Partly allowed

R.Kumaresan v. State Rep. by

Madras HC27 Sept 2021CRL OP/20658/2015

Case brief

AI extract

What is this about?

The High Court dismissed a petition to quash criminal proceedings for a 498-A case. Charges against one petitioner abated due to death, and against another were dismissed. The court held the primary petitioner must return to India for trial as the Trial Court must first determine if prosecution sanction under Cr.P.C. Sec 188 was obtained for foreign offences.

What did the court decide?

Charges abated against the 3rd petitioner; Final Report quashed against the 2nd petitioner; CrPC dismissed against the 1st petitioner with direction to return to India for trial.

R.Kumaresan Vs State Rep. by — Matrimonial and Divorce | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED 27.09.2021

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CORAM

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THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN

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Crl.OP.No.20658/2015 & MP.No.1/2015

[Video Conferencing]

1.R.Kumaresan

2.S.Ramanujam

3.Rajeswari ... Petitioners

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Versus

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1.State rep. By

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The Inspector of Police All Women Police Station(West) Coimbatore City

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2.P.Rajappan ... Respondents

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Prayer : - Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the entire records in C.C.No.55/2014 on the file of the learned Additional Mahila Court, Coimbatore and quash the same.

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ORDER

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(1) Heard Mr.V.R.Balasubramaniam, learned counsel for the petitioner, Mr.E.Raj Thilak, learned Additional Public Prosecutor and Mr.V.Ilanchezian, learned counsel for the 2^nd respondent.

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(2) The present petition has been filed under Section 482 of Cr.P.C., seeking to quash further proceedings in CC.No.55/2014 now pending on the file of the learned Additional Mahila Court, Coimbatore, which Calendar Case had been taken cognizance pursuant to investigation in Crime No.7/2013 by the 1^st respondent police for alleged offence under Section 498-A IPC on a complaint given by the

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2 nd
1 st

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2^nd respondent herein. It must be kept in mind that the 2^nd respondent is the father of the wife of the 1^st petitioner/A1. The 2^nd petitioner/A2 is the father of the 1^st petitioner/A1 and the 3^rd petitioner/A3 is the mother of the 1^st petitioner/A1.

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(3) I am informed that the 3^rd petitioner/A3 died during the pendency of the present Criminal Original Petition and therefore, any charge against her, naturally abates.

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(4) The marriage between the 1^st petitioner/A1 and his wife was held on 01.12.2006 and it is stated that even immediately thereafter, the wife was criticised with an allegation that she came from a poor family. But, however, the 1^st petitioner/A1 and his wife left to Japan on 09.12.2006. They are blessed with a boy who was born on 07.09.2007. While in Japan, the wife had addressed a letter to the 2^nd respondent herein/her father and on the basis of such communication and information received, a complaint was originally given to All Women Police Station, Tiruparangundram at Madurai, who registered a FIR in Crime No.34/2012 for the offence under Section 498-A IPC and also under Section 4 of the Tamil Nadu Prohibition of Women Harassment Act, 2002. Subsequently, the investigation appears to have been transferred to the file of the 1^st respondent herein, viz., the Inspector of Police, All Women Police Station [West] in Coimbatore, who registered a FIR in Crime No.7/2013. After investigation, a Final Report was filed only with respect to the offence under Section 498-A IPC. The Final Report had been taken cognizance by the learned Additional Mahila Court, Coimbatore as CC.No.55/2014, which Calendar Case is now sought to be quashed by all the three accused persons.

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(5) As stated earlier, the charge against the 3^rd petitioner/A3 has abated owing to her death.

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(6) A reading of the FIR, which is based purely on the information received and not on direct knowledge of events, reveals the normal complains of there being differences of opinion between the married spouses and also that the 1^st petitioner herein/A1 had physically abused his wife and had also uttered words which had caused mental agony. There was also a demand for about 5 sovereigns of gold and that Rs.1 Lakh cash should be paid and there was a further demand that the property which stood in the name of the defacto complainant, should be transferred to the name of the 1^st petitioner herein/A1. The trial had hardly commenced. The documents have been served under Section 207 Cr.P.C., and the case was posted for questioning on 21.05.2015. There

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were a few hearings conducted after that particular date and thereafter, I am informed that the 1^st petitioner herein/A1 has also left to Japan where he is now residing. His wife and his son are residing together at Madurai. There is no information given as to whether any maintenance amount is being forwarded by the 1^st petitioner/A1 to his wife and I can reasonably presume that no maintenance has been provided as on date or has ever been provided.

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(7) Be that as it may, the allegations in the FIR which had been given only by the father of the wife of the 1^st petitioner/A1 disclose a horrendous state of a wife meeting demands of cash, demands for jewels and also criticisms of appearance. These are facts which will have to be established during the course of trial. However, it is also informed that the father of the wife of the 1^st petitioner/A1, viz., the 2^nd respondent herein, who was the complainant, had, in the meanwhile, died.

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(8) The prosecution will necessarily have to rely on the sole testimony of the wife of the 1^st petitioner/A1 and among the list of witnesses, her mother and her brother are also cited and also her neighbour and a tenant.

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(9) The allegations are mainly focused only against the 1^st petitioner/A1. The only allegation as against the petitioners 2 and 3 herein/A2 and A3 was that they had jointly stated immediately after the marriage that the lady had come from a poor family. There is no specific allegation that it was only stated by the 2^nd petitioner herein/A2 or only by the 3^rd petitioner herein/A3. A general statement in that regard had been mentioned. I would therefore, give necessary benefit to the 2^nd petitioner herein/A2 who today, must be about 84 years of age and would have repented any words spoken by this time, in view of the tortuous await for trial to commence in the Calendar Case.

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(10) Insofar as the 1^st petitioner herein/A1 is concerned, the learned counsel for the petitioner stated that the allegations had even, if admitted, taken place only in Japan, outside the jurisdiction of this Court and in this connection, the learned counsel for the petitioners, quite apart from drawing the attention of this Court to Section 188 Cr.P.C., also relied on [1] judgment of a learned Single Judge of this Court in Crl.OP.No.21346/2005 dated 13.08.2015 [Itta Badrinath and Others Vs. The State rep.by the Inspector of Police, All Women Police Station, W-25, T.Nagar, Chennai-17 and another] and [2] judgment of a learned Single Judge in Crl.OP [MD] No/16668/2012 dated

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(11)

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01.03.2019 in the Madurai Bench of this Court [Nithyakalyani and Others Vs. The Inspector of Police, City Crime Branch, Madurai].

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(11) The first judgment related to an allegation made by a wife over non-consummation of the marriage and that, she was subjected to cruelty in USA. The learned Single Judge, after placing reliance on the decision reported in 2014 [8] SCC 273 [Arnesh Kumar V. State of Bihar], had finally thought it fit to quash the complaint in view of the fact that sanction under Section 188 Cr.P.C., which is required for enquiry and trial by a criminal Court, had not been obtained or granted.

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(12) The second case related to a complaint under Sections 406, 420, 467, 468 and similarly related provisions under the Indian Penal Code. This was sought to be quashed and the learned Single Judge had again held that a civil suit in Singapore ha been filed against the defacto complainant therein for damages by A1. In that particular suit at Singapore, a compromise had been entered into. The learned Single Judge had, in view of the facts therein, since the provision under Section 188 Cr.P.C., had not been complied with, thought it fit to quash the Calendar Case.

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(13) Insofar as the present case is concerned, it is clear that sanction under Section 188 Cr.P.C., has no application for investigation. However, a sanction is required for enquiry and for trial by the Criminal Court for any offence committed outside India. Whether such a sanction had been obtained by the prosecution or not, is a question to be raised before the Trial Court. If the prosecution had obtained necessary sanction, then the Trial Court can proceed further as against the 1^st petitioner herein/A1, including the allegations relating to occurrences outside the country in Japan. If the prosecution has not obtained such sanction, then the trial can proceed only with respect to the allegations which have been leveled within the country, viz., the period between the date of marriage on 01.12.2006 till the date when the 1^st petitioner/A1 and his wife went to Japan on 09.12.2006.

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(14) A reading of the FIR does not prima facie reveal any offence said to have been committed by the 1^st petitioner herein/A1 in that particular period of time. At any rate, since he had gone over to Japan and had not even paid any maintenance amount to his wife, it would only be appropriate that he comes back to the country, faces the trial and the learned Additional Judge, Mahila Court, Coimbatore, examines the records to find out whether

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sanction to prosecute under section 188 Cr.P.C., had been obtained by the prosecution or not and thereafter, the Trial Court can take a considered decision.

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(15) It would also be advisable that the 1^st petitioner/A1 reaches out to his wife and to his son and make some attempt to pay maintenance amount to them for their livelihood. The marriage still subsists. The son is still his son and he has a responsibility over that son till the boy is able to look after himself on acquiring necessary educational qualifications. That responsibility is inbuilt on the 1^st petitioner/A1 in view of his marriage with his wife.

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(16) I would hold that he should face trial. Let the issue of sanction under Section 188 Cr.P.C., be addressed by the Trial Court. With the absence of necessary materials to that extent, it may not be appropriate on the part of this Court to interfere with the trial proceedings.

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(17) Therefore, the trial can go on as against the 1^st petitioner herein/A1. Final Report is quashed as against the 2^nd petitioner herein/A2. Charges abate as against the 3^rd petitioner/A3.

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(18) The 1^st petitioner/A1 should come back to this country to face necessary proceedings and let the prosecution first establish whether necessary permission had been obtained under Section 188 Cr.P.C., otherwise, restrict the allegations with respect to offence which took place in this country. The 1^st petitioner herein/A1 must take advantage of his presence in India to pay necessary maintenance to his wife and to his son.

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(19) With the said observations, the Criminal Original Petition is dismissed with respect to the 1^st petitioner/A1 and partly allowed with respect to the 2^nd petitioner/A2. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(CS II)

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//True Copy//

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Sub Assistant Registrar

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