IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :11.12.2017
Dated : 26.06.2018
CORAM:THE HONOURABLE MR. JUSTICE M.S.RAMESH
Crl.O.P.Nos. 14573 of 2017
Crl.O.P.Nos.17112 and 24197 of 2015
1.Dr.Varun Kumar .. Petitioner/A1 in Crl.OP.No.14573/2017
2.V.Kalpana .. Petitioner/A3 in Crl.OP.No.17112/2015
3.R.Veerasekaran .. Petitioner/A2 in Crl.OP.No.24197/2015
1.State rep. by
The Inspector of Police (ADSP)
Central Crime Branch,Egmore, Chennai-600008.
2.G.Priyadharshni ..Respondents in all Crl.O.Ps.
COMMON PRAYER : Criminal Original Petitions filed underneath Section 482 of Cr.P.C., praying to call for a annals in C.C.No.2036 of 2015 on a record of a schooled XI Metropolitan Magistrate, Saidapet, Chennai and to suppress a same.
For Petitioner : Mr.S.Arumuga Raja in Crl.OP. No. 14573 of 2017
Mr.B.Kumar, Sr. Counsel for Mr.A.Jenasenan in Crl.O.P.Nos.17112 24197/ 2015
For Respondent-1 :Mr.C.Iyyappa Raj, APP in all Crl.O.Ps
For Respondent-2 :Mr.R.Sankarasubbu for Mr.V.Sathish in all Crl.OPs
C O M M O N O R D E R
- 1. The petitioners herein have been decorated as indicted in C.C.No.2036 of 2015 on a record of a schooled XI Metropolitan Magistrate, Saidapet, Chennai during a instance of a second respondent’s censure for offences underneath Sections 406, 417, 420, 506(i) IPC, Section 4 of Dowry Prohibition Act, 1961 (herein after referred to as DP Act), Section 4 of Tamil Nadu Prohibition of of Harassment of Women Act, 1998 (herein after referred to as TNPHW Act) and Section 66 of Information Technology Act, 2000 (herein after referred to as IT Act). The postulant in Crl.O.P.No.14573 of 2017 is a son of a petitioners in Crl.O.P.Nos.24197 17112 of 2015.
- 2.The box of a assign in brief is that a defacto complainant and a postulant in Crl.O.P.No.14573 of 2017 had famous any other given 2007, that grown into a promissory attribute to get married. Both of them, had enrolled themselves in an IAS Training Academy during New Delhi and given a defacto complainant did not transparent her rough examination, she had stayed behind in New Delhi for a duration of one year for aiding Dr.Varun Kumar to ready for his categorical examination. The attribute between a defacto complainant and Dr.Varun Kumar was supposed by both their particular family members and it was jointly resolved that a parties will get married in a year 2012. During their stay during New Delhi, a defacto complainant had affianced her jewelleries value some-more than Rs.1 lakh to assistance Dr.Varun Kumar financially for a credentials of his interview. After a talk in a month of Apr 2011, a opinion of all a petitioners herein altered and they had demanded a sum of Rs.50 lakhs in cash, 2 kgs of bullion and a BMW Car for Dr.Varun Kumar on a belligerent that he was an IPS officer. When a defacto complainant had voiced her inability to accommodate a dowry demand, their attribute pennyless and became strained. Dr.Varun Kumar had afterwards deleted a mails sent by his father to a defacto complainant in sequence to erase all a evidences of their relationships. In viewpoint of a dowry direct by all a petitioners herein and a disaster to marry her discordant to a guarantee as good as a cruelty meted out to her, a petitioners herein have been charged for a offences underneath Sections 406, 417, 420, 506(i) IPC, Section 4 of Dowry Prohibition Act, 1961, Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 and Section 66 of Information Technology Act, 2000, that record is underneath plea in a benefaction petitions.
- 3.Heard Mr.B.Kumar, schooled Senior warn for a petitioners (in Crl.O.P.Nos.17112 24197 of 2015), Mr.G.Arumugaraja (in Crl.O.P.No.14573 of 2017) and Mr.C.Iyyapparaj, schooled Additional Public Prosecutor for a initial respondent as good as Mr.R.Sankarasubbu, schooled warn for a second respondent in all a petitions.
- 4.Mr.B.Kumar, schooled Senior warn appearing for a petitioners submitted that a statements of a witnesses and a papers filed on by a assign does not exhibit a elect of any corruption and as such, a framing of charges opposite a petitioners itself is probable to be quashed. By relying on a matter of a witnesses and a documents, a schooled Senior warn submitted that nothing of a offences for that a petitioners have been charged is finished out. In support of his contention, a schooled Senior warn relied on a applicable supplies of a offences for that they have been charged and several judgments of a Hon’ble Apex Court as good as a High Courts and submitted that there is no legally tolerable charges finished out as opposite a petitioners. He offer submitted that a petitioner/Dr.Varun Kumar herein is a tip ranking IPS officer and that a rapist censure has been finished as a fight for a purpose of deleterious his reputation. He would also contention that a postulant Dr.Varun Kumar as good as a defacto complainant had, during pendency of a investigation/framing of charges, had got married to third persons of their possess choices and that it would not be suitable to ensue with a case.
- 5.Mr.G.Arumugaraja, schooled warn for a postulant in Crl.O.P.No.14573 of 2017 had adopted a averments finished by a schooled Senior warn for a petitioners in Crl.O.P.Nos.17112 24197 of 2015.
- 6.Mr.Sankarasubbu, schooled warn appearing for a second respondent/defacto complainant submitted that all a petitioners herein had willfully cheated and cheated a defacto complainant with a guarantee to have her married to Dr.Varun Kumar. In viewpoint of such a promise, a defacto complainant had also sacrificed her whole career by aiding Dr.Varun Kumar to write his polite services hearing and she was also widely introduced to family friends and kin of both a parties as a fiancee of Dr.Varun Kumar, yet had after forsaken a matrimony proposal. The schooled warn also submitted that a petitioners herein had demanded dowry to a balance of Rs.50 lakhs, 2 kgs of bullion and one BMW automobile as a pre-condition for a marriage. In viewpoint of a dowry direct as good as for carrying cheated a defacto complainant, this Court should not perform a ask of a petitioners herein seeking for quashing a charges. The schooled warn also submitted that a successive events of a defacto complainant married to some other chairman will have no temperament in a box and that a hearing Court should take a possess march for entrance to a satisfactory and giveaway conclusion.
- 7.The schooled Additional Public Prosecutor appearing for a initial respondent submitted that a charges have been duly framed formed on a statements of several witnesses accessible underneath Section 161(3) of Cr.P.C., as good as certain other element documents. Since a offences have been clearly finished out, a scold chance would be to assent a hearing Court to get along with a box and if during all a petitioners are aggrieved, it is always open to them to settle their ignorance during a march of trial.
- 8.I have given clever considerations to a submissions finished by a particular counsels.
- 9.It is not in brawl that a defacto complainant and Dr.Varun Kumar had a adore event even before to his clearing of his polite services examination. It is conjunction a box of a defacto complainant nor a petitioners that Dr.Varun Kumar and a defacto complainant were vital together or had endangered in earthy relationship. The protest of a defacto complainant is that there was a guarantee from a petitioners for her matrimony with Dr.Varun Kumar, that guarantee was retracted and a direct of dowry was finished as a pre- condition for her matrimony with him. Her censure came to be investigated and a respondents have been assign sheeted for offences underneath Sections 417 , 204, 506(i) IPC, Section 4 of DP Act r/w.34 of IPC, Section 4 of TNPHW Act and Section 66 of IT Act. By relying on a particular definitions of a offences for that a petitioners have been charged, a schooled Senior warn for a petitioners submitted that a mixture for forming these offences are conspicuously absent and as such, a offences are not finished out. For a outcome of convenience, a applicable supplies of all a offences for that a petitioners have been charged are extracted herein:
- 417. Punishment for intrigue Whoever cheats shall be punished with seizure of presumably outline for a tenure that might extend to one year, or with fine, or with both.
- 204. Destruction of request to forestall a prolongation as justification Whoever secretes or destroys any request that he might be rightly compelled to furnish as justification in a Court of Justice, or in any move rightly reason before a open servant, as such, or obligates or renders unreadable a whole or any partial of such request with a goal of impediment a same from being constructed or used as justification before such Court or open menial as aforesaid, or after he shall have been rightly summoned or compulsory to furnish a same for that purpose, shall be punished with seizure of presumably outline for a tenure that might extend to dual years, or with fine, or with both.
- 506. Punishment for rapist danger Whoever commits, a corruption of rapist danger shall be punished with seizure of presumably outline for a tenure that might extend to dual years, or with fine, or with both; If hazard be to means genocide or disgusting hurt, etc.and if a hazard be to means genocide or disgusting hurt, or to means a drop of any skill by fire, or to means an corruption punishable with genocide or seizure for life, or with seizure for a tenure that might extend to 7 years, or to impute, unchastity to a woman, shall be punished with seizure of presumably outline for a tenure that might extend to 7 years, or with fine, or with both.
- Section 4 of DP Act:[4. Penalty for perfectionist dowry.If any chairman demands, directly or indirectly, from a kin or other kin or defender of a bride or bridegroom, as a box might be, any dowry, he shall be punishable with seizure for a tenure that shall not be reduction than 6 months, yet that might extend to dual years and with excellent that might extend to 10 thousand rupees:
- Provided that a Court may, for adequate and special reasons to be mentioned in a judgment, levy a visualisation of seizure for a tenure of reduction than 6 months.] Section 4 of TNPHW Act, 1998 reads as follows: chastisement for (harassment or woman)-whoever commits or participates in or abets (harassment of woman) in or within a precincts of any educational institution, church or other place of worship, train stop, road, railway station, cinema theatre, part, beach, place of festival, open use car or vessel or any other place shall be punished with seizure for a tenure that might extend to 3 years and with excellent that shall not be reduction than thousand rupees. Section 4 enjoins chastisement for nuisance of lady and a difference ‘any place’ by a conjoint reading of Sections 3 and 4 of a Act indicate out that wherever a occurrence takes place it refers to a same and therefore, it relates to a private home house/place.
- Section 66 of IT Act: If any person, dishonestly or fraudulently, does any act referred to in territory 43, he shall be punishable with seizure for a tenure that might extend to 3 years or with excellent that might extend to 5 lakh rupees or with both.
- 10.Insofar as a corruption of intrigue is concerned, a box of a prosecution, as evidenced in a assign sheet, is that Dr.Varun Kumar had a adore event with a defacto complainant with a guarantee to marry her and all a petitioners had positive a defacto complainant about her matrimony with Dr.Varun Kumar and subsequently cheated her by not removing him married to her. The core emanate that needs to be addressed in sequence to weigh as to presumably a corruption of intrigue has been finished out or not is as to presumably a dishonesty was during a pregnancy itself and hence presumably earnest to marry and violation such a guarantee would volume to an act of cheating. Section 415 of IPC defines intrigue as follows:
- Whoever, by deceiving any person, fraudulently or dishonestly induces a chairman so cheated to broach any skill to any person, or to agree that any chairman shall keep any property, or intentionally induces a chairman so cheated to do or replace to do anything that he would not do or replace if he were not so deceived, and that act or repudiation causes or is expected to means repairs or mistreat to that chairman in body, mind, repute or property, is pronounced to “cheat”.
- 11.It is a good determined law that in sequence to consecrate a corruption of cheating, a dishonesty forked out in a clarification of intrigue should be during a pregnancy itself. In other words, Dr.Varun Kumar ought to have had a adore event with no goal of marrying a defacto complainant and secretly make her faith that he dictated to marry her. It is not a box of a defacto complainant nor is a matter of any of a witnesses that when Dr.Varun Kumar got introduced to defacto complainant, he had a belligerent of carrying a adore event yet an goal of removing married to her. On a contrary, it is a box of a defacto complainant as good as a witnesses that Dr.Varun Kumar as good as his family members recognized and introduced her as his fiance to their kin and friends. In a deficiency of any element to settle that Dr.Varun Kumar had no goal of removing married when both had commenced a adore affair, it can't be pronounced that a purported dishonesty was during a pregnancy itself and hence, a corruption of cheating, as tangible underneath Section 415 IPC, will not be finished out.
- 12.Yet another underline to consecrate a corruption of intrigue is that a goal to mistreat contingency be finished fraudulently or dishonestly. Even as per a chronicle of a defacto complainant as good as a statements of a witnesses, a defacto complainant and Dr.Varun Kumar were jointly in adore with any other and that during that time, Dr.Varun Kumar had no goal of violation a purported guarantee to marry her. While that being a case, a doubt of prejudiced or fake provocation does not arise. In other words, such purported dishonesty was also not conscious as per a chronicle of all a witnesses.
- 13.The Hon’ble Apex Court in a visualisation in G.V.Rao Vs. L.H.V. Prasad and others reported in 2000 (3) SCC 693 had an arise to describe a commentary on this aspect, that are extracted below:
- 4.Cheating is tangible in Section 415 of a Indian Penal Code that provides as under:-
- “415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces a chairman so cheated to broach any skill to any person, or to agree that any chairman shall keep any property, or intentionally induces a chairman so cheated to do or replace to do anything that he would not do or replace if he were not so deceived, and that act or repudiation causes or is expected to means repairs or mistreat to that chairman in body, mind, repute or property, is pronounced to “cheat”.
- Explanation.- A prejudiced dissimulation of contribution is a dishonesty within a clarification of this section.”
- 5.The High Court quashed a record predominantly on a belligerent that Chapter XVII of a Indian Penal Code deals with a offences opposite properties and, therefore, Section 415 contingency also indispensably describe to a skill which, in a benefaction case, is not endangered and, consequently, a FIR was probable to be quashed. The extended tender on that a High Court proceeded is not correct. While a initial partial of a defition relates to property, a second partial need not indispensably describe to property. The second partial is reproduced below:-
- “415………intentionally induces a chairman so cheated to do or replace to do anything that he would not do or replace if he were not so deceived, and that act or repudiation causes or is expected to means repairs or mistreat to that chairman in body, mind, repute or property, is pronounced to “cheat”.”
- 6.This partial speaks of conscious dishonesty that contingency be dictated not usually to prove a chairman cheated to do or replace to do something yet also to means repairs or mistreat to that chairman in body, mind, repute or property. The conscious dishonesty presupposes a existence of a widespread belligerent of a chairman origination a inducement. Such provocation should have led a chairman cheated or prompted to do or replace to do anything that he would not have finished or wanting to do if he were not deceived. The offer requirement is that such act or repudiation should have caused repairs or mistreat to body, mind, repute or property.
- 7.As mentioned above, Section 415 has dual parts. While in a initial part, a chairman contingency “dishonestly” or “fraudulently” prove a complainant to broach any property; in a second part, a chairman should intentionally prove a complainant to do or replace to do a thing. That is to say, in a initial part, provocation contingency be prejudiced or fraudulent. In a second part, a provocation should be intentional. As celebrated by this Court in Jaswantrai Manilal Akhaney vs. State of Bombay, AIR 1956 SC 575 = 1956 Crl.L.J. 1611 = 1956 SCR 483, a guilty goal is an essential partial of a corruption of cheating. In order, therefore, to secure self-assurance of a chairman for a corruption of cheating, “mens rea” on a partial of that person, contingency be established. It was also celebrated inMahadeo Prasad vs. State of West Bengal, AIR 1954 SC 724 = 1954 Cr.L.J. 1806, that in sequence to consecrate a corruption of cheating, a goal to mistreat should be in existence during a time when a provocation was offered.
- 8.Thus, so distant as second partial of Section 415 is concerned, “property”, during no stage, is involved. Here it is a doing of an act or repudiation to do an act by a complainant, as a outcome of conscious provocation by a accused, that is material. Such provocation should outcome in a doing of an act or repudiation to do an act as a outcome of that a chairman endangered should have suffered or was expected to humour repairs or mistreat in body, mind, repute or property. In an aged preference of a Allahabad High Court in Empress v. Sheoram and another, (1882) 2 AWN 237, it was reason by Mahmood, J.:-
- “That to palm off a immature lady as belonging to a standing opposite to a one to that she unequivocally belongs, with a vigilant of receiving money, amounts to a corruption of intrigue by personation as tangible in s.416 of a Indian Penal Code, that contingency be review in a light of a preceding, s.415.”
- 9.In an another aged preference in Queen-Empress v. Ramka Kom Sadhu, ILR (1887) 2 Bombay 59, it was reason that a prostitute might be charged for intrigue underneath Section 417 if a retort was prompted by any falsification on her partial that she did not humour from syphilis.
- 10.In Queen vs. Dabee Singh and others, (1867) Weekly Reporter (Crl.) 55, a Calcutta High Court convicted a chairman underneath Section 417 who had brought dual girls and palmed them off as women of a many aloft standing than they unequivocally were and married to dual Rajputs after receiving common bonus. It was offer reason that a dual Rajputs who married a dual girls on a faith that they were marrying women of their possess standing and status, were fraudulently and dishonestly prompted by dishonesty to do a thing (that is to say, to marry women of a standing unconditionally taboo to them) that yet for a dishonesty practised on them by a accused, they would have wanting to do. In another box that was roughly identical to a one mentioned above, namely, Queen vs. Puddomonie Boistobee, (1866) 5 Weekly Reporter (Crl.) 98, a chairman was prompted to partial with his income and to agreement matrimony underneath a fake sense that a lady he was marrying was a Brahminee. The chairman who prompted a complainant into marrying that lady was reason probable for punishment underneath Section 417 IPC.
- 14.Insofar as a box of a assign that, a guarantee to marry and successive withdrawal of a guarantee would volume to intrigue is concerned, a Division Bench of a Calcutta High Court in Cri. Appeal No.351 of 1998 [Abhoy Pradhan V. State of West Bengal] reported in 1999 Cri. L.J.3534 had reason that a same would not volume to intrigue given there was conjunction dishonesty nor a origination of a misconceptional contribution in a minds of a respondent. The applicable apportionment of a sequence reads as follows:
- 15.Now, schooled Additional P.P. offer drew a courtesy to Section 90, I.P.C. According to him, a appellant finished a fake guarantee to PW 1 that he would marry her and by origination such fake guarantee he combined a myth in her mind and as a complainant was underneath a myth of fact and also that appellant knew or had reasons to trust during that time that complainant gave such agree in outcome of such myth it contingency be reason that a consent, if any, given by a complainant, was not during all a agree contemplated underneath several supplies of a Penal Code. Learned Additional P.P. offer contended that such fake representation/assurance/promise with trust shawl a same was false, amounted to a dishonesty within a clarification of Section 415, I.P.C. There-after, schooled Additional P.P. offer contended shawl a aforesaid acts amounted to offences of rape and intrigue and a allegations finished by a complainant in her censure as good as in her deposition do all a essential mixture of a pronounced offences.
- 16.We find from a censure as good as from a justification on record that a appellant unequivocally wanted to marry a complainant. When he due to marry a complainant, his kin assaulted him and gathering him out from their house. From these facts, we are incompetent to reason that appellant finished any fake promise/representation/assurance to a complainant with trust that such guarantee /representation/assurance was fake in any manner. On a discordant we find that it is a specific box of a complainant as staid by her in her censure as good as in her deposition that a appellant was all by critical and frank to marry a complainant. This successive disaster to marry a complainant does not infer that when he finished such promise/ representation/assurance, same were finished with trust that such guarantee /assurance/representation were false. Otherwise, a really eminence between typical crack of promise/contract and a corruption of intrigue would disappear. We are, therefore, of a organisation opinion that a contribution attributed to a appellant do not volume to any try to emanate any fake source of contribution in a mind of a complainant or that a appellant during that time had any goal to mistreat a complainant. In viewpoint of a aforesaid transparent admissions finished by a complainant in many evident terms in her censure as good as in her deposition, we are compelled to reason that appellant never practised any dishonesty on a complainant nor did he make any try to emanate some fake source of contribution in a mind of a complainant. This being so, we have positively no perplexity in a mind to reason that a appellant conjunction committed a corruption of rape nor any corruption of intrigue as tangible in Sections 375 and 420, I.P.C. Respectively. From successive disaster of a appellant to marry a complainant we can't burst to a end that a dishonesty preceded a tangible transaction i.e. a purported intercourse. For a same reason, we can't burst to a end that a complainant gave her agree underneath a myth of fact or that a appellant did such act with trust or during slightest had reasons to trust that a agree was given in outcome of such misconception. Therefore, even if a allegations finished by a complainant in her censure and deposition are found to be true, nonetheless they do not make out any corruption of rape or intrigue and hence, outcome of shame returned by a hearing Court can't be sustained.
- 15.Following a aforesaid visualisation of a Hon’ble Division Bench, a schooled Judge of this Court also had taken a identical viewpoint in Crl.O.P.No.1273 of 2011 [K.U.Prabhu Raj V. State rep. by a Inspector of Police, AWPS, Tambaram and another reported in 2012 (3) MWN (Cr.) 14], that reads as hereunder:-
- 16.A cursory examination of a above sustenance would make it transparent that there are atleast 3 essential mixture forming an corruption of intrigue that should be finished out from a materials accessible on record. They are as follows:-
- (1)Deception of any person;
- (2) Fraudulently or dishonestly inducing that person
- (i)to broach any skill to any chairman or;
- (ii) to agree that any chairman shall keep any property, or and (3) Intentionally inducing that chairman to do or replace to do anything that he would not do or replace if he were not so deceived, and that act or repudiation causes or is expected to means repairs or mistreat to that chairman in body, mind, repute or property.
- 17.The schooled warn for a second respondent would offer contention that a corruption endangered in this box falls within a ambit of a third prong of Section 415 I.P.C as enumerated above. According to a schooled counsel, yet for a guarantee finished by a petitioner, a daughter of a second respondent would have married someone-else and staid down in her life. Thus, according to him, a postulant has committed a transparent corruption of cheating. In my deliberate opinion, it is not so. As has been reason by a Division Bench of a Calcutta High Court in Abhoy Pradhan v. State of W.B box (cited supra), small guarantee to marry and after on withdrawing a pronounced guarantee will not volume to an corruption of intrigue during all. On such fake guarantee to marry, a chairman to whom such guarantee was finished should have finished or wanting to do something that he would not finished or wanting to do yet for a deception. In this case, absolutely, there are no materials accessible on record to uncover that given of a guarantee finished by a petitioner, a daughter of a second respondent has finished anything or wanting to do something that has a bent to means repairs or mistreat to a physique or mind or repute or skill of a daughter of a second respondent. In a deficiency of a same, a whole allegations found in a records, in my deliberate opinion, would not make out an corruption underneath Section 417 or 420 I.P.C., during all.
- 18.In G.V.Rao v. L.H.V Prasad and others case, (cited supra), a Hon’ble Supreme Court has reason that there should have been inducement, presumably dishonestly or fraudulently, and given of such inducement, a chairman prompted should have finished or wanting to do something that she would not have differently finished or wanting to do. As we have already stated, in this case, positively there is no such element on record to prove a above requirement.
- 16.In G.V.Rao v. L.H.V Prasad and others case, (cited supra), a Hon’ble Supreme Court has reason that there should have been inducement, presumably dishonestly or fraudulently and given of such inducement, a chairman prompted should have finished or wanting to do something that he would not have differently finished or wanting to do. As we have already stated, there is positively no such element on record or relied by a assign to prove a above requirement. In viewpoint of a aforesaid observations, we am of a viewpoint that a corruption of intrigue as tangible underneath Section 417 IPC has not been finished out opposite these petitioners.
- 17.Incidentally, there is counterbalance in a chronicle of a assign case, with courtesy to a assign for a corruption of cheating. While charging a petitioners for a offences underneath Section 417, it is their box that there was a guarantee to marry and successive withdrawal of a promise. However, while charging a postulant underneath a DP Act, a box of a assign is that a matrimony came to be cancelled in viewpoint of direct of dowry and a defacto complainant’s non correspondence of a demand. If a after chronicle is supposed as such, a corruption underneath Section 417 will also not be finished out.
- 18.Insofar as a Section 204 IPC that is a subsequent territory in that Dr.Varun Kumar has been charged is concerned, on a plain reading of a section, it is seen that a corruption pertains to drop of electronic justification for a purpose of preventing a prolongation as an evidence. The box of a assign is that when Dr.Varun Kumar had constructed a mobile phone, a IMEI numbers of a mobile phones in a call information record and IMEI of a phones submitted by him did not tally. It is not a box of a assign that Dr.Varun Kumar had broken a electronic justification that could be constructed in a Court of law, that is an essential partial to consecrate this offence. In a deficiency of this ingredient, it can usually be resolved that a corruption underneath Section 204 IPC is not finished out. Consequently, it can usually be reason that Dr.Varun Kumar has been baselessly charged for a corruption underneath Section 204 IPC.
- 19.With courtesy to a corruption underneath Section 506(i) IPC is concerned, in sequence to consecrate a rapist intimidation, hazard by a indicted should be finished to means alarm to any other chairman or make a chairman to do an act that he is not legally firm to do and clamp versa. Section 503 IPC defines rapist danger as follows:
- 503. Criminal danger Whoever threatens another with any damage to his person, repute or property, or to a chairman or repute of any one in whom that chairman is interested, with vigilant to means alarm to that person, or to means that chairman to do any act that he is not legally firm to do, or to replace to do any act that that chairman is legally entitled to do, as a means of avoiding a execution of such threat, commits rapist intimidation.
- 20.In a benefaction case, a assign had charged Dr.Varun Kumar for a corruption underneath Section 506(i) IPC given he had allegedly sensitive a respondent that he dictated to marry a lady of IPS cadre and that if she reveals their affair, he would spoil a repute of a second respondent/defacto complainant and her family members. In sequence to attract a mixture of Section 506 IPC, a goal of a indicted contingency be to means alarm to a plant and small countenance of a difference yet goal to means alarm would not be sufficient. In sequence to consecrate an corruption underneath Section 506 IPC, it contingency be clearly determined that a chairman charged, indeed threatened or harmed a chairman with an goal to means alarm. In a benefaction case, a box of a assign is that when a defacto complainant had called Dr.Varun Kumar to pronounce about her matrimony with him, he had allegedly retaliated by observant that he would spoil her reputation. Such an act can usually be deemed to be an countenance of difference yet any goal to means alarm and as such, a corruption underneath Section 506 will not be finished out.
- 21.So distant as a corruption underneath Section 4 of DP Act r/w.34 of IPC is concerned, formed on a censure of a defacto complainant, a District Social Welfare Officer (Dowry Prohibition Officer) was called on to contention a news by conducting an enquiry. Pursuant to a same, a District Social Welfare Officer had conducted a scold enquiry by summoning a petitioners, a defacto complainant as good as other witnesses. Enquiry was conducted on several dates between 24.01.2012 to 21.03.2012. After due care of a evidences and proofs, a District Social Welfare Officer, by an sequence antiquated 23.04.2012 reason that there was no explanation recording a direct of dowry and that there would be other reasons for a mangle in adore between Dr.Varun Kumar and a second respondent herein. Though a Investigation Officer had referred to a news of a District Social Welfare Officer, a same was not filed along with a final report. As a matter of fact, when a FIR came to be registered, a supplies of a DP Act was not invoked in viewpoint of a disastrous news of a District Social Welfare Officer. Under Section 8(B)(2)(c) of a DP Act, 1961 and Rules 4 5 of a DP Act, it is imperative for a Dowry Prohibition Officer to collect justification for a persons committing a corruption underneath a Act. This orthodox requirement was not complied with by a assign during a time of filing of final report. As such, a matter of a schooled Senior warn appearing for a petitioners that a assign has designedly suppressed a news of a Dowry Prohibition Officer, gains inflection and hence it can usually be resolved that had a assign taken a news of a Dowry Prohibition Officer into account, a inclusion of a corruption underneath DP Act would have been dropped.
- 22.That apart, a matter of a witnesses with courtesy to a direct of dowry are deceptive and lacks sum with courtesy to a place and time of a demand. While traffic with such deceptive allegations in a assign sheet, a Hon’ble High Court in a visualisation in Swapnil and others V. State of Madhya Pradesh reported in 2014 (13) SCC 567 reason as follows:
- 10.The initial appellant and second respondent had in fact solemnized their matrimony during Arya Samaj Mandir on 16.06.2007 privately, as they were staid to be in adore with any other for sometime. Thereafter only, in a participation of a family members, matrimony was solemnized on 24.06.2009. It has to be seen that admittedly a second respondent has been vital alone given April, 2011. Thereafter, she had lodged a censure on 07.09.2011 before a really same military station. The same was duly enquired into and it was sealed saying that a brawl is indeed between a families that are to be differently staid in authorised proceedings. If there are such differences between families that are to be staid in authorised proceedings, how such differences would consecrate and give arise to a successful assign underneath Sections 498A or 506 IPC or underneath Section 4 of a Dowry Prohibition Act, 1961, is a essential question.
- 11. The second respondent has been vital alone given April, 2011and hence, there is no doubt of any violence by a appellants as purported by her. The attribute carrying got stretched ever given April, 2011, even focus for compensation of conjugal rights carrying been cold on 16.04.2012 as a second respondent was not meddlesome to live together, it is formidable to trust that there is still a direct for dowry on 30.04.2012 joined with rapist intimidation. The allegations are deceptive and bereft of a sum as to a place and a time of a incident. We had called for a annals and have left by a same. The materials before a schooled Judicial Magistrate First Class, Indore are not sufficient to form an opinion that there is belligerent for supposed that a indicted appellants have committed a corruption underneath a charged Sections. The Additional Sessions Court and a High Court missed these essential points while deliberation a petition filed by a appellants underneath Section 397 and Section 482 of a Cr.PC respectively. The potential vigilant behind a sore assign is apparently to harass a appellants. We are, hence, of a viewpoint that a impugned assign is unconditionally unfounded.
- 12.Therefore, to secure a ends of probity and for preventing abuse of a routine of a rapist court, a charges framed by a Judicial Magistrate First Class, Indore in Criminal Case No. 10245 of 2012 opposite a indicted appellants are quashed.
- 23.The petitioners have also been charged for an corruption underneath Section 4 of TNPHW Act. In sequence to consecrate an corruption underneath Section 4 of a TNPHW Act, a occurrence should be committed in a open place or establishment referred to, in a section. In a censure of a respondent, there is no such discuss about nuisance in a open place or private domain of Dr.Varun Kumar and nothing of a witnesses have oral so. Even as per a clarification of nuisance underneath Section 2(a) of a pronounced Act, there is no justification in any of a matter of a witnesses to a outcome that a petitioners had endangered themselves in any faulty control or act opposite a respondents. A schooled Judge of this Court had an arise to understanding on this emanate in a visualisation in S.Selva Kumar V. State by a Inspector of Police, AWPS, Keelakarai, Ramanathapuram District and another reported in 2015 (2) MWN Cr. 195 wherein, he had celebrated as follows:
- 10. Coming to Section 4 of Tamil Nadu Prohibition of Harassment of Women (amended) Enforcement Act, 2002, this Court is of a viewpoint that there is no sufficient element to assign a postulant underneath Section 4 of Tamil Nadu Prohibition of Harassment of Women (amended) Enforcement Act, 2002. Thus, in a deficiency of any attracting material, a pronounced corruption is also finished out.
- 11. Considering a range of 506(i) of a Indian Penal Code in Srinivasan Vs. State by Sub Inspector of Police reported in 2009 (4) MLJ (Crl) 1118, in divide No.11, this Court has reason in a following manner:-
- 11.In sequence to attract a mixture of Section 506 of IPC, a goal of a indicted contingency be to means alarm to a victim. Mere countenance of difference yet any goal to means alarm would not suffice. To consecrate an corruption underneath Section 506 of IPC it contingency be shown that a chairman charged indeed threatened another with damage to his person, repute or skill with an goal to means alarm.
- 12. In Rajan Vs. State, rep. By Inspector of military reported in 2008 (2) MWN (Cr.) 258, after holding note of a preference rendered by a High Court of Punjab and Haryana, this Court has reason in a following manner:-
- 10. In a identical case, a Punjab and Haryana High Court quashed a record in honour of a corruption underneath Section 506(ii) IPC in a box in Usha Bala Vs. State of Punjab (PH), 2002 (2) C.C.Cases 320 (P H), that, Empty threats does not prima facie meant that a box underneath Section 506, IPC is finished out opposite a petitioner. Hence, in face no box is finished out opposite a petitioner.
- Consequently, FIR No.313, antiquated 15.07.1999 underneath Section 406/498-A, IPC of military station, Sadar, Patiala is quashed qua a postulant only.
- 11.It is seen even in a benefaction case, solely a deceptive and bald claim of rapist intimidation, a defacto complainant has not staid that there was any hazard to his life or sought for any military protection. Therefore, this Court is of a deliberate viewpoint that even a corruption underneath Section 506(i), I.P.C is not maintainable. In viewpoint of a same, it can usually be reason that inclusion of a corruption underneath Section 4 of TNPHW Act is misconceived.
- 24.The final corruption for that a petitioners have been charged is one underneath Section 66 of a Information Technology Act, 2008. In sequence to consecrate an corruption underneath Section 66 of a IT Act, it is imperative that such a assign could be usually on a systematic or a cyber crime lab news formed on a justification of Cybercrime Lab of a Forensic Department. In a benefaction case, a Cybercrime Forensic Department has reported that no hacking collection were used in a laptops. Even a e-mail perceived from a use providers and a email horde indicates that there was no crack of a complainant’s email. However, unaware a news of a cyber crime lab of a Forensic Department, a petitioners have been charged for an corruption underneath Section 66 of a Information Technology Act 2008 and as such, a inclusion of this sustenance in a assign piece is also baseless.
- 25.In viewpoint of a foregoing observations, it is manifestly transparent that nothing of a offences for that a petitioners have been charged with, has been clearly finished out. As forked out in a enquiry news of a District Social Welfare Officer, there could have been many other reasons for a mangle of a adore event between Dr.Varun Kumar and defacto complainant and by needing a hearing Court to ensue with a rapist hearing opposite all a petitioners herein would usually irritate a ill feelings among a parties and would positively means critical influence to a petitioners. In a visualisation in a box of State of Haryana vs. Bhajan Lal reported in 1992 SCC (Cri.) 426, a Hon’ble Apex Court had dealt with a range for division of a High Court sportive a powers underneath Section 482 Cr.P.C. wherein scholastic examples were laid down in cases where a High Courts would be fit in interfering and quashing a proceedings. One such painting enabling a High Court to practice a powers underneath Section 482 Cr.P.C., is where a rapist record is manifestly attended with malafide and/or where a move is maliciously instituted with an distant belligerent for wreaking reprisal on a indicted and with a viewpoint to annoy him due to private and personal grudge. Following a aforesaid principle, a Hon’ble Supreme Court in a after visualisation in Sunder Babu and others V. State of Tamil Nadu reported in 2009 (14) SCC 244 reason as follows:
- 7.Though a range for division while sportive office underneath Sec.482 Cr.P.C. is limited, yet it can be finished in cases as spelt out in a box of Bhajan Lal. The scholastic examples laid down therein are as follows:
- 1)Where a allegations finished in a initial information news or a complaint, even if they are taken during their face value and supposed in their entirety do not prima facie consecrate any corruption or make out a box opposite a accused.
- 2)Where a allegations in a initial information news and other materials, if any, concomitant a FIR do not divulge a cognizable offence, justifying an review by military officers underneath Sec.156(1) of a Code solely underneath an sequence of a Magistrate within a strech of Sec.155(2) of a Code.
- 3)Where a uncontroverted allegations finished in a FIR or censure and a justification collected in support of a same do not divulge a elect of any corruption and make out a box opposite a accused.
- 4)Where, a allegations in a FIR do not consecrate a cognizable corruption yet consecrate usually a non-cognizable offence, no review is available by a military officer yet an sequence of a Magistrate as contemplated underneath Sec. 155 (2) of a Code.
- 5)Where a allegations finished in a FIR or censure are so absurd and inherently unusual on a basement of that no advantageous chairman can ever strech a usually end that there is sufficient belligerent for move opposite a accused.
- 6)Where there is an demonstrate authorised bar engrafted in any of a supplies of a Code or a endangered Act (under that a rapist move is instituted) to a establishment and continuation of a record and/or where there is a specific sustenance in a Code or a endangered Act, providing influential calibrate for a protest of a depressed party.
- 7)Where a rapist move is manifestly attended with mala fide and/or where a move is maliciously instituted with an distant belligerent for wreaking reprisal on a indicted and with a viewpoint to annoy him due to private and personal grudge.”
- Even a cursory examination of a censure shows that a box during palm falls within a difficulty (7) of a scholastic parameters highlighted in Bhajan Lal’s box (supra).
- 8.The parameters for practice of energy underneath Sec.482 have been laid down by this Court in several cases.
- 19.The Section does not consult any new energy on a High Court. It usually saves a fundamental energy that a Court hexed before a dramatization of a Code. It envisages 3 resources underneath that a fundamental office might be exercised, namely, (i) to give outcome to an sequence underneath a Code, (ii) to forestall abuse of a routine of court, and (iii) to differently secure a ends of justice. It is conjunction probable nor fascinating to lay down any resistant sequence that would oversee a practice of fundamental jurisdiction. No legislative dramatization traffic with procession can yield for all cases that might presumably arise. Courts, therefore, have fundamental powers detached from demonstrate supplies of law that are required for scold liberate of functions and duties imposed on them by law. That is a doctrine that finds countenance in a territory that merely recognizes and preserves fundamental powers of a High Courts. All courts, presumably polite or rapist possess, in a deficiency of any demonstrate provision, as fundamental in their constitution, all such powers as are required to do a right and to remove a wrong in march of administration of probity on a element “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when a law gives a chairman anything it gives him that yet that it can't exist). While sportive powers underneath a section, a probity does not duty as a probity of interest or revision. Inherent office underneath a territory yet far-reaching has to be exercised sparingly, delicately and with counsel and usually when such practice is fit by a tests privately laid down in a territory itself. It is to be exercised ex debito justitiae to do genuine and estimable probity for a administration of that alone courts exist. Authority of a probity exists for enrichment of probity and if any try is finished to abuse that management so as to furnish injustice, a probity has energy to forestall abuse. It would be an abuse of routine of a probity to concede any movement that would outcome in misapplication and forestall graduation of justice. In practice of a powers probity would be fit to suppress any move if it finds that initiation/continuance of it amounts to abuse of a routine of probity or quashing of these record would differently offer a ends of justice.
- 20.As remarkable above, a powers hexed by a High Court underneath Sec.482 of a Code are really far-reaching and a really saturation of a energy requires good counsel in a exercise. Court contingency be clever to see that a preference in practice of this energy is formed on sound principles. The fundamental energy should not be exercised to suppress a legitimate prosecution. The High Court being a top probity of a State should routinely refrain from giving a prima facie preference in a box where a whole contribution are deficient and hazy, some-more so when a justification has not been collected and constructed before a Court and a issues involved, presumably significant or legal, are of bulk and can't be seen in their loyal viewpoint yet sufficient material. Of course, no hard-and-fast sequence can be laid down in courtesy to cases in that a High Court will practice a unusual office of quashing a move during any stage.
- 26.The benefaction box in hand, is a classical instance of a maliciously instituted rapist record and hence this Court sportive a powers underneath Section 482 Cr.P.C., would be fit in quashing a same, thereby enabling a petitioners herein to refrain from undergoing a distress of a rapist hearing instituted on groundless charges.
- 27.In a result, a Criminal Original Petitions stands allowed. Consequently, a record in C.C.No.2036 of 2015 on a record of a schooled XI Metropolitan Magistrate, Saidapet stands quashed.
26.06.2018 Speaking order
Note:Issue sequence duplicate on 06.07.2018
1.The XI Metropolitan Magistrate Court, Saidapet, Chennai.
2.The Inspector of Police (ADSP) Central Crime Branch, Egmore, Chennai-600008.
3.The Public Prosecutor, Madras High Court.
Pre-Delivery sequence finished in Crl.O.P.Nos. 14573 of 2017 Crl.O.P.Nos.17112 and 24197 of 2015 26.06.2018