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P.Sangeetha vs The Inspector Of Police on 4 June, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04.06.2018

Reserved on : 27.04.2018

Pronounced on : 04.06.2018

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl. OP (MD)No.21880 of 2013
and
MP(MD)No.1 of 2013

P.Sangeetha … Petitioner

Vs.

1.The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.
(Ref.Crime No.9/2013).

2.P.Ponnarasi … Respondents

Prayer : This Criminal Original Petition is filed Under Section 482 of
Criminal Procedure Code to call for records in C.C.No.330/2013 on the file of
the Judicial Magistrate, Sivakasi, Virudhunagar District and quash the charge
sheet and consequential further proceedings as against the petitioner.

For Petitioners : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.A.Robinson,
Government Advocate for R1

Mr.N.Dilip Kumar for R12

:ORDER

Heard the learned counsel on either side.

2.This petition has been filed for quashing the proceedings in C.C
No.330 of 2013 on the file of the Judicial Magistrate, Sivakasi insofar as
the petitioner is concerned. The petitioner has been shown as the fourth
accused in the impugned criminal proceedings. The second respondent herein
is admittedly the wife of the first accused Feroz Khan. They were in love
with each other and difficulties arose in view of the inter religious
character of the relationship. Therefore, the local communist party office
bearers stepped in. On 13.05.2004, the marriage between the first accused
and the second respondent herein was solemnized under the provisions of the
Special Marriage Act. Two children were born of the wedlock in the year 2005
and 2007. Both are girl children. But, the first accused Feroz Khan
compelled the second respondent Ponnarasi to convert to Islam. The second
respondent steadfastly refused. Therefore, she was sent away from marital
home.

3.The case of the second respondent is that unable to bear the cruelty
caused to her by the first accused and her in-laws, she lodged a complaint
before the All Women Police Station, Sivakasi on 15.02.2013. Reconciliation
efforts were undertaken. On 23.02.2013, the first accused Feroz Khan left
the cell phone behind and went out. A call came and the second respondent
herein attended to the same. The caller at the other end was a women. The
second respondent herein wanted to know as to who she was. In response
thereto, a voice at the other end stated that it was the second respondent
who was speaking on the mobile of the caller’s husband and wanted to know the
identity of the second respondent. The second respondent told that she was
the wife of the Feroz Khan. When the person speaking on the other end
heard this, she threatened the second respondent that only she alone is the
wife of the Feroz Khan and that if the second respondent repeated her
assertion, she would be done away with.

4.Deeply upset by this development, the second respondent/defacto
complainant went to the house bearing No.25 A, Muslim Nadutheru where the
first accused was residing. The second respondent saw the petitioner along
with Feroz Khan. The second respondent asked her husband Feroz Khan as to
who the petitioner was. Feroz Khan told the second respondent/defacto
complainant that since she refused to convert to Islam, he had chosen to
marry the petitioner herein. The petitioner was originally known as
Sangeetha. She was the daughter of one teacher by name Pandiyarajan and was
converted to Islam and renamed as Umra Fatima on 03.03.2011. After that the
said Feroz Khan got married to the petitioner herein. Thereafter, the
petitioner also told the second respondent that since the second respondent
refused to convert Islam, she had chosen to convert to Islam and marry Feroz
Khan. The petitioner asserted that she alone was the wife of the Feroz Khan
and that if the second respondent did not stay away, she would be done away
with.

5.The second respondent once again took up the matter to the local
communist party office-bearers on 23.02.2013. They enquired the first
accused Feroz Khan. He admitted that he in fact married the petitioner
herein. It was true that the petitioner had converted to Islam and got her
name also changed into an islamic one.

6.The police after conducting their investigation filed final report
against all the four accused. As regards the petitioner herein, final report
was filed under
Sections 494, 506(i) of IPC. As regards the first accused,
final report was filed under
Sections 498(A), 506(i), 406 and 494 of IPC. As
regards the in-laws, the charges were made under
Sections
498(A),
506(i) IPC. The learned Judicial Magistrate, Sivakasi took the
final report on file in C.C No.330 of 2013 and issued notice to the accused.
To quash the same, this criminal original petition came to be filed.

7.The learned counsel appearing for the petitioner pointed out that the
very registration of F.I.R under
Section 494 of IPC is illegal. He would
contend that there has been a mis-joinder of charges in this case. Sections
498 A and 494 of
IPC cannot be clubbed together as far as the petitioner is
concerned. He placed reliance on the decision reported in 2012 -2 ? L.W
(Crl) 584 (
Deepalakshmi vs. K.Murugesh others). He also pointed out that
there is absolutely no legal evidence to show that the petitioner had
contracted marriage with Feroz Khan when the marriage between the Feroz Khan
and the defacto complainant Ponnarasi was in subsistence. He also would
contend that the offence of criminal intimidation was clearly not made out.
The defacto complainant has not anywhere averred that she felt intimidated as
a result of the words uttered by the petitioner herein. In this regard, he
placed reliance on the decision of the Madras High Court reported in 1989 Crl
L.J. 669.

8.The learned counsel appearing for the defacto complainant/second
respondent as well as the learned Government Advocate (Crl.Side) submitted
that this is not a case deserving the invocation of the inherent powers of
this Court for quashing the impugned criminal proceedings. He would submit
that there are sufficient materials on record which prima facie indicating
that the petitioner herein is guilty of the offences under
Sections 506(i)
and
494 r/w 109 IPC.

9.This Court bestowed its anxious consideration to the rival
contentions. It is not in dispute that the defacto complainant is the legally
wedded wife of A1 Feroz Khan. It was the marriage solemnized under the
Special Marriage Act. If the marriage between the first accused Feroz Khan
and the defacto complainant Ponnarasi had taken place under the aegis of
islamic law, then, A1 can contend he is entitled to enter into another
marriage even when his first marriage is subsisting and that he cannot be
said to be guilty of offence under
Section 494 of IPC. But, in this case,
the marriage between the first accused Feroz Khan and Ponnarasi took place
under the provisions of the
Special Marriage Act.

10.Admittedly, the said marriage has not dissolved in the manner known
to law. It is very much in subsistence. Now, the question is whether
during the said subsistence of the first marriage, the said Feroz Khan
entered into a second marriage. The police have recorded the statement of
the defacto complainant under
Section 161(3) Cr.PC. The specific statement
of the second respondent is that by shear chance she attended the call made
by the petitioner herein to the mobile number of the first accused Feroz
Khan and that the petitioner had affirmed that she was the wife of A1.
Thereafter, the second respondent had gone to the premise bearing No.25 A,
Muslim Nadutheru where the first accused was residing. Both the petitioner
and the A1 Feroz Khan were found therein. Feroz Khan as well as the
petitioner herein had told the second respondent herein that since the second
respondent refused to convert to Islam, the petitioner had got married to
Feroz Khan. The petitioner was originally a Hindu. She was known as
Sangeetha. She was the daughter of one teacher by name, Pandiyarajan.
Thereafter, the petitioner underwent conversion to Islam and even got her
name changed as Umra Fatima. There was also a gazette notification in this
regard. There is a clear reference to the gazette notification in the
statement recorded under 161 (3) statement. In the Crl.OP grounds, this has
not been challenged. Therefore, there is enough material to indicate that
the petitioner herein had consciously got married to said Feroz Khan with
full knowledge that the marriage between the first accused and the second
respondent is very much in subsistence.

11.The learned counsel appearing for the defacto complainant placed
reliance on the decision of the Hon’ble Supreme Court reported in (2012) 6
SCC 353 (
Ushaben V. Kishorbhai Chunilal Talpada). The Hon’ble Supreme Court
held that if a complaint contains allegations about commission of offence
under
Section 498A of the IPC which is a cognizable offence, apart from
allegations about the commission of offence under
Section 494 of the IPC, the
court can take cognizance thereof even on a police report. This decision of
the Hon’ble Supreme Court is a clear answer to the contentions raised by the
learned counsel for the petitioner that the Trial Court cannot take
cognizance of both the offences under
Sections 494 as well as 498 of IPC in a
single proceeding. This Court rejects the contention of the petitioner that
the registration of F.I.R is illegal.

12.In this case, the allegations against A1 to A3 on the one hand and
the allegations against the fourth accused on the other cannot be bifurcated.
This Court is of the view that the offences against all the four accused will
have to be tried together. It is true that in the complaint, the second
respondent has not specifically averred that she felt afraid and intimidated
following the utterances of the petitioner herein. The second respondent is
a woman who has been betrayed by her husband. Two girl children were born
of the wedlock. She had been repeatedly pleading with the local office
bearers of the communist party for reconciliation. This Court can easily
come to the conclusion that the second respondent became afraid. This is
evident from her conduct. That the second respondent felt the impact of the
words uttered by the petitioner herein can be inferred from the subsequent
conduct of the second respondent in going to the police station and lodging a
complaint. That itself would show that she felt afraid. This Court is of
the view that no case has been made out for quashing the impugned
proceedings. However, considering the fact that the petitioner is a woman,
this Court directs that the trial magistrate shall insist on the appearance
of the petitioner herein only for answering the charges and at the time of
examination of witnesses under
Section 313 of Cr.PC and at the time of
pronouncing judgement. Except the aforesaid occasions, on other hearing
dates the petitioner can be permitted to be represented through counsel.

13.With this relief regarding dispensing with the personal appearance
of the petitioner, this Criminal Original Petition is dismissed.
Consequently, connected miscellaneous petition is also dismissed.

To

1.The Inspector of Police,
All Women Police Station,
Sivakasi, Virudhunagar District.

(Ref.Crime No.9/2013).

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

.

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