Tuesday, July 23, 2013

Case proceeding in lower court, NO quash. Continue @lower court! JUST 3 years life wasted! HC cannot interfere because husband has filed "...prayer for quashing the proceedings at belated stage ..."


Case proceeding in lower court, NO quash. Continue @lower court! JUST 3 years life wasted for the hubby and company ! 

As per honourable HC , HC cannot interfere because husband has filed a "...prayer for quashing the proceedings at belated stage ..."



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Important learning
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* case was registered on 13.12.2006
* as per husband's side the case has been instituted against them without there being any specific allegation attracting any one of the penal provisions noted in the final report
* However wife's side says the specific allegations are found in the specific allegations made in the first information report itself !!
* now don't ask me how the FIR has specific allegations when the complaint did NOT have specific allegations
* further, petitioners got bail on 18.12.2006 itself ! within 5 days of registering the case
* On 30.04.2007 itself the final report was filed. 
* Final report taken on file by learned Judicial Magistrate No.II on 23.08.2007.  
* Thereafter, within a month three witnesses were examined
* So as per HC this is a "...prayer for quashing the proceedings made at belated stage ..."
* So NO quash in 2009 .....back to JM court .....



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This judgment and other similar judgments posted on this blog was / were 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 Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo .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.

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CASE FROM JUDIS DOT NIC DOT IN SITE 

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IN THE HIGH COURT OF JUDICATURE AT MADRAS 

DATED: 08.07.2009

CORAM:

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

CRL.O.P.No.26876 of 2008


1.K.Raghu
2.Meera Bai
3.G.Karthikeyan
4.Kandasamy       .. Petitioners

         Vs.

1.State by
   Women Sub-Inspector of Police
   All Women Police Station
   Hosur, Tamil Nadu

2.Mrs.A.Saraswathi       .. Respondents


PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in C.C.287/2007 on the file of the Judicial Magistrate-II, Hosur and to quash the same.

For Petitioner : Mr.I.Saravanan

For Respondent : Mr.I.Paul Nobel Devakumar (for R1)
   Govt. Advocate (Crl.Side)
 Mr.M.J.Jaseen Mohamed (for R2)

       
 ORDER

The submissions made by Mr.I.Saravanan, learned counsel for the petitioner, by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl. Side) representing the first respondent and by Mr.M.J.Jaseen Mohamed, learned counsel for the second respondent (subsequently impleaded party) were heard.  The documents produced along with the petition and produced on either side at the time of hearing were also perused.

2. Based on the complaint of the second respondent herein (de-facto complainant) lodged on the file of All Women Police Station, Hosur, a case was registered long back in 2006 as crime No.19/2006 against the petitioners herein and two other persons for alleged offences punishable under Sections 498-A and 506(i) IPC.  After completion of investigation, a final report was submitted on 30.04.2007 alleging commission of offences punishable under Sections 498-A, 312 and 506(ii) IPC and also an offence punishable under Section 4 of Dowry Prohibition Act against six persons including the petitioners herein.  The petitioners herein figure as accused Nos.3 to 6.  

3. The present petition has been filed under Section 482 Cr.P.C with a prayer that the complaint against the petitioners should be quashed, as if the criminal proceedings has been instituted against the petitioners on a private complaint.  But the learned Judicial Magistrate No.II, Hosur has taken cognizance of the above said offences on the final report of the police submitted after investigation in Cr.No.19/2006.  The case is now pending on the file of the said court as C.C.No.287/2007.  This court need not be hyper-technical in leaning forward to reject the petition because of the mistake found in the prayer made in the petition.  In fact, what the petitioners intend to incorporate in the prayer is that the criminal proceedings initiated against them in C.C.No.287/2007 should be quashed.  

4. The petitioners have complained that the case has been instituted against them without there being any specific allegation attracting any one of the penal provisions noted in the final report.  But the learned counsel for the second respondent drew the attention of the court to the specific allegations made in the first information report itself.  Apart from that, it is the further contention of the learned counsel for the second respondent that sufficient materials had been collected during investigation to implicate the petitioners herein also.  In addition to the above said contention, the learned counsel for the second respondent, who is also supported by the learned Government Advocate (Crl. Side), argued that a petition for quashing the criminal proceedings at a belated stage should not be allowed and the same should be dismissed paving the way for the disposal of the case on merit.  In this case, though the learned counsel for the petitioners made an attempt to show that only after the receipt of summons in the criminal case they had to approach this court by way of the present petition under Section 482 Cr.P.C for quashing the criminal proceedings.

5. The learned counsel for the second respondent has brought it to the notice of this court that the petitioners knew pretty well that the case was registered against them in 2006 itself and in fact they moved a petition for anticipatory bail and got an order in December 2006 itself.  It has also been brought to the notice of this court that three witnesses were examined in 2007 itself and subsequently three more witnesses were examined and that only one witness remains to be examined.  It has also been brought to the notice of this court that the petitioners deliberately omitted to cross-examine the witnesses and protracted the case to some extent and there after have come forward with the present petition belatedly with a view to drag on the case as long as possible.  

6. In support of his contention that belated petitions under Section 482 Cr.P.C for quashing the criminal proceedings should not be allowed, the learned counsel for the respondent relied on a judgment of the Hon'ble Supreme Court (2 judge bench) in Banhisikha Roy (now Sengupta) vs. Somnath Roy and others reported in (2005) 12 SCC 500 and another judgment of the Hon'ble Supreme Court (3 judge bench) in Ashabai Machindra Adhagale vs. State of Maharashtra and others reported in 2009(2) CTC 163.  In both the cases, it has been held that the prayer for quashing the proceedings made at belated stage should not be allowed and the persons seeking such relief should be given an opportunity to raise those points before the trial court itself.  

7. In this case, the case was registered on 13.12.2006.  On 18.12.2006 itself the petitioners got an order of anticipatory bail.  On 30.04.2007 itself the final report was filed. The said final report was taken on file by the learned Judicial Magistrate No.II on 23.08.2007.  Thereafter, within a month three witnesses were examined.  Before the petitioners approached this court by way of the present petition, a number of witnesses, on the side of the prosecution had been examined. 

8. In view of the same this court comes to the conclusion that the ratio decidendi laid down by the Hon'ble Supreme Court in the above said judgments cited by the learned counsel for the second respondent applies to the facts of the case on hand.  Relying on the said view of the Hon'ble Supreme Court, this court comes to the conclusion that it is not a fit case in which the criminal proceedings can be quashed at the instance of the petitioners who have approached this court at a belated stage.

9. In the result, this petition is dismissed.  However, it is made clear that this order shall not be an impediment for the petitioners to raise all the grounds alleged in this petition as pleas of defence in the trial court.





asr/

To
1. The Women Sub-Inspector of Police
   All Women Police Station
   Hosur, Tamil Nadu


2.The Public Prosecutor
  High Court
  Madras 600 104