Madras High Court
Gowrishankar vs The State Of Tamil Nadu on 11 March, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD)No.3 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.03.2022
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.3 of 2022
in
Crl.M.P.(MD)Nos.4 & 5 of 2022
Gowrishankar ...Petitioner
Vs.
1. The State of Tamil Nadu,
represented by the Inspector of Police,
Mandapam Police Station,
Ramanathapuram District.
2. Maheswari ... Respondents
Prayer: This Criminal Original Petition filed under Section 482 Cr.P.C.to call
for the records pertaining to the Charge Sheet in C.C No.129 of 2021 on the file
of learned District Munsif cum Judicial Magistrate, Rameswaram in so far as
the petitioner is concerned and quash the same.
For Petitioner : Mr.V.Sasi Kumar
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Criminal Side)
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.3 of 2022
ORDER
This petition has been filed to quash the proceedings in C.C.No.129 of 2021 on the file of the learned District Munsif cum Judicial Magistrate, Rameswaram, thereby taken cognizance for the offences under Sections 12(1)
(a) of Passport Act, Section 14 of Foreigners Act, 1946, Rule 3(a) of Passport (Entry Into India) Rules, 1950, Rule 6(a) of Passport (Entry into India), Rules, 1950 and Section 120(B) of IPC, 1860, in Crime No.294 of 2020, as against the petitioner.
2.The case of the prosecution is that the second respondent on getting secret information, on 07.08.2020 at about 2.00PM while on patrolling duty found that the first accused came to India in the year 1990 and returned back to Srilanka in the year 1994, then came to Indian during April 2017, without any document and he was residing in various places. Thereafter the first accused requested one Sureshkumar, for immigrating to Srilanka and the said Sureshkumar informed that one Gowrishankar, the petitioner herein was working under him and he would bring Rameshwaram and sent off to Srilanka. It is further alleged that on 07.08.2020, the petitioner brought the first accused in a motorchcle and reached Thonithurai at 1.30PM. Hence, the second respondent police registered a case against the accused persons https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.3 of 2022
3.The learned Counsel appearing for the petitioner would submit that the petitioner is innocent and he had not committed any offence as alleged by the prosecution. Without any base, the first respondent police registered a case in Crime No. 294 of 2020 for the offences under Sections Sections 12(1)(a) of Passport Act, Section 14 of Foreigners Act, 1946, Rule 3(a) of Passport (Entry Into India) Rules, 1950, Rule 6(a) of Passport (Entry into India), Rules, 1950 and Section 120(B) of IPC, 1860, as against the petitioner and the same has been taken cognizance in C.C.No.129 of 2021 on the file of the learned Judicial Magistrate, Rameshwaram. Hence he prayed to quash the same.
4.The learned Additional Public Prosecutor would submit that the trial has been commenced and some of the witnesses have been examined in this case.
5.Heard both sides and perused the materials available on record.
6.It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-
" 12.So far as the second ground is concerned, we are of the view that the High Court https://www.mhc.tn.gov.in/judis while hearing the application under Section 482 of Crl.O.P.(MD)No.3 of 2022 the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings.
13.In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.
7.Recently, the Hon'ble Supreme Court of India dealing in respect of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of Central Bureau of Invstigation Vs. Arvind Khanna, wherein, it has been held as follows:
“19. After perusing the impugned order and on hearing the submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of https://www.mhc.tn.gov.in/judis Cr.P.C., the High Court has recorded findings on Crl.O.P.(MD)No.3 of 2022 several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.
20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.”
8.Further the Hon'ble Supreme Court of India also held in the order dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs. K.R.Meenakshi & anr, as follows:
"9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also https://www.mhc.tn.gov.in/judis be entitled to see (i) whether the preconditions Crl.O.P.(MD)No.3 of 2022 requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged. ..............
13. A look at the complaint filed by the appellant would show that the appellant had incorporated the ingredients necessary for prosecuting the respondents for the offences alleged. The question whether the appellant will be able to prove the allegations in a manner known to law would arise only at a later stage...................."
The above judgments are squarely applicable to this case and as such, the points raised by the petitioners cannot be considered by this Court under Section 482 Cr.P.C.
9.In view of the above discussion, this Court is not inclined to quash the proceedings in C.C.No.129 of 2021 on the file of the learned Judicial Magistrate, Rameshwaram. Considering the age of the petitioner, the personal appearance of the petitioner is dispensed with and he shall be represented by a counsel after filing appropriate application. However, the petitioner shall be present before the Court at the time of furnishing of copies, framing charges, questioning under Section 313 Cr.P.C. and at the time of passing Judgment. The petitioner is at liberty to raise all the grounds before the trial Court. The trial https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.3 of 2022 Court is directed to complete the trial within a period of three months from the date of receipt of a copy of this Order.
10.Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are also closed.
11.03.2022
Index : Yes / No
Internet : Yes/ No
PNM
Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To:
1. The Judicial Magistrate, Rameshwaram.
2. The Inspector of Police, Mandapam Police Station, Ramanathapuram District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.3 of 2022 G.K.ILANTHIRAIYAN,J.
PNM ORDER IN Crl.O.P.(MD)No.3 of 2022 & Crl.M.P.(MD)Nos.4 & 5 of 2022 11.03.2022 https://www.mhc.tn.gov.in/judis