Jothimani v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.04.2022

CORAM

THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN Crl.O.P(MD) No.8221 of 2022 and Crl.M.P(MD)Nos.5551 and 5553 of 2022 1.Jothimani 2.Kavitha 3.Jeeva ... Petitioners/Accused 1 to 3 Vs 1.The Inspector of Police, E1 K.Pudhur Police Station Madurai City, Madurai-625 007.

... 1st Respondent / Complainant 2.Birjathi Beham ... 2nd Respondents / Defacto complainant PRAYER: Criminal Original Petitions filed under Section 482 of Cr.P.C, praying to call for the records in CC No.1079/2020 on the file of the learned Judicial Magistrate No.VI, Madurai and quash the same as devoid of merits.

For Petitioners : Mr.B.Sargunam For Respondent : Mr.B.Thanga Aravindh No.1 Government Advocate (Crl.Side)

ORDER

This petition has been filed to quash the proceedings in CC No.1079/2020 on the file of the learned Judicial Magistrate No.VI, Madurai, thereby taken cognizance for the offences under Sections 379 and 34 of IPC, in Crime No.806/2019, as against the petitioners. 2.The case of the prosecution is that on 14.11.2019, the petitioners had stolen the jewels of the second respondent. Therefore, the second respondent lodged a complaint and for the same, the respondent police had registered an FIR in Crime No.806/2019 for the offences under Section 379 of IPC. After completion of investigation, the respondent police had filed final 1/4

report and the same has been taken cognizance in C.C.No.1079/2020, for the offences under Sections 379 and 34 of IPC, on the file of the learned Judicial Magistrate No.VI, Madurai. 3.The learned Counsel appearing for the petitioner 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. 806/2019 for the offences under Sections 379 of IPC, as against the petitioners and the same has been taken cognizance in CC No.1079/2020 on the file of the learned Judicial Magistrate No.VI, Madurai. Hence the petitioners prayed to quash the same.

4.The learned Government Advocate (Crl.Side) would submit that the trial has been commenced and some of the witnesses have been examined in this case.

5.Heard both sides and perused the materials available on record.

6.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.

7.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 2/4

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."

8.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.

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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 3/4

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.

` 9.In view of the above discussion, this Court is not inclined to quash the proceedings in CC No.1079/2020 on the file of the learned Judicial Magistrate No.VI, Madurai. The petitioners are at liberty to raise all the grounds before the trial Court. 10.Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also closed. Sd/- Assistant Registrar(CO) // True Copy // / /2022 Sub Assistant Registrar(CS) lr To

1. The Judicial Magistrate No.VI, Madurai.

2. The Inspector of Police, E1 K.Pudhur Police Station Madurai City, Madurai-625 007.

3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.B. SARGUNAM, Advocate ( SR-23087[F] dated 02/05/2022 ) Crl.O.P(MD)No.8221 of 2022 29.04.2022 nsn(CO) TR(24.05.2022) 4P 5C 4/4