—
Madras High Court
Godwin vs / on 8 December, 2023
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.21974 of 2021 9174 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.12.2023 Pronounced on :08.12.2023
Coram:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Crl.O.P Nos.21974 of 2021 and 9174 of 2023
and
Crl.M.P.Nos.11920 of 2021 and 5953, 5954 6890 of 2023
Crl.O.P.No.21974 of 2021:
1.Godwin
2.Sarojabai … Petitioners
/versus/
1.The Inspector of Police,
W22, All Women Police Station,
Mylapore, Chennai-600 004.
(Crime No.7 of 2021)
2.Akshayaa Benjamin … Respondents
Criminal Original Petition has been filed under Section 482 Cr.P.C., to
call for the records in Crime No.7 of 2021 on the file of the 1 st respondent, and
quash the same.
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
For petitioners : Mr.N.R.Elango, Senior Counsel
for Mr.A.S.Aswin Prasanna
For R1 : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
For R2 : Mr.K.S.Dinakaran, Senior Counsel for
Mr.N.S.Sivakumar
Crl.O.P.No.9174 of 2023:
1.G.Allwin Chelliah
2.Godwin
3.Sarojabai … Petitioners
/versus/
1.The Inspector of Police,
W-22, All Women Police Station,
Mylapore, Chennai-600 004.
(Crime No.7 of 2021)
2.Akshayaa Benjamin … Respondents
Criminal Original Petition has been filed under Section 482 Cr.P.C., to
call for the records in C.C.No.150 of 2023 on the file of the IV Metropolitan
Magistrate, Saidapet and quash the same.
For petitioners : Mr.N.R.Elango, Senior Counsel
for Mr.A.S.Aswin Prasanna
For R1 : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl.Side)
For R2 : Mr.K.S.Dinakaran, Senior Counsel for
Mr.N.S.Sivakumar
——-
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COMMON ORDER
Akshayaa Benjamin and Allwin Chellaiah got married on 20/02/2020.
The marriage was solemnised at Santhome Cathedral, Chennai, as per the
customs and rites of Christian religion. They both are Advocates by profession
as their father. They set up their matrimonial home at Chennai. Unfortunately,
their marital life was short lived. Akshayaa left the matrimonial home on
08/08/2020 and rejoined with her parents. On 02/02/2021 she gave a complaint
to the All Women Police Station at Mylapore against her husband and parents
in law alleging dowry harassment, cruelty and misappropriation.
2. As per the complaint, on demand her father gave a Benz car,
Diamond ring and gold jewellery totally worth few crores of rupees and
conducted the marriage at his expense. The parents of Allwin promised to share
the reception expenses, but gave only Rs.5 lakhs and her father was made to
spend the rest about Rs.50 lakhs. Yet, her husband Allwin Chelliah was very
unkind towards her and used to badly comment about her physic and behaviour
by comparing her with other girls, particularly with one “X” with whom he had
premarital relationship for more than four years and continued the affair even
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
after marriage. Her husband on 08/08/2020 tried to have intercourse by force
and when she resisted she was badly attacked and sustained injuries. After
getting treatment for her injuries she went to her parents home. After her
separation, the matter was informed to the parents of Allwin through email,
SMS as well as directly through mediators. Her father who is also an advocate
took efforts to reconcile directly and through common friends, but it went in
vein. The parents of Allwin knowing fully well about the character of their son
and his affair with “X“ had suppressed the same and when they were informed
about his abnormal behaviour and conduct, they instead of taking correction
measures supported their son and threatened to upload the private photos and
video clippings of Akshayaa in You tube.
3. Gist of the petition in Crl.OP 21974 of 2021 by A-2 and A-3 to
quash the FIR:
This petition is filed by the parent’s-in-law of Akshayaa, who were
shown as suspected accused number 2 and 3 in the FIR which was taken for
investigation in Cr.No: 7 of 2021 on the file of All Women Police Station,
Mylapore. This petition is to quash the FIR on the ground that the complaint
averements are false and given with ulterior motive to extract money from
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Crl.O.P.Nos.21974 of 2021 9174 of 2023them. These two petitioners are residents of Madurai. A2 practising at Madurai
Bench of High Court. A-3 a retired Senior Officer in Electricity Board. Few
days after the marriage they left to Madurai and thereafter they never met their
daughter-in-law in person since, lock down was announced. The matrimonial
discord between their son and daughter-in-law was due to conflict in faith.
They belong to CSI faith and the defacto complaint family belongs to Roman
Catholic Faith. After separation, complaint lodged after 6 months and same was
enquired by the Deputy Commissioner of Police. All necessary documents and
informations were produced with detailed written representation. Despite that,
their son was illegally arrested, when he went to Sriperumputtur to attend the
Court. The laptop and mobile phone of their son was seized and nothing to
incriminate them found in the laptop or mobile phone. Since Akshayaa made
weird baseless allegations, their son Allwin was forced to file divorce petition
on 29/03/2021 before the Family Court, Chennai and same is pending as
O.P.No:1822/2021
4. Contending that the complaint does not disclose any ingredient for
offences against them which will attract section 420 , 406 or 498 A of IPC, the
petition to quash the FIR is filed.
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
5. Pending the above petition, the first respondent police on
completion of investigation had filed final report against (A-1) Allwin
Chellaiah, (A-2) Godwin and (A-3) Sarojabai for offences under Sections
498A, 420,406 and 354 (c) of IPC. The final report is taken on file by the IV
Metropolitan Magistrate, Saidapet in C.C.No:150/2023. The said calender case
is sought to be quashed by all the three accused in Crl.O.P.No.9174 of 2023.
6. Gist of the petition in Crl.OP 9174/2023 filed by A-1, A-2 and A-3
to quash the CC 150/2023:
The petitioners contention is that the defacto complainant has initiated
the prosecution with a malicious intention. By giving criminal colour to the
matrimonial dispute as she wants to settle her personal grudge, the first
respondent police had mechanically filed the final report contrary to the dictum
laid by Hon’ble Supreme Court in Nathi Lal -vs- State of UP and Arnesh
Kumar -vs- State of Bihar. The counter complaints lodged by the first
petitioner on 20/12/2021 and 30/12/2021 were ignored by the first respondent.
The first petitioner was arrested illegally by force and with assistance of
hooligans. The complaint about the illegal arrest conveniently suppressed in the
final report.
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7. The allegation that the first petitioner had live in relationship with
some other person prior to marriage even assuming to be true it does not
satisfies the essential ingredients to attract Section 420 IPC. It was the defacto
complainant, who had caused breach of trust by taking away Rs.2,35,000/- from
the first petitioner without his knowledge. The first respondent police yet to
complete the investigation about the incidents which was reported by the first
respondent in his complaint dated 20/12/2021 and 30/12/2021.
8. Relying on the very recent judgment dated 23/11/2023 of the
Supreme Court rendered in Vishnu Kumar Shukla and others -vs- State of UP
and another (2 Judges Bench), the Learned Senior Counsel for the petitioners
submitted that when there is no suspicion, much less strong or grave suspicion
alleged, it would be unjustified to make the petitioners to face a full-fledged
criminal trial. The petitioners should be protected against vexatious and
unwarranted criminal prosecution. The case of Priyanka Mishra -vs- St of UP
reported in [2023 INSC 729 ] also relied.
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
9. Response by the defacto complainant:
The learned Senior Counsel appearing for the defacto complainant/2nd
respondent submitted that the conversations retrieved from the laptop and
mobile phone of the first petitioner/Allwin singularly enough to proceed against
the petitioners for the offences under Section 498-A of IPC. The medical
certificate and the statement of doctor who treated the defacto complainant for
the injuries caused by the first petitioner is evidence for physical cruelty and the
material relied by the prosecution regarding the extra marital affair of the first
petitioner is evident from the SMS exchanges between the first petitioner and
one “X“. The defacto complainant did not rush to the police with any oblique
motive, but honestly waited expecting the elders to solve the issue. Only after
all her fervent request to the second petitioner failed, she was forced to give the
complaint and it is neither malicious nor a counter for the divorce petition
initiated by the first petitioner. The attempt of the petitioner to conduct mini
trial of the disputed facts in their petition under section 482 Cr.P.C cannot be
entertained.
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10. Relying upon the Judgement of the Supreme Court in Abishek -vs-
State of MP r( by 3 Judges Bench) reported in [2023 SCC OnLine 1083]
decided on 31st August, 2023, the learned senior counsel for the 2nd respondent
submitted that, High Court can exercise its power under Section 482 of Cr.P.C
to quash the FIR even when a charge sheet is filed by the police during the
pendency of FIR quash petition, however it is wholly impermissible for the
High Court to enter into the factual arena to adjudge the correctness of the
allegations in the complaint.
11. The judgement (by 2 Judges Bench) in Rajeev Kourav -vs-
Baisahab and others reported in [(2020) 3 SCC 317] also referred to emphasis
that in the quashment proceedings statements recorded under Section 161
Cr.P.C cannot be taken into consideration by High Court since it is not
admissible in evidence.
12. Response by the first respondent/State:
The Learned Government Advocate (Crl.Side) representing the first
respondent police submitted that the parties involved are advocates and well
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Crl.O.P.Nos.21974 of 2021 9174 of 2023informed about the law and procedures. There was no violation of any
procedure or Courts guidelines in the investigation of the case. The police acted
only after thorough enquiry and on collection of evidence which prima-facie
indicates that the defacto complainant was treated cruely both mentally and
physically by the first petitioner/first accused. The second and third accused
had demanded share in the sale price of the house property at Velacherri
owned by the father of the defacto complainant through cell phone and Zoom
Call. Being a matrimonial dispute, the police had not taken action against the
petitioners immediately. After detailed investigation, being satisfied that the
evidence collected during the investigation discloses offences of breach of
trust, cheating and cruelty besides criminal voyeurism final report filed.
13. Heard the learned Senior Counsel appearing for the petitioners and
the counsels for the respondents. The submissions made by the learned
Government Advocate along with the petition, counter, re-joinder and reply
were taken up for consideration.
14. The spouses who are at loggerheads are young members of the
Bar. Likewise, the father’s of the spouses are Senior members of the Bar
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practising in High Court. The pleadings on either side, adding new facts and
improving them with embellishment to counter the other party version clearly
indicates that what are all alleged on either side are not necessarily correct. The
reading of e-mails and SMS exchanges also not natural or casual but appears to
be carefully worded expecting that those communications may or can be used
in future in case of litigation. The persons exchanging the message are all being
legally trained, this is quit natural.
15. The bare facts which either side admit or not denied is that they
both are Christians but belong to different faith. Before marriage, the defacto
complainant had given an undertaking by way of an affidavit that after marriage
she will become a member of CSI, St.Thomas English Church in which her
husband Allwin a communicant member. In the said affidavit she has also
stated that the marriage is an arranged marriage and there is no demand for
dowry towards solemnization of the marriage from the bridegroom side.
16. Next, the female friend of Allwin by name “X“, who is the primary
reason for discord in the relationship. The defacto complainant and her father
believe that the second and the third petitioners knowingly suppressed about
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
their son’s affair with the said “X “. In this regard, two advocates by name Ms.
Dhurga Bhatt and Mr. Dinesh had given statements that Allwin and “ X “ were
in intimate relationship before marriage. In her complaint, Akshayaa had
mentioned several incidents, where Allwin compared “ X “ with the defacto
complainant to insult her.
17. The resultant effects are, (i) their marital life had come to end
within 6 months of the marriage. (ii) The petition to dissolve the marriage
initiated soon after the expiry of one year from the date of marriage is pending
in Family Court, Chennai. (iii) Allwin and his parents are facing criminal
prosecution and (iv) the complaints given by Allwin regarding illegal arrest and
for other allegation is under investigation. (v) Due to the fight between these
two families, the collateral damage is caused to the personal repute of “ X “.
18. This Court earlier in the course of hearing these petitions thought
fit to refer the matter to mediation. A retired Judge of this court was requested
to mediate between the parties and arrive at an amicable settlement. This
attempt unfortunately failed and parties have decided to work out their remedy
through court.
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19. The prime contention in the FIR quash petition filed on behalf of
the A-2 and A-3 is that the marriage, separation and lodging of complaint all
occurred during the Covid 19 restriction period. Few days after marriage, A-2
and A-3 returned to Madurai. The allegations made against A-1 even if true it
was not with their knowledge or they to be held responsible for it. In the
petition to quash the final report, they contend that, the charge of cruelty
against them either physically or mentally, not made out in the final report
except to say that they used to threatened the defacto complainant over cell
phone and Zoom calls. For this allegation there is no material evidence to
support. The retrieval of informations stored in the mobile phone, laptop or
other electronic gadgets does not discloses any incriminating material to
prosecute them for the offences under Section 354 C of IPC. The statements of
witnesses recorded during the course of investigation, except the defacto
complainant and her family members, others have not said anything seriously
incriminating about A-2 and A-3 to attract offences under sections 406 or 420
or 498 A of IPC. Even the statement of Mr. Benjamin, the father of the defacto
complainant is only regarding the selection of marriage hall, caterer and choice
of ring before marriage and the expensive expectations of the petitioners and
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
nothing adverse to prosecute them for offences under section 420 or 406 IPC or
498 A IPC.
20. It is well settled by the Hon’ble Supreme Court in its judgments
that the exercise of power under Section 482 Cr.P.C to quash the proceedings is
an exception and not a rule. Appreciation of evidence is not permissible in a
quash petition. To find out whether any cognizable offence made out or not, the
High Court cannot act as an investigating agency nor can exercise its power
like appellate court while dealing a quash petition under section 482 of Cr.P.C.
If the Court think fit, no prima facie material available in the FIR or the Final
Report then subject to the parameters laid in R.P.Kapur -vs- State of Punjab
reported in ( AIR 1960 SC 866) ; State of Punjab -vs- Bajanlal reported in
( 1992 Supp. 1 SCC 335 ) and Neeharika Infrastructure (P) Ltd -vs- State of
Maharashtra reported in [AIR 2021 SCC 1918] can entertain quash petitions.
The power of quashing should be exercised sparingly, with circumspection.
21. In Abishek -vs- State of MP reported in [2023 SCC OnLine 1083]
three Judges of the Hon’ble Supreme Court after considering the earlier
judgements in respect of quash petitions filed by in laws in matrimonial
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disputes, has observed that, false implications by way of general omnibus
allegations made in the course of matrimonial disputes, if left unchecked would
result in misuse of the process of law.
22. At times if not always, in a matrimonial dispute, the agony of the
girl and her parents, the irretrievable damage and scar suffered force the
victims to make allegations against all who are close to the perpetrator of the
crime. Those allegations may not be true or may be an exaggerated one or on
presumption and suspicion. In such cases it is inevitable duty of the Courts to
look into all other attending circumstances emerging from the record of the case
over and above the averments if need be, with due care and circumspection try
and read between the lines. (Mahmood Ali -vs- State of UP (Criminal Appeal No.
2341 of 2023, decided on 08.08.2023) , cited in Abishek case at para 16 relied )
23. This Court taking cue from the above said observation made by the
learned judges of the Hon’ble Supreme Court in the judgment referred holds
that the FIR and the Final report does not disclose ingredients required to
prosecute accused 2 and 3 (who are the 2nd and 3rd petitioners in
Crl.O.P.No.9174 of 2023 and petitioners 1 and 2 in Crl.O.P.No.21974 of 2021).
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Hence, the case against them alone stands quashed. As far as the first petitioner
in Crl.O.P.No.9174 of 2023, this Court finds copious material for proceeding
against the first accused Allwin, therefore his prayer to quash the case in
C.C.No.150 of 2023 is dismissed.
24. Accordingly, Crl.O.P.No:9174 of 2023 is partly allowed in
respect of 2nd and 3rd petitioners and the same is dismissed as far as first
petitioner is concerned. The trial Court can proceed with C.C.No.150 of 2023
on the file of IV Metropolitan Magistrate, Saidapet, Chennai.
25. In view of the above order passed in Crl.O.P.No.9174 of 2023 , the
prayer sought in Crl.O.P.No.21974 of 2021 merge with the relief granted in
Crl.O.P.No.9174 of 2023. Hence, no separate order is required in
Crl.O.P.No.21974of 2021. Hence, this Criminal Original Petition is disposed of
as closed. Consequently, the connected Criminal Miscellaneous Petitions are
closed.
08.12.2023
Index :Yes
Speaking order/non speaking order
ari
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To:-
1.The IV Metropolitan Magistrate, Saidapet, Chennai.
2.The Inspector of Police, W22, All Women Police Station,
Mylapore, Chennai-600 004.
3.The Public Prosecutor, High Court of Madras, Chennai.
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Crl.O.P.Nos.21974 of 2021 9174 of 2023
Dr.G.JAYACHANDRAN,J.
ari
delivery Common Order made in
Crl.O.P Nos.21974/2021 and 9174/2023
and
Crl.M.P.Nos.11920 of 2021 and 5953,
5954 6890 of 2023
08.12.2023
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