A.Sahabudeen v. Bathrunisha

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 03.08.2020

CORAM

THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.No.4355 of 2020 and Crl.M.P.Nos.2501 and 2502 of 2020 A.Sahabudeen/Aged 64 years, S/o.Mr.K.M.Abdul Azeez, Residing at No.47, Tamizhar Street, Thittachery Village, Nagapattinam Taluk and District - 609 703.

... Petitioner Vs Mrs.Bathrunisha/F/aged 43 years, W/o.A.Sahabudden, Residing at 12/13, Sardar Jung Garden, 1st Street, Royapettah, Chennai - 600 014.

... Respondent PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C, praying to call for the records pertaining to DVC No.29 of 2019 filed by the respondent as against the petitioner and pending before the learned XVIII Metropolitan Magistrate Court, Saidapet and to quash the same.

For Petitioner : No Appearance For Respondent : Abdul Mubeen

O R D E R

This petition has been filed to quash the proceedings in D.V.C.No.29 of 2019, on the file of the learned XVIII Metropolitan Magistrate Court, Saidapet.

2.

The learned Counsel appearing for the petitioners would submit that the petitioners are innocent and they have not committed any offence as alleged by the prosecution. Without any base, the XVIII Metropolitan Magistrate, Saidapet, Chennai has taken cognizance in DVC.No.29 of 2019 for the offences under Sections

12,17,18,19,20,22 and 23 of Protection of Women from Domestic Violence Act as against these petitioners. Hence he prayed to quash the same.

3.

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.

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.

4.

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.

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."

5.

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 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.

6. The only ground raised by the petitioner is that the complaint lodged by the respondent under Domestic Violence Act is barred by limitation for the reason that the respondent was driven out from the matrimonial home in the year 2017 onwards. It is seen from the records, there is no material produced before this Court to show that the respondent was driven out from the matrimonial home in the year 2017. Therefore all the points raised in this petition cannot be considered by this Court and the trial Court is directed to complete the trial within a period of six months from the date of receipt of copy of this Order.

7. In view of the above discussion, this Court is not inclined to quash the proceedings in DVC.No.29 of 2019 on the file of the learned XVIII Metropolitan Magistrate Court, Saidapet. Accordingly, this Criminal Original Petition is dismissed.

Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar(CS-III) //True Copy// Sub Assistant Registrar ub To

1. The XVIII Metropolitan Magistrate Court, Saidapet. 2.The Additional Public Prosecutor, Madras High Court, +1cc to Mr.P.A.Abdul Mubeen, Advocate, S.R.No.26166 Crl.O.P.No.4355 of 2020 and Crl.M.P.Nos.2501 and 2502 of 2020 SKS(CO) CB(26/08/2020)