Jothimarkandan, Age 55 v. The State Of Tamil Nadu Rep.By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 17.07.2020

CORAM

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.No.27185 of 2017 and Crl.M.P.Nos.15586 and 15587 of 2017

1. Jothimarkandan, S/o.Rangasamy

2. Rajakumari, W/o.Jothimarkandan

3. Arulraja S/o.Jothimarkandan All are at Velvimangalam Village, Kunnam Taluk, Perambalur District.

... Petitioners Vs.

1. The State of Tamil Nadu, Rep. by the Inspector of Police, All Women Police Station, Perambalur, Perambalur District.

Crime No.10/2017 (C.C.No.152/2017)

2. M.Anusha, W/o.Malarkannan, D/o.Vellaiyan, Alathiyur Village, Senthurai Taluk, Ariyalur District.

... Respondents *[2nd respondent is impleaded as per the order of this Court dated 25.07.2018 in Crl.M.P.No.9860/2017 in Crl.O.P.No.27185/2017] Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., praying to call for the records relating to the charge sheet filed in C.C.No.152/2017 on the file of Judicial Magistrate and Additional Mahilar Court, Perambalur and quash the same.

For Petitioners : Mr.Tamil Thendral Arasu For Respondents : Mr.K.Prabakar, Additional Public Prosecutor, for R1

O R D E R

This petition has been filed to quash the proceedings in C.C.No.152/2017 on the file of Judicial Magistrate and Additional Mahilar Court, Perambalur, as against the petitioners. 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 first respondent police registered a case in Crime No.10 of 2017 for the offences under Sections 498 (A), 406, 294 (b), 323, 506 (1), 109 of IPC, as against the petitioners and the same has been taken cognizance in C.C.No. 152 of 2017 on the file of the Additional Mahila Court, Perambalur. Hence he prayed to quash the same.

3.

The learned Additional Public Prosecutor would submit that the trial has been commenced and some of the witnesses have been examined in this case.

4.

Heard Mr.M.Tamil Thendral Arasu, learned counsel appearing for the petitioners and Mr.K.Prabakar, learned Additional Public Prosecutor appearing for the first respondent. 5.

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.

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 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 appellantC.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."

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 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.

8.

In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No. 152 of 2017 in Crime No.10 of 2017 on the file of the Additional Mahila Court, Perambalur. The petitioners are at liberty to raise all the grounds before the Trial Court. Considering the facts and circumstances of the case, the personal appearance of the petitioners are dispensed with and they shall be represented by a counsel after filing appropriate application. However, the petitioners 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. Consequently, connected miscellaneous petitions are closed.

-s/d- Assistant Registrar True Copy Sub-Assistant Registrar pvs

To

1. The Judge,Additional Mahila Court, Perambalur

2. The Inspector of Police, All Women Police Station, Perambalur, Perambalur District.

3. The Public Prosecutor, High Court of Madras.

Crl.O.P.No.27185 of 2017 and Crl.M.P.No.15587 of 2017 ssv(co) aa09/09/2020