P. Leelavathi and R. Jeya vs State

R. Mala, J.—The Petitioner approaches this Court with a prayer to call for the records pertaining to C.C. No. 624 of 2009 on the file of the Judicial Magistrate No. II, Madurai and quash the proceedings as against the Petitioners herein.

The learned Counsel appearing for the Petitioners would submit that the first Petitioner is the mother-in-law of the defacto complainant and the 2nd Petitioner is the sister-in-law of the defacto complainant; the defacto complainant has given a complaint stating that the Petitioners have harassed and tortured her and on the basis of her complaint a case has been registered in crime No. 3 of 2009 for the offence punishable under Sections 498(A), 506(i) and 494 I.P.C. and 4 of Dowry Prohibition Act, which was taken on file in in C.C. No. 624 of 2009 on the file of the Judicial Magistrate No. II, Madurai.

The learned Counsel appearing for the Petitioners would submit that the 1st Petitioner is a widow lady working in the Tamil Nadu Electricity Board and from morning to evening, she used to stay at her office for discharging her duty; the defacto complainant getting a job near her father''s village within two months of marriage and went and stayed along with her parents with the consent of her husband; even in that two months, the 1st Petitioner was not in her house for long time and there is no question of harassment or torture of the defacto complainant.

He would further submit that the 1st accused has already executed a release deed in favour of her mother/1st Petitioner and her sisters stating that except blood relationship, there is no further relation between him and her mother and sisters and hence, the Petitioners are not at all having any connection with the Matrimonial Disputes of the 1st accused and the defacto complainant.

He would further submit that the 2nd Petitioner is the sister of the 1st accused and she is residing with her husband along with her children and hence, she has also not having any involvement in the matrimonial disputes of the defacto complainant and the 1st accused; the witnesses mentioned in the charge sheet are all close relatives of the defacto complainant and there is no independent witnesses. Furthermore, the factum of second marriage is not yet proved and hence, the ingredients of Section 494 I.P.C. has not been made out and thus, he prayed for the allowing of the application. To substantiate his case, he relied upon the decision Dr. Jayakumar @ Javid Kamal v. State, rep. by Sub-Inspector of Police, Guduvancheri Police Station, Kancheepuram District and Anr. reported in (2008)1 M.L.J. 425.

The learned Counsel appearing for the Respondent would rely upon the decision in Victor Auxilium and Anr. v. State rep. by Assistant Commissioner of Police, Adyar, Chennai - 20 and Anr. reported in (2008) 1 M.L.J. 236 and submit that though the offence u/s 494 of the Indian Penal Code, 1860 is a non-cognizable one, when the police have investigated the same along with other cognizable offences viz., Sections 498-A I.P.C. and Section 4 of Dowry Prohibition Act, 1961, it is to be deemed to be a cognizable offence and the police can very will investigate the offence u/s 494 I.P.C. also, along with other offences. He would further submit that in the case on hand, the question of facts can be decided only after letting oral and documentary evidence at the time of trial; there is no reason for quashing the case and thus, he prayed for the dismissal of the application. He also relied upon the decision in A. Govindarajan and Ors. v. Inspector General of Police, W-5, All Women Police Station, Chennai reported in (2007) 2 M.L.J. 1645.

Heard the learned Counsel appearing for the Petitioner as well as the learned Counsel appearing for the Respondent and perused the entire materials available on record.

The marriage between the defacto complainant and the 1st accused, who is the son of the 1st Petitioner had taken place on 03.11.2003 and she gave birth a male child. On the basis of the complaint given by the defacto complainant, a case has been registered by the Respondent police in crime No. 3 of 2009 and after investigation, charge sheet has been filed for the offence punishable u/s 498(A), 506(i) and 494 I.P.C. and 4 of Dowry Prohibition Act, which was taken on file in C.C. No. 624 of 2009 on the file of the Judicial Magistrate No. II, Madurai.

The 1st Petitioner is the mother-in-law and the 2nd Petitioner is the sister-in-law of the defacto complainant. A perusal of the document dated 28.06.2008 filed by the Petitioners would reveal that the 1st Petitioner''s son Suresh has executed the general release deed in favour of his mother and his sisters, who are the Petitioners herein and one another sister viz., Jeyalakshmi. A perusal of the F.I.R would show that the 1st accused got married one Senthila, who is the 4th accused and have a child. After completion of the investigation only, the Respondent police filed the charge sheet against the Petitioners.

Now, this Court has to consider whether the charge sheet filed by the investigating agency against the Petitioner u/s 494 I.P.C. is maintainable.

It is appropriate to consider the decision reported in Dr. Jayakumar @ Javid Kamal v. State, rep. by Sub-Inspector of Police, Guduvancheri Police Station, Kancheepuram District and Anr. reported in (2008)1 M.L.J. 425, wherein, this Court has held that no prosecution is permissible unless the prosecution is able to prove that the second marriage was duly performed with religious rites and essential ceremonies and that can be decided only at the time of trial not at this stage.

The learned Counsel appearing for the Petitioner would contend that the offence u/s 494 I.P.C. is a non cognizable one, the police has no locus-standi to investigate the matter and hence, the entire charge sheet is liable to be quashed. Now, it is appropriate to consider the decision in Victor Auxilium and Anr. v. State rep. by Assistant Commissioner of Police, Adyar, Chennai - 20 and Anr. reported in (2008) 1 M.L.J. 236, wherein, this Court has held as follows:

Para 15. While the intent of the said provision is taken for consideration with respect to the request of the Petitioners, though the offence u/s 494 I.P.C. is a non-cognizable one, since the police have investigation the same along with other cognizable offences viz., Sections 498A I.P.C. and 4 of Dowry Prohibition Act, it is to be deemed to be a cognizable offence and the hands of police are not tied in this regard and the police can very well investigate the offence u/s 494 I.P.C. also along with other offences.

In such circumstances, as per the above said citation, I am of the view that the police can very well investigate the offence u/s 494 I.P.C. along with 498A I.P.C. and 4 of Dowry Prohibition Act and I do not find any illegality in the charge sheet filed by the Respondent.

Now this Court has to see whether there is any primafacie has been made out against the Petitioners.

The learned Counsel appearing for the Petitioners would submit that the 1st Petitioner is working in Tamil Nadu Electricity Board and she has not harassed this Petitioner and there is no question of harassment or torture of the defacto complainant, no demand of dowry. But, while perusing the F.I.R. as well as the 161(3) Code of Criminal Procedure statements of the witnesses, I am of the opinion that prima facie case made out against the Petitioner and the same can be decided after letting oral and documentary evidence at the time of trial. This Court considered the decision in A. Govindarajan and Ors. v. Inspector General of Police, W-5, All Women Police Station, Chennai reported in (2007) 2 M.L.J. 1645, wherein, this Court has held as follows:

Para 6. The Hon''ble Supreme Court of India has held in Amar Chand Agarwalla Vs. Shanti Bose and Another, etc., 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.

Para 7. It is also held by the Apex Court in yet another decision in State of Delhi Vs. Gyan Devi and Others, that,

...The High Court has erred in its approach to the case as if it was evaluating the medical evidence for the purpose of determining the question whether the charge under Sections 304/34 IPC framed against the accused-Respondents 1 and 2 was likely to succeed or not. This question was to be considered by the trial Judge after recording the entire evidence in the case. It was not for the High Court to pre-judge the case at the stage when only a few witnesses (doctors) had been examined by the prosecution and that too under the direction of the High Court in the revision petition filed by the accused. The High Court has not observed that the prosecution had closed the evidence from its side. There is also no discussion or observation in the impugned order that the facts and circumstances of the case make it an exceptional case in which immediate interference of the High Court by invoking its inherent jurisdiction u/s 482 Code of Criminal Procedure is warranted in the interest of justice. On consideration of the matter we have no hesitation to hold that the order under challenge is vitiated on account of erroneous approach of the High Court and it is clearly unsustainable.

Therefore, in view of the settled principle of law laid down by the Apex Court, as per the decisions cited supra, this Court cannot exercise the power u/s 482 of Code of Criminal Procedure to quash the proceedings at this stage, viz., after the examination of five witnesses and further all the points raised by the learned Counsel for the Petitioners has to be raised only after the conclusion of the trial before the learned Trial Judge, It is open to the Petitioners to raise all the points at that time.

Considering all the above said citations, since on the basis of the complaint given by the defacto complainant, a case has been registered for the offence u/s 498(A), 494 and 506(i) I.P.C. and Section 4 of the Dowry Prohibition Act and after investigation, charge sheet has been filed, which was taken on file in C.C. No. 624 of 2009 on the file of the Judicial Magistrate No. 2, Madurai. The question as to whether the Petitioners have committed cruelty, demand of dowry and conducted the second marriage cannot be decided at the stage of quash petition and since it is only a question of fact not question of law, the same can be decided only after letting oral and documentary evidence before the trial Court.

In such circumstances, I am of the view, I find no merits in the quash application and the same is deserved to be dismissed and accordingly, this criminal original petition is dismissed.