, he used to
come. He forced the 2nd respondent to stay with his parents, though the
2nd respondent well qualified and was employed as professor, she was
treated as maid to attend all course of A2 and A3. During her stay, she
was harassed and finally in October 2016, she was chased out from her
matrimonial home and she was forced to stay with her parents. They had
also placed restriction on the 2nd respondent to have contact with the
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petitioner. The 2nd respondent after coming to her parent's house
contacted and informed the petitioner about the sufferings and
harassment she faced, the petitioner not taken any steps to question his
parents and to restore happiness to the 2nd respondent, on the other hand,
he was only supporting his parents. The 2nd petitioner with seductive mind
staring and looking the 2nd respondent with bad intention. Further, he had
taken some pictures of the 2nd respondent without her knowledge and
forced the 2nd respondent to share whatsApp and send some private photos
of her. When the 2nd respondent informed about the same to the petitioner
and A3, they had also supported A2 and hence, A2 activities in this aspect
continued. Further, they had taken the 2nd respondent to the hospital for
operation instead of removing the cyst, they removed the entire left ovary
and made her incapable to bear child. The 2nd respondent was with font
hope and praying that all her sufferings would vanish and she would join
the first petitioner and they can live as husband and wife. On the other
hand, using the 2nd respondent's employment as Professor in Mother
Therasa Engineering College, obtained a certificate and using the same,
he obtained spouse transfer, but not taken the 2nd respondent into the
family life, on the contrary he had filed the divorce petition in IDOP No.67
of 2020. Hence, the 2nd respondent not condoned the activities, lodged the
complaint to the respondent police.
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11. The counsel for the 2nd respondent fairly submitted that the
Judgment of divorce of has been granted on 16.09.2022 to the first
petitioner, subsequent to the divorce, household articles have been handed
over on 17.02.2023. Earlier, during enquiry by the All Women Police,
jewels were returned on 18.03.2021. He further submits that steps have
been now taken to file Civil Miscellaneous Appeal before the High Court,
against the Judgment in IDOP No.67 of 2020, dated 16.09.2022. Further,
in support of his contention, the petitioner relied upon the Judgment of the
Apex Court in Renu Kumari Vs. Sanjay Kumar and Others reported in
(2008 (12) SCC 346) wherein the Apex Court held that when an
information is lodged at the Police Station and the offence is registered,
then the mala fides of the informant would be of secondary importance. It
is the materials collected during investigation on evidence led in Court
which decides the fate of the accused person. In this case, investigation
has completed and charge sheet filed.
12. Further, the learned counsel relied upon the decision of the
Judgment of the Apex Court in Rupali Devi Vs. State of Uttar Pradesh
and Others reported in (2019 (5) SCC 384) for the point that mental
cruelty borne out of physical cruelty are abusive and cumulative verbal
exchanges would continue in the parental home even though there be any
overt act of physical cruelty at such place. He relied upon the decision of
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of the Apex Court in Kaptan Singh Vs. State of Uttar Pradesh
reported in (2021 (9) SCC 35) for the point that High Court cannot act
like the investigating agency nor can exercise the powers like an appellate
Court. The question required to be examined keeping in view the contents
of FIR prima facie material. At this stage, the High Court cannot
appreciate evidence nor can it draw its own inference from the contents of
FIR and material relied on. He relied upon the decision in the case of
Apex Court in Kishan Singh Vs. Gurpal Singh and Others reported in
(2010 (8) SCC 775) for the point that the findings of the fact recorded by
the Civil Court do not have any bearing so far as criminal case is
concerned and vis versa.
13. Further, referring to the deposition of the petitioner in Family
Court proceedings in the typed set submitted that though the petitioner
had made a claim that the act of A2 is independent and the petitioner has
nothing to do with it, in the matrimonial proceeding, in his evidence, he
denied the same, and also feign ignorance of his father sending
objectionable whatsApp messages and pictures. He referred to the
evidence of the 2nd respondent in the matrimonial proceedings wherein
she reconfirmed the harassment caused to her. The relief sought for
in the matrimonial case and criminal case are not one and the same,
hence, the findings of the family Court will have no bearing in the present
case and hence, sought for dismissal of the petition.
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14. I have heard the learned counsel appearing on either side and
perused the materials available on record.
15. It is seen that the admitted case is that the marriage between the
petitioner and the 2nd respondent had taken place on 17.08.2016, it was an
arranged marriage. During the marriage, customary articles such as, gold
jewels, household articles and car were presented as Sridhana. After the
marriage, the 2nd respondent lived in the petitioner's house along with A2
and A3. The petitioner after the marriage joined his duty in Indian Bank,
Velankanni Branch, Nagapattinam District. Till October 2016, the defacto
complainant was living with the parents of the petitioner for a short,
thereafter, due to the restrictions imposed by A2 and A3, she left to her
parental home, which is not in dispute. The 2nd respondent stay was only
for a short period from August to October 2016. Admittedly, during this
period, the petitioner was posted in Velankanni, Nagapattinam District.
For the inauguration of new building of Indian Bank in Velankanni, the 2nd
respondent had come and stayed with the petitioner. The other allegations
are against A2, father of the petitioner and mother A3, who said to have
forced the defacto complainant to send a pictures in whatsApp, during
January 2017 and she was also sending the same. The WhatsApp
messages has been produced by the respondent. From the WhatsApp
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messages it is seen that the 2nd respondent and the A2 have been in
constant exchanges of messages, pictures between them. A3 acted in a
improper manner. The other allegation is that during November 2017, the
defacto complainant was admitted in Agnus Joseph Hospital for removal
of Cyst attached to the left ovary on the understating that it would be only
a laparoscopy surgery, but contrary to he same, open surgery conducted
without her permission and knowledge and they also removed the left
ovary.
16. It is seen that Doctor Agnus Mary examined as P.W.2 in DVOP
No.67 of 2021 wherein she deposed that on 15.11.2017 though a
laparoscopy surgery was contemplated, the situation needed that surgery
could not be completed by laparoscopy surgery, hence, open surgery was
conducted cyst was removed and not the ovary removed, as claimed. The
surgery report and medical certificate to that effect confirmed the same.
The 2nd respondent could not discredit this witness. It is to be seen that
the 2nd respondent examined herself as R.W.1 in the said proceedings, in
her evidence, the 2nd respondent admit about she signing the consent form
along with her mother, informed about operation procedure and the scan
report disclose that left ovary available after the operation. It is also to be
seen that, the 2nd respondent written a letter to he petitioner thanking him
for taking efforts to the surgery and also reliving her pain and sufferings.
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The 2nd respondent had not seriously disputed her handwriting or
signature in the letter, but made a feeble attempt that she was forced to
write so, but nothing is there in the complaint, obviously, it is an after
thought explanation given now.
17. The only other allegation is that using the respondent's
employment in Mother Therasa Engineering College, Thoothukudi, for the
spouse transfer of the petitioner. It is not in dispute that during the
relevant time, the petitioner and the defacto complainant were husband
wife and the 2nd respondent in the complaint admits that the request for
spouse transfer was made on the employment of the 2nd respondent, which
was natural one. Thus, the petitioner and the 2 nd respondent lived
together only for short period, as husband and wife, thereafter, due to
difference of opinion between them and due to the conduct of the 2 nd
respondent, the petitioner not condoned the acts of the 2nd respondent and
hence, he wanted to keep away and pursued his case and filed a divorce
petition. The Family Court, Tirunelveli, after full fledged trial had granted
divorce justifying the petitioner's cause.
18. Thus, looking the case in a holistic manner considering all the
facts and circumstances, this Court finds that continuation of the
proceedings as against this petitioner would amount to abuse of process of
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law. The Apex Court in the case of Mahmood Ali and Others Vs. State
of U.P.and Others (Criminal A[ppeal No.2341 of 2023, decided on
08.08.2023) reiterating the legal principles applicable apropos Section
482 Cr.P.C., finding that 'the proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive or wreaking vengeance,
then in such circumstances, the High Court owes a duty to look into the
FIR with care and a little more closely. It was further observed that it will
not be enough for the Court to look into the averments made in the
FIR /complaint alone for the purpose of ascertaining whether the
necessary ingredients to constitute the alleged offence are disclosed or not
as, in frivolous or vexatious proceedings, the Court owes a duty to look
into many other attending circumstances emerging from the record of the
case over and above the averments and, if need be, with due care and
circumspection, to try and read between the lines'. It is well settled that
the High Court would continue to have the power to entertain and act
upon a petition filed under Section 482 Cr.P.C., to quash the FIR even
when a charge sheet is filed by the police during the pendency of such
petition. The Apex Court in Abhshek Vs. State of Madhya Pradesh
made in Criminal Appeal No.1457 of 2015, reiterated the above
principles. Hence, this Court has no hesitation to quash the proceedings
against the petitioner herein in Crime No.21 of 2021.
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19. In the result, this Criminal Original Petition is allowed and the
proceedings in Crime No.21 of 2021, on the file of the first respondent is
quashed as against the petitioner. Consequently, the proceedings against
the petitioner in C.C.No.1800 of 2023, pending on the file of the Judicial
Magistrate Court No.V, Tirunelveli, is also quashed. Consequently,
connected miscellaneous petition is closed.
29.09.2023
Index : Yes/No
Internet : Yes / No
mpk/SMN2
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Crl.O.P.(MD)No.20153 of 2021
To
1.The Judicial Magistrate No.V,
Tirunelveli.
2. The Inspector of Police,
All Women Police Station,
Palayamkottai,
Tirunelveli City.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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Crl.O.P.(MD)No.20153 of 2021
M.NIRMAL KUMAR, J.
SMN2
CRL.O.P.(MD)No.20153 of 2021
29.09.2023
https://www.mhc.tn.gov.in/judis
