Judgment:
Prayer : Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to call for the records and to quash the criminal proceedings in C.C.No.300 of 2009 pending on the file of the learned Judicial Magistrate, Tambaram.
O R D E R
1. Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C., this criminal original petition is filed by the petitioner to quash the criminal proceedings pertaining to the case in C.C.No.300 of 2009, pending on the file of the learned Judicial Magistrate, Tambaram.
2. The petitioner and the second respondent are the husband and wife. Their marriage was solemnized on 20.08.2008 at Ambattur. No sooner than their marriage, a crack was developed in their matrimonial relationship. They both have exchanged allegations against each other.
3. When the matter stood thus, the second respondent had lodged a complaint against the petitioner on 10.11.2008 before the first respondent viz., the Sub-Inspector of Police, attached to W3, All Women Police Station, Tambaram and on the basis of the complaint, a case in Crime No.21 of 2008 came to be registered on the file of the respondent Police under Sections 417 and 420 I.P.C.,
4. After completion of the investigation, the first respondent had filed a final report on 12.05.2009 and the learned Judicial Magistrate after taking cognizance of the offences under Sections 417 and 420 I.P.C., has taken the same on his file in C.C.No.300 of 2009. The learned Judicial Magistrate, after hearing both sides has framed necessary charges under Section 417 and 420 I.P.C.,
5. From the available materials, it is manifested that trial has been commenced and the prosecution has sofar examined three witnesses on its part and the remaining witnesses are scheduled to be examined. Under this circumstance, the petitioner has come forward with this petition to quash the criminal proceedings pertaining to the case in C.C.No.300 of 2009.
6. Heard Mr.V.Vijayaprakash, the petitioner herein, who has appeared as party-in-person and Mr.C.Iyyapparaj, learned Government Advocate (Criminal Side) appearing for the first respondent and Mr.R.Chandrasekar, learned counsel appearing for the second respondent/complainant.
7. This criminal original petition is filed by the petitioner mainly on the following two grounds:
i. The case in crime No.21 of 2008 has been foisted against him by the second respondent/complainant with malafide intention to wreck vengeance and to make the petitioner to face the ordeal of the criminal proceedings apart from facing several proceedings before the family Court, and
ii. The case in Crime No.21 of 2008 has been filed by the second respondent at the behest of her father to extract money from the petitioner and therefore the criminal proceedings are not sustainable and liable to be quashed.
8. On perusal of the records, it is revealed that prior to the framing of charges, the petitioner appears to have filed a petition in Crl.M.P.No.5030 of 2009 before the learned Judicial Magistrate, Tambaram for discharging him from the clutches of the charges. But, that petition was dismissed on 26.11.2009 on the ground that the petitioner had suppressed an important fact at the time of his marriage that he had developed love affair with an another girl and that was why he was not willing to live with the second respondent/complainant and that the allegation levelled in the complaint was sufficient to frame necessary charges against the petitioner.
9. It may also be quite relevant to note here that against the Order of dismissal dated 26.11.2009 and made in Crl.M.P.No.5030 of 2009, the petitioner has not chosen to prefer any revision and the above said Order has therefore become final.
10. Now the petitioner has contended that after contracting marriage with the second respondent, she had refused to accompany him for honeymoon to Bangalore and that she had strangely started complaining against him about the non-consummation of marriage in front of her parents although it was she who did not co-operate with the petitioner for the same.
11. He has also contended that on 26.08.2008, the second respondent had left the matrimonial home along with her father under the guise of attending a marriage function and thereafter she never turned back to the matrimonial home to reunite with the petitioner.
12. He would contend further that at the time of her leaving, she had taken all of her belongings from the matrimonial home on the same day itself.
13. The grievance of the petitioner is that despite his strenuous efforts, the second respondent/complainant had refused to join him even after marriage counselling sessions were conducted.
14. In the meantime, the petitioner had filed a petition in H.M.O.P.No.2901 of 2008 on the file of the Family Court, Chennai for restitution of conjugal rights. When this petition was pending, the second respondent had filed another petition on 10.02.2009 in H.M.O.P.No.323 of 2009 on the file of the First Additional Family Court, Chennai to declare her marriage with the petitioner as null and void.
15. Thereafter, it is manifested from the records that the petitioner herein had also filed another petition in H.M.O.P.No.3902 of 2010 for the same relief of annulment of marriage with the second respondent on the file of the Family Court, Chennai and subsequently he had withdrawn his petition in H.M.O.P.No.2901 of 2008, which was filed by him for the relief of restitution of conjugal rights.
16. Now, the petition in H.M.O.P.No.323 of 2009, which was filed by the second respondent for annulment of marriage and the other petition in H.M.O.P.No.3902 of 2010 for the same relief of annulment of marriage filed by the petitioner are pending for more than two years without any progress.
17. It is also crystallised from the records that on account of dilatory tactics adopted by the petitioner in protracting the proceedings of the petition in H.M.O.P.No.323 of 2009, the second respondent had filed two revision petitions in C.R.P.Nos.1889 and 1890 of 2011 before this Court under Article 227 of Constitution of India and while disposing of those two revision petitions this Court had directed the Family Court, Chennai to dispose of the petition in H.M.O.P.No.323 of 2009 within the stipulated period of four months and the petitioner was also directed to co-operate with the Court for taking early decision.
18. Only under this circumstance, the complaint in Crime No.21 of 2008 came to be registered by the first respondent Police based on the complaint of the second respondent against the petitioner under Sections 417 and 420 I.P.C.,
19. As observed herein before, the trial has been commenced in the case in C.C.No.300 of 2009 and hitherto three witnesses were examined. But, the petitioner has putforth various contentions in his petition, which are all irrelevant for the disposal of this petition, which has been filed under Section 482 Cr.P.C.,
20. The writ petition filed by the father of the second respondent on the file of this Court challenging the disciplinary action contemplated against him by his department is extraneous and not at all a ground for quashing the criminal proceedings of C.C.No.300 of 2009 against the petitioner.
21. Further, the petitioner has also made some comments on the reply given by the higher officials of the first respondent under Right to Information Act and his appeal before RTI Commission, which are nothing to do with the allegations levelled in the case against him.
22. It has become imperative on the part of this Court to reiterate that prior to the framing of charges under Sections 417 and 420 I.P.C., the petitioner had filed a petition in Crl.M.P.No.5030 of 2009 under Section 245 Cr.P.C., seeking the relief of discharging him from the clutches of the charges. That petition was dismissed.
23. It is also pertinent to note here that against the Order of dismissal of the above said petition, the petitioner has never chosen to prefer any revision. Therefore, the petitioner does not have any competency to criticise or making comment in this petition upon the Order passed by the learned Judicial Magistrate, Tambaram in the above said Crl.M.P.No.5030 of 2009, which appears to have become final.
24. This Court does not see any infirmity, discrepancy or any violation on the part of the first respondent Police in registering the case in Crime No.21 of 2008 under Section 154 Cr.P.C.,
25. The petitioner has contended that no prima facie case is made out against him even the uncontroverted allegations made in the first information report, statement recorded under Section 161 (3) Cr.P.C., and the final report filed by the first respondent were taken in it's face value. This contention is not discernible for the simple reason that the case is under half way of trial and the remaining witnesses are yet to be examined. The petitioner is having every right and he is also at liberty to putforth these contentions before the Trial Court at the time of advancing his arguments.
26. The petitioner, in support of his contentions, has placed reliance upon a catena of decisions. They are:
1. R.P.Kapur vs. The State of Punjab, reported in 1960 AIR 862 : 1960 SCR (3) 311,
2. B.Suresh Yadav vs. Sharifa Bee and another, reported in 2007 (12) SCALE 364,
3. M.C.D vs. State of Delhi and another, Appeal (Crl.) No.660 of 2005,
4. Anwarul Islam vs. The State of West Bengal, reported in (1996) 2 CALLT 19 HC,
5. Upkar Singh vs. Ved Prakash and others, Appeal (Crl.) No.411 of 2002,
6. N.Srinivasaraghavan vs. The Director of Medical and others, W.P.No.709 of 2005,
7. State of Karnataka vs. L.Muniswamy and others, reported in 1977 AIR 1489 : 1977 SCR (3) 113,
8. Kusum Dadarao Khandagale vs. Dadarao Bajirao Khandagale and others, reported in 2003 (2) ALD Cri 96 : (2003) 105 BOMLR 514, and
9. Md.Hussain Faisi and another vs. State of Andhra Pradesh, reported in 1960 CriLJ 1067,
27. In R.P.Kapur vs. The State of Punjab, reported in 1960 AIR 862 : 1960 SCR (3) 311, the Hon'ble Apex Court has carved out the following three circumstances, under which the High Court can invoke its inherent jurisdiction under Section 482 Cr.P.C., to quash the criminal proceedings,
(i) where there was a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint did not make out the offence alleged; and
(iii)where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.
28. This Court has given it's careful decision through the above cited decision and of view that this case does not come under any one of the categories engrafted in the above cited decision.
29. Similarly, in State of Karnataka vs. L.Muniswamy and others, reported in 1977 AIR 1489 : 1977 SCR (3) 113, the Apex Court has held that the saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a Salutary public purpose which is that a Court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.
30. It is also held that considerations justifying the exercise of inherent powers for securing the ends of justice vary from case to case and a jurisdiction as wholesome as the one conferred by s. 482 ought not to be encased within the strait-jacket of a rigid formula.
31. The Hon'ble Supreme Court of India has also referred the decision of R.P.Kapur's case (cited supra) and the three circumstances engrafted therein. On considering the various circumstances of the above said case, the Apex Court has held that the ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. Without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
32. On coming to the instant case on hand, the petitioner has contended that the present case has been filed against him only with the oblique motive of harassing him and nothing beyond that and that the privilege of being a woman cannot be conferred with special advantage or prerogative rights to take the law into her own hand as a weapon to subject an innocent husband to face the ordeal of criminal trial.
33. As observed herein before, having failed in his attempt to file a revision against the Order of dismissal of the petition in Crl.M.P.No.5030 of 2009, the petitioner cannot indirectly seek the relief, which could not be granted as the trial is under half way.
34. On the other hand, Mr.D.Chandrasekaran, learned counsel for the second respondent, while advancing his arguments, has placed reliance upon the following decisions in support of his contentions:
1. P.N.Udani vs. Corporation of Chennai, reported in 2000 (II) CTC 226,
2. Ashabai Machindra Adhagale vs. State of Maharashtra and others, reported in 2009 (2) CTC 163, and
3. K.N.Sadagopan vs. T.C.Govindarajan, reported in 1998 CriLJ 143 : 1998(1) CTC 48.
35. In the first decision viz., P.N.Udani vs. Corporation of Chennai, reported in 2000 (II) CTC 226, the learned single Judge of this Court has held that the merits and demerits of case cannot be considered in quashing proceedings and can be decided only after full fledged trial and evidence.
36. In the second decision viz., Ashabai Machindra Adhagale vs. State of Maharashtra and others, reported in 2009 (2) CTC 163, the three Judges Bench of the Hon'ble Supreme Court of India has observed that the High Court should normally refrain from giving prima facie decision in a case where entire facts are incomplete/hazy and when evidence has not been collected and produced before Court. When exercising jurisdiction under Section 482 Cr.P.C., High Court should not embark on enquiry whether evidence is reliable or not.
37. It is also observed that Section 482 Cr.P.C., is not instrument for accused to short-circuit and bring sudden death to prosecution. Besides this, it has also been held that inherent power should not be exercised to stifle legitimate prosecution.
38. In the last decision viz., K.N.Sadagopan vs. T.C.Govindarajan, reported in 1998 CriLJ 143 : 1998(1) CTC 48, the petitioner being the accused in 138 of Negotiable Instrument Act, 1881 had approached the High Court belatedly to quash the prosecution for the offence under Section 138 of the Negotiable Instrument Act, after trial is over and before judgment is passed. But, this Court has declined to entertain the application because of latches on the part of the petitioner and while disposing of the case, the learned single Judge of this Court has placed reliance upon a decision in Amar Chand vs. Shanti Bose, reported in AIR 1973 SC 739, wherein it was laid down that:
"Where the accused moved the High Court at the time when the trial was almost coming to a close and what remained to be done was the examination of two prosecution and one Court witnesses and the High Court quashed the charge and the entire proceedings on the grounds that the complainant suppressed material facts and that the evidence on record did not establish the alleged offence, the Order was liable to be set aside. The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on and to come to its logical conclusion, one way or the other, and decline to interfere with those proceedings. The questions whether there was suppression and whether the evidence established the alleged offence were matters to be considered by the trial Court after an appraisal of the entire evidence."
39. On coming to the instant case on hand, as rightly addressed by the learned Government Advocate (Criminal Side), already trial has been commenced in the case in C.C.No.300 of 2009 and the remaining witnesses are scheduled to be examined and only under this circumstance with an oblique intention of protracting the proceedings and to circumvent the law the petitioner has come forward with this petition seeking the relief of quashing the criminal proceedings as against him.
40. It is also alleged that the second respondent being the complainant and her father had engineered this case only to harass the petitioner and to put him behind bar. But, the learned counsel for the second respondent/complainant has made reference to various short message services (SMS) exchanged between the petitioner and the second respondent and in this connection he would submit that the conversation which took place between the petitioner and the second respondent would go to show that the petitioner had cleverly cheated the second respondent. The details of short message services exchanged between them have been given in the counter filed by the second respondent.
41. He would submit further that this Court at this stage i.e., at the stage of half way of trial, could not go into the disputed facts, which could be agitated before the trial Court where the lis is pending.
42. This Court has carefully considered the submissions made by the petitioner, who has appeared party-in-person, learned counsel appearing for the second respondent/complainant as well as the learned Government Advocate (Criminal Side) and this Court has also perused the materials available on record.
43. Having taken into consideration of the pendency of the criminal proceedings in the case in C.C.No.300 of 2009, this Court is of view that this is not the high time to interfere with the criminal trial, which is in progress before the Trial Court.
44. As rightly observed by the Apex Court in Amar Chand's case (cited supra), the proper course at this stage is, to allow the proceedings in C.C.No.300 of 2009 to go on and to come to its logical conclusion, one way or the other and the questions whether there was harassment and the contentions projected by the petitioner that the present case has been foisted against him by the second respondent and her father with malafide intention to wreck vengeance and to make him to face the ordeal of criminal proceedings could very well be agitated before the Trial Court and the other contention i.e.this case has been filed only to extract money from him can also be projected before the Trial Court.
45. It is significant to note here that the petitioner has not challenged the Order of dismissal of the Trial Court made in Crl.M.P.No.5030 of 2009, dated 26.11.2009 and has deliberately allowed the same to become final.
46. In this connection, Mr.D.Chandrasekaran, learned counsel appearing for the second respondent has submitted that the petitioner had already exhausted his remedy under Section 245 Cr.P.C., and that was rightly rejected by the trial Court.
47. Keeping in view of the above facts, this Court is declined to interfere with the criminal proceedings relating to the case in C.C.No.300 of 2009, pending on the file of the learned Judicial Magistrate, Tambaram. It is to be borne in mind that "what cannot be done directly, cannot also be done directly".
48. In the result, this criminal original petition is dismissed and the learned Judicial Magistrate, Tambaram is hereby directed to dispose the case in C.C.No.300 of 2009 within the steel framed time of three months from the date of receipt of a copy of this Order and the fact of disposal of the said case shall be intimated to the Registry without fail. Consequently, connected miscellaneous petitions are closed.