Karuppusamy v. The Inspector Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.01.2020 CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN Crl OP(MD)Nos.4864 & 6702 of 2016 and Crl MP(MD)Nos.2417, 2418, 3368 & 3369 of 2016 Karuppusamy Thirumalaisamy Thirumathi ... Petitioners / Accused Nos.2 to 4 in Crl OP(MD)No.4864 of 2016 Arumugam
...Petitioner / Accused No.1
in Crl OP(MD)No.6702 of 2016
1. State, rep.by The Inspector of Police, All Women Police Station, Madurai Town, Madurai City.
... 1st respondent / Complainant 2.K.Sivalakshmi ... 2nd respondent / defacto complainant Common Prayer : Criminal Original Petition is filed under Section 482 of Criminal Procedure Code, to call for the records in C.C No.85 of 2015 on the file of the Additional Mahila Court, (Magisterial Level), Madurai and quash the same as against the petitioners herein.
In both cases For Petitioners : Mr.P.T.Ramesh Raja For Respondents : Mr.A.Robinson, Government Advocate (crl.side) for R1 Mr.P.Mahendran for R2 COMMON ORDER The petitioners are facing trial in C.C No.85 of 2015 on the file of the Additional Mahila Court (Magisterial Level), Madurai for the offences under Sections 498 A, 323 IPC and Section 4 of the Tamil Nadu Dowry Prohibition Act.
2.The first accused is the husband of the defacto complainant. The second accused is the father in law. The third and fourth accused are the brother in law and sister in law. The marriage between the first accused and the defacto complainant had taken place on 08.06.2011 at Palani. A female child Lakshitha was born. The relationship between the parties had come under strain leading to registration of Crime No.1 of 2015 on the file of the AWPS, Madurai City. The case was investigated and final report was filed
and the same was also taken on file in C.C No.85 of 2015 on the file of the Additional Mahila Court (Magisterial Level), Madurai. To quash the same, these criminal original petitions have been filed. 3.The first accused Arumugam is the petitioner in Crl OP(MD) No.6702 of 2016 while the in-laws are the petitioners in Crl OP(MD) No.4864 of 2016. The learned counsel appearing for the petitioners reiterated all the contentions set out in the memorandum of grounds. He points out that the allegation of the defacto complainant as set out in her statement recorded under Section 161 of Cr.PC is that A1 Arumugam had issued divorce notice on 08.11.2014. After receiving the same, when the defacto complainant, her mother and others spoke to the accused, the accused herein had stated that if additional dowry as demanded is not given, the defacto complainant will not be taken back.
4.The petitioners' counsel took me to the reply notice dated 02.12.2014 issued by the defacto complainant. In the reply notice, it has been stated that the first accused had agreed to take the defacto complainant to Dubai and contrary to his assurance, he did not do so. None of the allegations that are subject matter of the impugned prosecution find mention in the said reply notice dated 02.12.2014. The petitioners' counsel also contended that HMOP No.372 of 2016 filed by A1 Arumugam before the Principal Sub Court, Madurai was allowed and the marriage between the parties was dissolved on 06.07.2017. He would also place reliance on an unreported decision of this Court made in Crl OP No.26759 of 2015 dated 10.07.2019. He would submit that the reply notice was marked as an exhibit in HMOP No.
372 of 2015 and that it is an unimpeachable document and this court would be justified in looking into the same. 5.Even though the contentions of the petitioners' counsel are rather attractive, I am not in a position to accept the same. The Hon'ble Supreme Court in the decision reported in 2019 Cri LJ 4513 (Chilakamarthi Venkateswarlu and Ors. vs.
"15.In exercising jurisdiction Under Section 482 it is not permissible for the Court to act as if it were a trial Court. The Court is only to be prima facie satisfied about existence of sufficient ground for proceeding against the Accused. For that limited purpose, the Court can evaluate materials and documents on record, but it cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the Accused. 16.The High Court should not, in exercise of jurisdiction Under Section 482, embark upon an enquiry into whether the evidence is reliable or not, or whether on a reasonable appreciation of the evidence the allegations are not sustainable, for this is the function of the trial Judge. This proposition finds support from the judgment of this Court in Zandu Pharmaceutical Works
Ltd. and Ors. v. Mohd. Sharful Haque and Anr. MANU/SC/0932/2004 : (2005) 1 SCC 122.
17.The High Court may have an obligation to intervene Under Section 482 of the Code in cases where manifest error has been committed by the Magistrate in issuing process despite the fact that the alleged acts did not at all constitute offences. Reference may be made to S.W. Palanitkar and Ors. v. State of Bihar and Anr. MANU/SC/0672/2001 : (2002) 1 SCC 241. However, it is important to remember that while exercising powers under this Section, the High Court does not function as a Court of appeal or revision.
18.The power Under Section 482 of Code of Criminal Procedure should not be exercised to stifle legitimate prosecution. At the same time, if the basic ingredients of the offence alleged are altogether absent, the criminal proceedings may be quashed Under Section 482 of Code of Criminal Procedure."
6.The case of the defacto complainant cannot be disbelieved merely because the allegations that are subject matter of the impugned prosecution do not find mention in the reply notice issued by her counsel in response to the divorce notice issued by the first accused. It must be noted that the marriage between the first accused and the defacto complainant took place in the year 2011 and that a female child was also born through the wedlock. While so, the first accused caused to issue divorce notice in November 2014 ie., 08.11.2014.
Obviously, the intention of the defacto complainant would be somehow to preserve the marriage atleast for the sake of the future of the female child. Therefore, it is quite possible that she did not state everything in her reply dated 02.12.2014. But, when it became clear that the marriage has suffered serious rupture and that her husband is not willing to take care, may be the entire truth came to light and that led to lodging of the FIR on 03.01.2015. In the statement recorded under Section 161 of Cr.Pc, the defacto complainant has naturally stated everything. Therefore, the impugned prosecution cannot be quashed merely on the strength of the reply notice issued by the defacto complainant.
7.At the cost of repetition, I must observe that the reply notice was issued even prior to the lodging of the impugned FIR. In any event, as held by the Hon'ble Supreme Court, the High Court cannot undertake the function of the trial court and appreciate the evidence. The petitioners' case will have to be necessarily established only before the court below. None of the contentions put forth by the petitioners' counsel are sufficient for invoking the inherent powers of this Court under Section 482 of Cr.Pc.
8.The learned counsel for the defacto complainant would submit that the defacto complainant has already filed a maintenance case before the Family Court, Madurai in M.C No.83 of 2016 seeking maintenance for herself and the female child. The learned Family Court Judge shall dispose of the said maintenance case on merits and in accordance with law as expeditiously as possible. 9.Considering the facts and circumstances of the case, the personal appearance of the petitioners is dispensed with. The learned Trial Judge shall not insist the personal appearance of the petitioners unless it is necessary or imperative. Of course, they will have to appear on three occasions, namely, for answering the charges, examination under Section 313 of Cr.PC and at the time of pronouncement of judgment.
On all other occasions, the petitioners shall be represented by their counsel. It is made clear that the court below shall appreciate the evidence of the petitioners totally uninfluenced by any of the observations made in this order. The dismissal of these petitions will not have any bearing on the merits of the matter.
10.The criminal original petitions stand dismissed. Consequently, connected miscellaneous petitions are also stand dismissed.
Sd/- Assistant Registrar () // True Copy // / /2020 Sub Assistant Registrar(CS) Skm To 1.The Additional Mahila Court Judge, (Magisterial Level), Madurai 2.The Inspector of Police, All Women Police Station, Madurai Town, Madurai City.
+2 CC to Mr.P.T.RAMESHRAJA, Advocate ( SR-58[F] dated 02/01/2020 ) +1 CC to Mr.P.MAHENDRAN, Advocate ( SR-235[F] dated 03/01/2020 ) Crl OP(MD)Nos.4864 & 6702 of 2016 and Crl MP(MD)Nos.2417, 2418, 3368 & 3369 of 2016 02.01.2020 VB(26.02.2020) 4P 6C