Madras High Court
J.Stalin vs C.Balasubramanian on 25 September, 2024
Crl.O.P.(MD)No.14818 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 09.09.2024
Pronounced on : 25.09.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.14818 of 2024
and
Crl.M.P.(MD)Nos.9273 and 9274 of 2024
J.Stalin ... Petitioner
Vs.
C.Balasubramanian ... Respondent
Prayer : This Criminal Original Petition filed under Section 528 B.N.S.S.,
to call for the records relating to the proceedings of the impugned
complaint in C.C.No.932 of 2024 on the file of the learned Judicial
Magistrate No.V, Madurai and quash the same.
For Petitioner : Mr.K.Vamanan
For Respondent : Mr.D.Shanmuga Raja Sethupathi
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.14818 of 2024
ORDER
The Criminal Original Petition has been filed, invoking Section 528 B.N.S.S., seeking orders to call for the records relating to the complaint in C.C.No.932 of 2024 on the file of the Judicial Magistrate Court No.V, Madurai and quash the same.
2. It is not in dispute that the petitioner is the son-in-law of the respondent, that the marriage between the petitioner and the respondent's daughter was solemnized on 04.09.2017, that they were blessed with a male child and that subsequently there arose misunderstanding and issues between the couple. It is also not in dispute that the respondent's daughter has filed a complaint invoking the provisions of Protection of Women from Domestic Violence Act and the same is pending in D.V.C.No.12 of 2023 on the file of the Special Mahila Court, Madurai. It is also not in dispute that the petitioner has filed a petition in H.M.O.P.No.969 of 2023 seeking restitution of conjugal rights and the same is pending on the file of the Family Court, Madurai.
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3. The respondent, by alleging that the petitioner in his petition filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, has intentionally made defamatory and libelous allegations against the respondent, has filed a private complaint under Section 200 Cr.P.C. for the offence under Section 500 IPC and that the Court of the Judicial Magistrate No.V, Madurai has taken the complaint on file in C.C.No.932 of 2024 and is pending.
4. It is also not in dispute that the petitioner was earlier working as an Assistant Professor in Sethu Institute of Technology, Kariyapatti and thereafter joined as an Assistant Professor in Mankayarkarasi Engineering College, Madurai. It is also not in dispute that the respondent after working as Manager in Indian Bank got retired.
5. The learned counsel appearing for the petitioner would mainly contend that the petition filed under Section 9 of the Hindu Marriage Act in H.M.O.P.No.969 of 2023 for restitution of conjugal rights is still pending before the Family Court, that the Family Court has not tested whether the allegations levelled in the said petition are true or not and as 3/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 such, the matter is subjudice and that therefore the impugned private complaint is not legally sustainable and the same is liable to be quashed.
6. The learned counsel appearing for the petitioner would further contend that the alleged imputations contained in the pleadings are not derogatory, that the petitioner has narrated everything that happened between himself and his wife without suppressing or screening anything within his knowledge, that the intention of the petitioner is to protect his right and interest in the restitution of conjugal rights petition and not to harm the reputation of the respondent, that the respondent never advised his daughter and never initiated any steps for reunion and he has been trying to widen the gap between the petitioner and his wife and that the alleged imputations contained in the restitution petition do not come under the category of derogatory nature.
7. The learned counsel appearing for the respondent would submit that the petitioner, after receiving the notice from the Special Mahila Court in DVC complaint, has filed the petition in H.M.O.P.No.969 of 2023 claiming restitution of conjugal rights, that after receiving the petition 4/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 copy along with summons, they came to know that the petitioner has made defamatory and libelous statement, that the respondent is a man of teetotaller and he never drinks alcohol, that he had never played any gambling or online rummy as alleged by the petitioner in the above petition, that the respondent was working as Manager in Indian Bank and he had served 30 years of unblemished service and after superannuation, he has been taking care of his wife and daughter, that the petitioner had intentionally made such defamatory allegation knowing fully-well that the allegations are not true, that the malicious statements and the publication made therein by the petitioner would amount to defamation, that the reputation of the respondent has been lowered because of the statement made by the petitioner in H.M.O.P., that the allegations levelled against the respondent have no relevancy for the petition filed for restitution of conjugal rights, that the petitioner can very well prove before the Court of the Judicial Magistrate that the allegations levelled by him are true and the same was made in good faith and that the petitioner, without facing the trial, cannot seek to quash the complaint itself by invoking Section 528 B.N.S.S. 5/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024
8. The learned counsel appearing for the petitioner would rely on a decision of this Court in the case of Alli Rani Joseph Mathew and others Vs. P.Arun Kumar reported in 2013 (1) CTC 661, wherein, the respondent-brother was claiming ownership over the property on the basis of the Will alleged to have been executed by his mother, that his sisters have filed a suit making lot of allegations against their brother that he had been harassing his mother and hence, there was absolutely no chance or occasion of their mother to execute a Will in his favour, that the respondent has then filed a complaint alleging that his sisters have raised averments which are defamatory in nature and that the said complaint was taken on file in C.C.No.50 of 2012 on the file of the Judicial Magistrate No.VII, Coimbatore. When the said complaint in C.C.No.50 of 2012 was sought to be quashed before this Court, a learned Judge of this Court has specifically held that there is no legal bar for filing a private complaint alleging that a party to a civil proceeding has made certain imputations in the pleadings before the civil Court, which are per se defamatory and the relevant passage is extracted hereunder:-
“12. At the outset, I want to state that as has been held by this Court consistently, there is no legal bar for filing a private complaint alleging that a party to a civil 6/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 proceeding has made certain imputations in the pleadings before the civil court, which are per se defamatory. I am also clear that the pendency of the said civil suit is not an impediment for the aggrieved to file a private complaint. Without waiting for the final outcome of the suit, he can very well approach the criminal court by way of a private complaint seeking to punish the accused for defamatory statements made in the pleadings, provided the averments in the pleadings are totally unconnected to or unwarranted for the issues involved in the civil suit and they are per se defamatory. In any civil proceeding, it is absolutely necessary for the party concerned to make averments relevant to the issues. If such relevant averments are not made, the civil court may not permit the party to make a plea on that subject orally and also to lead evidence. It is common knowledge that in civil suits, there cannot be any evidence let in without there being relevant pleading. In this case, the petitioners have made averments touching upon the personal conduct and the relationship between the deceased and the respondent. According to the learned Senior Counsel for the petitioners, these averments are very much relevant for the civil court to decide as to whether the unregistered Will of the year 2005, which the respondent is projecting, would have been really executed by the deceased or not. The circumstances like the relationship between the deceased and the party in whose 7/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 favour now the Will is projected and the love and affection between the parties are all relevant to this core issue as to whether the Will would have been executed by the deceased. Suppose, it is proved that the deceased was not in good terms with the respondent and they were fighting with each other frequently, it may be a circumstance to prove that the Will would not have been executed by the deceased in favour of the individual concerned. In the case on hand, the averments, which are stated to be defamatory, relate to the personal character of the respondent as well as his relationship with the deceased. These are all, in fact, relevant for the civil court to decide the issue as to whether the Will of the year, 2005 was really executed by the deceased or not. If these averments have not been made in the pleadings before the civil court, as I have already stated, the petitioners may not be permitted by the civil court to plead on that subject orally and lead evidence and as a result, they may not be in a position to disprove the Will. Therefore, it cannot be stated that these averments are totally unnecessary.”
9. The above decision is squarely applicable to the case on hand. No doubt, in the above decision case, the learned Judge has observed that the allegations levelled by the sisters are relevant for the Court to decide the 8/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 issue as to whether the Will was really executed by the deceased mother or not.
10. At this juncture, it is necessary to refer the allegations levelled by the petitioner against the respondent in the petition for restitution of conjugal rights and paragraph No.9 is extracted hereunder:-
“9.kDjhh; vjph;kDjhiu Nrh;e;J tho Ntz;b mioj;jjw;F tu kWj;Jtpl;lhh;. vjph;kDjhiu kDjhhplkpUe;J gphpf;f Ntz;Lk; vd;w nfl;l vz;zj;jpy; vjph;kDjhhpd; jfg;gdhh; nray;gl;L tUfpwhh;. vjph;kDjhhpd; jfg;gdhh; Xa;Tngw;w tq;fp Copah; Mthh;. mth; kJNghijf;F mbikahdth;.
#jhl;lj;jpy; jdJ tUkhdk; kw;Wk; jdJ FLk;g
nrhj;J KotijAk; mopj;jth;. vjph;kDjhUk;
kDjhUk; Nrh;e;J tho;e;jhy; jdf;F kJ mUe;j>
#jhl;lk; Ml> Md;iydpy; uk;kp tpisahl gzk;
fpilf;fhky; Ngha;tpLk; vd;gjhy; vjph;kDjhhpd;
jfg;gdhh; vjph;kDjhUf;F Jh;Nghjidfis toq;fp
kDjhUk; vjph;kDjhUk; Nrh;e;J tho;tij jLj;J
tUfpwhh;.”
11. As rightly contended by the learned counsel appearing for the respondent, the petitioner has raised very serious allegations against the 9/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 respondent/father-in-law. Since the respondent has specifically disputed and denied the above allegations, the petitioner can very well adduce evidence before the concerned Court to prove that the allegations are true.
More importantly, the above allegations have absolutely no relevancy for deciding the petition filed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. Hence, the contention of the petitioner that the complaint itself is not maintainable since the Family Court has not decided his petition filed under Section 9 of the Hindu Marriage Act, is absolutely devoid of merits and the same is liable for rejection.
12. No doubt, as rightly contended by the learned counsel appearing for the petitioner, the plea of good faith is a good defence and the same has to be pleaded and proved. As observed by the learned Judge of this Court in the decision above referred, good faith cannot readily be inferred and is matter for trial.
13. Except the above, the petitioner has not canvassed any other reason or groud to impugn the private complaint. 10/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024
14. The Hon'ble Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others reported in 1992 SCC (Cri) 426 has enumerated 7 categories of cases, where the power can be exercised under Section 482 of Code of Criminal Procedure and the same are extracted hereunder:-
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;11/16
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the 12/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
15. In Dr.Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra and others reported in 2019 (18) SCC 191, the Hon'ble Apex Court has specifically held that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is settled law that the inherent jurisdiction under Section 482 Cr.P.C. is wide but at the same time, the same is to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.
16. The Hon'ble Supreme Court in Kaptan Singh Vs. The State of Uttar Pradesh and others reported in 2021 (3) Crimes 247 has stated that, that Court in catena of decisions has observed that the High Court is not required to go into the merits of the allegations and/or enter into the merits 13/16 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.14818 of 2024 of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial and that question is required to be examined keeping in view, the contents of FIR/complaint and prima facie materials, if any, requiring no proof and at such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR/complaint and materials relied on.
17. A cursory perusal of the private complaint and the documents filed along with the private complaint would make it clear that there existed a prima facie case to proceed against the petitioner.
18. Considering the above facts and circumstances and also taking note of the fact that this is not a fit case to quash the private complaint against the petitioner, this Court is not inclined to grant the relief claimed.
19. In the result, this Criminal Original Petition stands dismissed. Consequently, connected Miscellaneous Petitions are closed.
25.09.2024
NCC :yes/No
Index :yes/No
14/16
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Crl.O.P.(MD)No.14818 of 2024
Internet:yes/No
csm
To
1.The Judicial Magistrate No.V,
Madurai.
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.14818 of 2024
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Crl.O.P.(MD)No.14818 of 2024
and
Crl.M.P.(MD)Nos.9273 and 9274 of 2024
Dated : 25.09.2024
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