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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2019
CORAM
THE HONOURABLE Mr.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No.3591 of 2014
and
M.P.Nos.1 and 2 of 2014
1.Saravana Selvam
2.Subramani
3.Nachiyammal
4.Shanthi
5.Pandidurai … Petitioners
Vs
1. State. represented by
The Inspector of Police,
Tambaram All Women Police Station,
Tambaram.
2.J.Vijayalakshmi .. Respondents
Prayer:
Criminal Original Petition is filed under Section 482 of Criminal Procedure
Code, to call for the records pertaining to the Criminal Proceedings in C.C.No.33 of
2014, arising out of the FIR No.18 of 2013 on the file of the Judicial Magistrate,
Tambaram and quash the same.
For Petitioners : Mr.C.V.Shanmuganathan
For Respondent-1 : Mr.M.Mohamed Riyaz
Additional Public Prosecutor
http://www.judis.nic.in For Respondent-2 : M/s.Va.Vu.Si.Vazhakagam
——-
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ORDER
This Criminal Original Petition has been filed by the petitioners seeking to
quash the proceedings in C.C.No.33 of 2014, arising out of the FIR No.18 of 2013 on
the file of the learned Judicial Magistrate, Tambaram.
2. The respondent police have registered a case the FIR in Crime No.18 of
2013 as against the petitioners for the offences under Sectionsections 498(A), Section406 IPC.
3. The brief facts of the case are that the defacto complainant and the 1st
petitioner/1st accused are the husband and wife. The 2nd and 3rd petitioner are
the father and mother of the 1st petitioner, the 5th petitioner is the elder brother of
the 1st petitioner and the 4th petitioner is the sister-in-law of the 1st petitioner and
the 5th petitioner is the brother of the 1st petitioner. They got married on
06.06.2011 at UKR Kalayana Mandapam, Cheranma Nagar, Vilankurichi Road,
Coimbatore, according to Hindu rites and customs. After the marriage, both of them
have stayed in Coimbatore and thereafter New Perungalathur and set up their
matrimonial life. Out of their wedlock, the 2nd respondent has be gottan a male
child on 03.05.2012. The 1st petitioner was prevented from lifting the child and
they had gone to the extent of abusing the 1st petitioner as well as his parents.
Even the 1st petitioner’s parents were not allowed to lift the child. Thereafter, the
2nd respondent informed the 1st petitioner over phone that he is permitted to visit
the child by her parents once in two weeks. During such time, she used to abuse
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the first petitioner. In fact, even during the inception of marriage the 1st
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petitioner’s in-laws used to visit the 1st petitioner’s matrimonial roof and created
some ugly scenes by misrepresenting to the 2nd respondent about the 1st
petitioner. They had gone to the extent of blaming the 1st petitioner as impotent.
The 1st petitioner and 2nd respondent continued their happy life in their absence.
Thereafter, the 1st petitioner’s mother-in-law has insisted the 1st petitioner to
permit her to stay along with the 1st petitioner and 2nd respondent. As, due to her
activity, the 1st petitioner and the 2nd respondent’s matrimonial life was disturbed,
and therefore, the 1st petitioner has not agreed for the same. On 23.10.2012, the
1st petitioner’s in-laws have taken the 2nd respondent and also her child along with
them to Coimbatore. Thereafter, the 1st petitioner has tried to contact the 2nd
respondent over phone but his efforts ended in vain. All his efforts to bring back the
2nd respondent to the matrimonial life were ended in futile. Having left with no
other option the 1st petitioner had filed a petition in HMOP.No.262 of 2013 on the
file of Sub Court, Tambaram, seeking for restitution of his conjugal rights and the
same is still pending. Therefore, none of the petitioners have not committed any
adverse acts against the interest of the defacto complainant. In fact, in the
complaint itself the defacto complainant has totally suppressed the pendency of
HMOP.No.262 of 2013, on the file of the Sub Court, Tambaram and also the receipt
of summons therein. The said complaint has been filed by the 2nd respondent only
with a view to wreak vengence on the petitioners for the reasons best known to her.
Admittedly, when the 2nd respondent has been staying in her parent’s house prior
to delivery, the allegations in the FIR cannot be probable against the petitioners and
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the 2nd respondent herein only based upon some misunderstanding between herself
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and the 1st petitioner herein who had come forward with the allegations as found in
the FIR to attack all the petitioners. The allegations as found in the FIR do not
make out a case either under Section 406 (or) under Sectionsection 498A IPC. The
allegations is the complaint die not make out any prima facie case under the above
referred sections. Moreover, immediately after filing of HMOP.No.262 of 2013 the
same was referred to Lok Adalat at the instance of the 1st petitioner herein.
Therefore, all the records in the above case would point out that the complaint
made against the accused did not make out a prima facie case. When the offences
itself is not made out, the proceedings with FIR is nothing but an abuse of process
of law. Therefore, the complaint as it stands is liable to be rejected and the FIR
deserves to be quashed. The petitioners were driven to this Court to get
anticipatory bail orders in Criminal O.P.No.18912 of 2013 dated 01.08.2013 and also
Crl.O.P.No.20237 of 2013, dated 12.08.2013. While the matter stood before thus,
the petitioners filed a quash petition in Crl.O.P.No.472 of 2014 on the file of this
Court seeking for the relief of quashing the FIR in Crime No.18 of 2013 dated
23.07.2013. During the pendency of the aforesaid quash petition, the first petitioner
understood that the first respondent police at the instance and behest of the second
respondent, complainant and her parents, has hurriedly filed a charge sheet before
the learned Judicial Magistrate Court, Tambaram. Now, the said proceedings is
numbered as C.C.No.33 of 2014 on the file of the Judicial Magistrate, Tambaram
and the same was closed in Crl.O.P.No.472 of 2014, dated 02.02.2014. In fact, the
petitioners came to know about the laying of the aforesaid charge sheet only at the
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date of hearing of the quash petition in Crl.O.P.No.472 of 2014. Immediately, the
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petitioners have applied for the certified copies of charge sheet and 161 statements
of the defacto complainant and the witnesses. Apparently, there is no independent
recording of the statements said to have been made by the witnesses and obviously
the 161 statements are recorded mechanically by the first respondent. The main
allegation of the defacto complainant and 161 statements of the witnesses 1 to 3
that on 12.06.2013 when the defacto complainant and her mother were pushed out
by the first petitioner, 3rd petitioner and 4th petitioner herein and thereafter, the
neighbours intervened and they said to have advised the petitioners 1,3 and 4.
Whereas, the 161 statement of the 4th witness did not corroborate the aforesaid
statements made by the defacto complainant and her parents and on the other
hand, the 4th witness has categorically stated that he has no knowledge about the
aforesaid incident and there will be a domestic fight between the first petitioner and
the defacto complainant which is normal in family life. Further, a plain reading of
the complaint 161 statements and the charge sheet on the fact of them, do not
make out a prima facie case against the petitioners for having dishonestly
misappropriated the alleged stridhan of the defacto complainant allegedly handed
over to the petitioners so as to attract the commission of offence of criminal breach
of trust punishable under Sectionsection 406 IPC. The case on hand, it is a classical
example of abuse of process of Court especially when the criminal proceedings
initiated by the 2nd respondent’/defacto complainant is tainted with malafide and
said complaint has been lodged with ulterior motive for wreaking vengence on the
accused. Hence, the petitioners have filed this criminal original petition to quash the
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charges framed against them.
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4. Heard the learned counsel appearing for the petitioner and the learned
Additional Public Prosecutor for the respondents
5. It is seen that the 4th petitioner is the sister-in-law of the defacto
complainant. Though the allegations are vague and bald and also general, the
offences under Section 420 and Section406 IPC are made out as against the petitioners
except fourth petitioner. There are specific allegations made out against the
petitioners.
6. In view of the above discussion, the Criminal Original Petition is allowed
insofar as the 4th petitioner is alone. Considering the fact that the case is of the
year 2013, the learned Judicial Magistrate, Tambaram, is directed to complete the
trial and dispose of the matter as against the other accused persons within a period
of three months from the date of receipt of a copy of this order. The other
petitioners are at liberty to raise all the points before the Trial Court. Further, the
second petitioner passed away and in respect of him all the charges got abated.
04.04.2019
Index:Yes/No
Internet:Yes/No
Speaking/Non speaking order
msm
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To
1. The Judicial Magistrate, Tambaram.
2. The Inspector of Police,
Tambaram All Women Police Station,
Tambaram.
3. The Public Prosecutor, High Court, Madras.
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G.K.ILANTHIRAIYAN, J.
msm
Crl.O.P.No.3591 of 2014
and
M.P.Nos.1 and 2 of 2014
04.04.2019
http://www.judis.nic.in