Thursday, July 4, 2013

498a wife NOT attending trial? years rolling on? case going nowhere? this quash will help! Madras HC GEM


Notes

****************

* This case is being decreed in 2011 , that's right year two thousand and eleven

* ...now ... A short flash back

* Ablaa naari ("abalaip peN" in Tamil) one Ms. Usha gets married on 28.10.2002 ... yeah some 9 years before we reach the high court

* soon after the marriage, Ablaa / wife leaves matrimonial / husband's home on 11.4.2003 and goes away [according to husband and co she left ... on her own volition ...]

* A case is also registered by wife / ablaa naari / Ms. Usha on 20.4.2005 , some YEARS after she leaveing home, for alleged offence u/s .498-A IPC

* the police are SOOOO considerate... they conduct an inquiry and add some more sections, and so charge sheet is filed for Sec.498-A, 352 and 506(ii) IPC ; Magistrate takes cognizance in C.C.No.770 of 2005

* Husband's brother's wife also joins the fray and deposes AGAINST the husband ... it's important to note the husband's brother's wife has filed cases AGAINST her husband !!!

* Now, the original case [in C.C.No.770 of 2005 ], i.e. our own ablaa's case is pending with magistrate SINCE 2005 !!

* wife [Ms. Usha ] is NOT appearing

* wife's [Ms. Usha's] whereabouts NOT known

* husband and his relatives who are accused keep attending date after date ...date after date...

* frustrated, husband , husband's brother, sister (all accused) applie for quash at Madras HC

* Madras HC appoints an Amicus Curie on behalf of the woman Ms. Usha (obviously on tax payer costs !!) and the amicus curie, lawyer tries to send notices to the ablaa naari

* even that lawyer can't serve notices and the ablaa [Ms. Usha ] is complete not traceable !!

* HC quotes a host of cases ...what sort of cases ? ...cases where other innocent men are dragged for years and years by the court system !!

* finally HC quashes the case

* still NOOOO NEWS of ablaa naari , Ms. Usha


******************** important disclaimer ********************


 

This judgment was collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgement or the judgement itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.



 

************************************************************

CASE FROM JUDIS WEB SITE FOR MADRAS HIGH COURT

************************************************************

 

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

 

DATED:      22 -2-2011

 

CORAM

 

THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI

 

 

CRL.O.P.No.27949  of  2009

 

 

1. S. Semmel

2. Pary

3. S. Pynthodi                                                                ... Petitioners

 

vs

 

 

1. The State rep by the

    Inspector of Police

    All Women Police Station Erode

    Erode

 

2. S. Usha

    (impleaded as 2nd respondent as per the order

     of this Court in MP No.1 of 2010 dtd.12.1.2010)

 

            Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein.

 

                        For petitioners              :  Mr.S. V.Ramamurthy

                                   

                        For R.1                        :  Mr.S. Rajakumar

                                                    Govt. Advocate (Crl.Side)

 

                        For R.2                        :  Mr.T.R. Raja

                                                   (Legal Aid Counsel)              

 

 

 

ORDER

 

            By consent of both sides, the matter is taken up for final disposal. The petition is filed seeking a direction to call for the records in C.C.No.770 of 2005 on the file of the learned Judicial Magistrate, Erode, and quash the same.

 

            2. The first petitioner is the husband of the 2nd respondent Usha.  Petitioner Nos.2 and 3 are the brother and sister  of the 1st petitioner. On a complaint given by the 2nd respondent as against the husband and in-laws, a case has been registered by the first respondent in Cr.No.11 of 2005 on 20.4.2005 for an alleged offence under Sec.498-A IPC.  After investigation, the 1st respondent filed charge sheet against the petitioners for offences under Sec.498-A, 352 and 506(ii) IPC before the learned Judicial Magistrate No.I, Erode, who took cognizance by taking the case on file as in C.C.No.770 of 2005 and the case is pending for trial from 2005. 

 

            3. Now, the petitioners have filed the present application to  quash the aforesaid proceedings  on the ground that the 2nd respondent having left the matrimonial home on her own voliation way back on 11.4.2003, lodged the complaint only on 20.4.2005 and further, the defacto-complainant never appeared before the court from 2005 onwards and her whereabouts also are not known; therefore, in a given situation,  continuance of such pointless proceedings is only an abuse of process of law.

 

            4. Finding that the notice  issued to the second respondent could not be  served, this Court directed the High Court Legal Services Committee to appoint a legal aid counsel and the  Committee has appointed Mr.T.R. Ravi, who is now appearing for the 2nd respondent.

 

 

            5.  The learned legal aid counsel also reports  that despite  his best efforts,  the notice could not be served on the 2nd respondent at the given address. 

           

            6.  Mr.S.V. Ramamurthy, learned counsel for the petitioners, by pointing out that the petitioners have been regularly  attending the Court proceedings without fail for the last six years, yet the trial could not be commenced, would submit that  in a case where the whereabouts of the defacto-complainant herself is not known and she is not even interested in prosecuting the case by appearing before the court, the petitioners including the women-folk of the husband's family cannot be expected to wait till the defacto-complainant turns to Court at her convenience and legally they are entitled for a speedy trial.  

 

            7.  In that line, the learned counsel relied on an unreported judgment in Crl. Appeal No.773 of 2003, wherein, the Supreme court has quashed the criminal proceedings based on the complaint given by a person who has left India and settled at United States.

 

            8.  Mr.T.R.Ravi, the legal aid counsel  stated  that inspite of his best efforts he could not contact the 2nd respondent and  would submit that  speedy trial is the fundamental right of a citizen  and cited the following case laws:

 

            1989 LW Crl 175 (Sait Mohamed vs The Inspector of Police, Prohibition& Enforcement Wing, Coimbatore Rural District)

           

            1982 LW Crl 112 (Kothandapillai vs State by Deputy Supdt. Of Police, Tindivanam

 

            1976 Crl LJ 1835 (The Public Prosecutor vs Gundu Rao)

 

            1994 Crl L J 242 (Biswanath Prasad Singh vs State of Bihar)

 

            1992 CRL LJ 2717 (1) (Abdul Rehman Antulay etc vs R.S. Nayak and another etc.,)

 

            9. Heard and perused the materials available on record.

 

            10.  The 2nd respondent is the wife of the petitioner and the other petitioners are the brothers and sisters of the petitioner.  The first petitioner and the 2nd respondent married were on 28.10.2002 and it is reflected in the complaint lodged that she was given 30 sovereigns of jewels and valuables  at the time of marriage. As per the charge sheet, on 1.4.2003,  the petitioners demanded Rs.1,00,000/- as dowry from the defacto-complainant and on 10.4.2003, the 3rd petitioner, assaulted the defacto-complainant while she  was pregnant and on 11.4.2003, she was driven out of the matrimonial home and as a result, there was miscarriage. On 16.4.2005, it is alleged that the petitioners went to the house of the defacto-complainant and demanded Rs.1,00,000/- as dowry. From the charge sheet, it is further seen that   one Singaru Velu, the father of the respondent, and one Kamakshi, the mother of the 2nd respondent were enquired and cited  as witnesses to speak about the cruelty meted out to their daughter at the hands of the petitioners family. One Dr.Geetha was examined to speak about the miscarriage. One Swaminathan, Kaliaperumal and  Rengarajan were examined to corroborate the version of the defacto-complainant and her parents and further  one Subashini Rama, the wife of the 2nd petitioner was also examined,  who had aleady given a complaint against her husband, the 2nd petitioner herein.

 

            11.  Thus, the main allegation in the complaint is that prior to 11.4.2003, there was demand of dowry and it continued till 16.4.2005 on which date,  the demand was made at the house of the parents of the complainant.

 

            12.  In that back ground, it is seen that, admittedly, the defacto-complainant was separated in matrimonial life from the 1st petitoner on and  from 11.4.2003. Till 16.4.2005, there was no complaint by the defacto-complainant. Only on 16.4.2005,  she alleges an incident of the first petitioner  demanding dowry.  As stated earlier, the parents have corroborated the occurrence said to have taken place on 16.4.2005. The other witnesses would generally state that they came to know about the demand and cruelty only through the complainant and her parents.  The prosecution have chosen to examine the wife of the 2nd petiitoner who have also filed a complaint against the 2nd petitioner. Therefore, even though it is alleged that the cruelty was met out to the defacto-complainant at the hands of the petitioners during her stay in the matrimonial home prior to 11.4.2003, admittedly, there was no immediate complaint. The demand stated to be made  on 16.4.2005 and that  was only by the husband and not the other petitioiners/in-laws.

 

        13.  It is stated that the defacto-complainant had filed HMOP No,.22 of 2008  for dissolution of the marriage and has obtained an order of divorce on 19.3.2008. For the present proceedings under challenge, she never appeared before the trial court and the trial is pending from 2005 and her whereabouts are not known and the notice from this court also could not be served on the defacto-comoplainant and the legal aid counsel who was appointed to represent the 2nd respondent was also unable to contact the 2nd respondent.

 

            14.  In 1989 LW Crl 175 (Sait Mohamed vs The Inspector of Police, Prohibition& Enforcement Wing, Coimbatore Rural District), this Court has held as follows:

 

| 6. The fact of being charged with an offence creates

| certainly a stigma against a person and will cause to

| him certain handicaps. The status of the accused

| person as a free and full-fledged citizen is

| curtailed. Further the fact of having to attend the

| court hundred times for no purpose constitutes

| undoubtedly an inroad into his personal liberty. Whe

| such appearance are not necessary for the process of

| justice. In this case, it is not shown why the case

| has been adjourned so many times without ascertaining

| the number and the availability of the witnesses. I

| have no hesitation to come to the conclusion that the

| learned counsel for the petitioners is right in

| contending that in the circumstances of the case the

| petition should be quashed for violation of the

| fundamental right of the petitioner for speedy

| justice".          

 

 

            15. In 1982 LW Crl 112 (Kothandapillai vs State by Deputy Supdt. Of Police, Tindivanam, this Court held as follows:

 

| "The lethargic attitude of the prosecution agency

| concerned in the case, to say the least, is

| unfortunate. Apart from the existence of a prima facie

| case, the court has to see if there are grounds for

| thinking that a protracted prosecution proceeding is

| necessary in the interest of justice".

 

            16.  In 1976 Crl LJ 1835 (The Public Prosecutor vs Gundu Rao), the High Court of Andhra Pradesh held as follows:

 

| "8.   Duty is cast on the Magistrate to take coercive

| steps to compel the attendance of the witnesses.

| Merely because the prosecutiion is lethargic and

| neglectful in producing its witnesses, it does not

| follow that the Magistrte has no power to compel the

| attendance of the witnesses."

 

            17.  In 1994 Crl L J 242 (Biswanath Prasad Singh vs State of Bihar), the Apex Court has held as follows:

 

| 5.  "But there are certain circumstances in this case

| which induce us to interferein the matter. The most

| glaring one is that event hough the FIR was issued on

| 10th December, 1977, the chargesheet was filed only on

| 9th February, 1983, i.e., after a lapse of 5 years. No

| explanation is forthcoming for this extraordinary

| delay. May be, this being a case of misappropriation

| of public funds, the investigation may have taken a

| longer time but it cannot certainly takemore than five

| years, having regard to the facts and circumstances of

| the case.  Added to the said circumstances is the fact

| that even though there was no stay in this Special

| Leave Petition/Criminal Appeal, the case has not

| progressed much as stated above. Moreover, the

| appellent has been dismissed from service on these

| very allegations. His provident fund and gratuity

| amounts have been forfeited and he has crossed the age

| of super annuation.  Calling upon him now to enter

| upon defence, after 16 years, in all the facts and

| circumstances of the case, is bound to cause prejudice

| to him."          

 

            18.  In 1992 CRL LJ 2717 (1) (Abdul Rehman Antulay etc vs R.S. Nayak and another etc.,), the Hon'ble Supreme Court has held as follows:

 

| "51.... Wherever a complaint of infringement of right

| to speedy trial is made the Court has to consider all

| the circumstances of the case including those

| mentioned above and arrive at a decision whether in

| fact the proceedings have been pending for an

| unjustifiably long period. In many cases, the accused

| may himself have been responsible for the delay. In

| such cases, he cannot be allowed to take advantage of

| his own wrong. In some cases, delays may occur for

| which neither the prosecution nor the accused can be

| blamed but the system itself. Such delays too cannot

| be treated as unjustifiable  broadly speaking. Of

| course,           if it is a minor offence  not being an

| economic offence  and the delay is too long, not

| caused by the accused, different consideration may

| arise. Each case must be left to be decided on its own

| facts having regard to the principles enunciated

| hereinafter. For all the above reasons, we are of the

| opinion that it is neither advisable nor feasible to

| draw or prescribe an outer time limit for conclusion

| of all criminal proceedings. It is not necessary to do

| so for effectuating the right to speedy trial.  We are

| also not satisfied that without such an outer limit,

| the right becomes illusory."

           

        19.  Speedy trial is the fundamental right of a citizen. Having initiated criminal proceedings the  second respondent seemed to have settled in her own life after obtaining a divorce and she is not interested in prosecuting the case. The prosecution has also not chosen to dispense with the defacto complainant and examine the other witnesses. This shows the lethargic attitude of the prosecution. Moreover, the statement of the other witnesses are only  in the nature of corroborating the version of the defacto-complainant and when the defacto-complainantc hereself is not available, much credential cannot be attched thereto.

 

            20.  In a case where the wife is not consistent in her complaint of dowry harassment and cruelty against the husband and her in-laws and after obtaining a decree of divorce, she is not even appearing before the Court to prosecute further the criminal proceedings launched at her instance and by which act, the husband and the female members of his family are pointlessly expected to attend the court proceedings and thereby, the position is made clear that the wife only consider the criminal court proceedings as an empty formality, I am of the considered opinion that absolutely there may not be any purpose much less useful purpose or point in keeping the criminal proceedings pending for the years together.

 

            21.  In the result, the criminal original petition is allowed and the entire proceedings in  C.C.No.770 of 2005 on the file of the learned Judicial Magistrate, Erode as against the petitioners stands quashed.

 

 

 

 

sr

 

To

 

1.  Inspector of Police

     All Women Police Station Erode

     Erode

 

2.  The Public Prosecutor,

     High Court, Madras

3.  Judicial Magistrate,

    Erode

 

 

 

Case also uploaded to http://bit.ly/122UCym