N.Senthil Kumar, v. N.Shanthi,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:02.12.2020
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.(MD).Nos.12406 and 12407 of 2016 1.N.Senthil Kumar 2.I.Selvam 3.N.Sundharapandian ... Petitioners/Accused 1 to 3 Vs N.Shanthi ... Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, praying to call for the records pertaining to C.C.No.39 of 2016 on the file of Judicial Magistrate No.I, Dindigul and quash the same.
Prayer in CRL MP(MD)No. 12407 of 2016 :
Petition filed under Section 482 of Cr.P.C., to dispense with the Personal appearance of the petitioners before the trial court in C.C.No.39 of 2016 on the file of the Judicial Magistrate No.I, Dindigul.
For Petitioners : Mr.A.Chandrakumar For Respondent : No appearance
ORDER
This criminal original petition has been filed to quash the proceedings in C.C.No.39 of 2016 on the file of Judicial Magistrate No.I, Dindigul, as against the petitioners. 2.The learned Counsel appearing for the petitioner would submit that the third petitioner and the respondent are brother and sister, both of them were born through different mothers but father is same. Hence, a civil suit was filed by the third petitioner's family, due to which an enmity and wreck vengeance was arose between both the families. In the said situation, the dispute was arose between the spouses of the respondent's family and both of them were living separately. Therefore, all the petitioners were taken efforts for reunion of the respondent with her husband, but the respondent did not accept their demand and started quarrel with the petitioners. Thereafter, the respondent has filed a petition against her husband including the petitioners under the Domestic Violence Act in DVOP.No.5 of 2013 and the same 1/4
still pending. During the pendency of this petition, against the respondent has filed impugned private complaint before the Judicial Magistrate No.I, Dindigul in C.C.No.39 of 2016 for offence under Sections 341, 448, 334 and 506(ii) of IPC r/w 4 of Women Harassment Act. Hence he prayed to quash the same. 3.Heard the learned counsel appearing for the petitioner. 4.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.
5.Recently, the Hon'ble Supreme Court of India deals with 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 2/4
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."
6.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 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.
7.In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No.39 of 2016 pending on the file of the Judicial Magistrate No.I, Dindigul. The petitioners are at liberty to raise all the grounds before the trial Court. 3/4
Considering the age of the petitioners, the personal appearance of the petitioners is 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 copy of this Order, if not already disposed of.
8.Accordingly, this criminal original petition is dismissed. Consequently, connected Miscellaneous petition in Crl.M.P(MD) No.12406 of 2016 stands closed and Crl.M.P(MD) No.12407 of 2020 stands ordered.
Sd/- Assistant Registrar (CS-III) // True Copy // / /2020 Sub Assistant Registrar(CS) vsg Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To:
The Judicial Magistrate No.I, Dindigul.
and Crl.M.P.(MD).Nos.12406 and 12407 of 2016 02.12.2020 SE(CO) KM (14.12.2020) 4P 2C 4/4