Madras High Court
R.Mohamed Faizal vs Ayesha
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 09.03.2018 DELIVERED ON : 04.10.2018 CORAM: THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Crl. R.C.No.525 of 2017 and Crl.M.P.Nos.4632 and 6766 of 2017 1.R.Mohamed Faizal 2.Rahamathullah Khan 3.Syed Sulthana ... Petitioners Vs Ayesha ... Respondent PRAYER : Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C. against the order dated 13.2.2017 in C.A.No.21 of 2016 on the file of the Principal Sessions Judge, Kancheepuram District at Chengalpattu, reversing the order dated 22.6.2016 and made over D.V.C.No.20 of 2016 on the file of the Judicial Magistrate, Alandur. For Petitioners : Mr.N.A.Nissar Ahamed For Respondent : Mr.C.V.Kumar ORDER
This Criminal Revision Case has been filed by the petitioners against the judgment of the learned Principal Sessions Judge, Chengalpattu passed in C.A.No.21 of 2016, allowing the appeal and reversing the order dated 22.6.2016 passed in D.V.C.No.20 of 2016 on the file of the learned Judicial Magistrate, Alandur.
2. The respondent has filed an application before the learned Judicial Magistrate, Alandur under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as Domestic Violence Act) restraining the petitioners from harassing the respondent both physically and mentally and also directing the petitioners to pay a sum of Rs.2,50,000/- towards maintenance, Rs.50,000/- towards litigation expenses and Rs.5,00,00,000/- towards mental torture and emotional distress caused by the petitioners.
3. In the petition filed under Section 12 of the Domestic Violence Act, the respondent alleged that the marriage between her and the first respondent was solemnized on 28.4.2014 as per Muslim rites and at the time of marriage, the respondent was given 60 sovereign of gold. After the marriage, they lived at Neelangarai, Chennai and at that time the first petitioner never attempted to consummate the marriage and he was impotent. It was alleged that the first respondent was acting lunatic and was threatening the respondent that he will kill by burning her. It was also alleged that the first respondent taken the respondent to Qatar country, where the first respondent and the third respondent have not provided food to her and also harassed her. Unable to tolerate the harassment given by the first petitioner and other petitioners, now the respondent was living with her parental home The respondent had also filed O.S.No.71 of 2015 before the Family Court, Chennai for divorce. Since the respondent was financially suffering, she filed the petition.
4. Resisting the petition, the petitioners have filed counter stating that it is incorrect to state that first petitioner was impotent. The petitioners never harassed the respondent both physically and mentally as alleged by her. After the marriage, on 26.5.2014, the first respondent gone to Qatar country and he returned to Chennai on 21.7.2014 for Ramzan festival and was living with the respondent upto 3.8.2014. On 23.9.2014, both the first petitioner and the respondent went Qatar and lived there. It is false to state that in Qatar, the first petitioner harassed the respondent and demanded rupees one crore as dowry. It is stated that in fact the respondent has not acted as a dutiful wife. The intention of the respondent was to separate the first petitioner from his parents and only with false allegations, she had filed the petition.
5. Before the learned Judicial Magistrate Court, Alandur, the respondent examined herself as P.W.1 and Exs.P1 to 9 were marked. Despite several adjournments, the petitioners have not turned up and hence, the learned Judicial Magistrate closed the evidence of the petitioners by setting them ex parte.
6. Upon consideration of oral and documentary evidence produced on the side of the respondent, the learned Judicial Magistrate, dismissed the petition filed by the respondent. Feeling aggrieved, the respondent preferred Criminal Appeal being C.A.No.21 of 2016 before the learned Principal Sessions Court, Chengalpattu.
7. By the judgment dated 13.2.2017, the learned Principal Sessions Judge, Chengalpattu allowed the appeal, thereby setting aside the order of the learned Judicial Magistrate, Alandur and made over the case to the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur to decide the case after giving further opportunities to both sides to adduce evidence. Challenging the order of the learned Principal Sessions Judge, Chengalpattu, the petitioners have filed the Criminal Revision Case.
8. I heard Mr.N.A.Nissar Ahmed, learned counsel for the petitioners and Mr.C.V.Kumar, learned counsel for the respondent and also perused the materials available on record.
9. Challenging the judgment of the learned Principal Sessions Judge, Chengalpattu, the learned counsel for the petitioners submitted that the reason of the lower appellate Court in remitting the matter for fresh disposal by re-trial is erroneous and unsustainable in law. He would submit that the lower appellate Court has failed to consider the case on merits. But it has, erroneously, based on certain assumptions and presumptions reversed the well considered order of the trial Court and remanded the matter for re-trial without any basis, which would end up in filling up the lacuna and would set up a new cause prejudicing the petitioners. Thus, the learned counsel prayed for setting aside the order of the lower appellate Court. In support of his submission, the learned counsel relied upon the following decisions:
(i)Mohd. Iqbal Ahmed v. State of Andhra Pradesh, reported in CDJ 1979 SC 473.
(ii)State of Madhya Pradesh v. Bhooraji, reported in CDJ 2001 SC 487.
(iii)Ajay Kumar Ghoshal and others v. State of Bihar and another, reported in CDJ 2017 SC 094.
(iv)The Assistant Commissioner of Customs, Prosecution Unit (Sea Port) Chennai v. Athishtarajan, reported in CDJ 2017 MHC 2981.
10. Per contra, the learned counsel for the respondent submitted that though the respondent had established her case before the learned Judicial Magistrate Court, it had dismissed the petition preferred by her. Aggrieved by the dismissal of the petition, the respondent had preferred an appeal before the learned Principal Sessions Judge, Chengalpattu. Finding that the learned Judicial Magistrate, Alandur acted in a biased manner, the learned Principal Sessions Judge, Chengalpattu made over the case to the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur with the direction decide the case on merits after giving opportunities to both parties. The learned counsel would submit that the respondent has not preferred any appeal against the remand order, however, she will co-operate the learned Judicial Magistrate concerned for fresh disposal of the case.
11. The main grievance of the petitioners is that based on certain assumptions and presumptions, the lower appellate Court reversed the order of the trial Court and made over the case to the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur for re-trial and for the purpose of filling up up a lacuna, the matter cannot be remanded to the trial Court.
12. In Mohd. Iqbal Ahmed v. State of Andhra Pradesh, supra, the Hon'ble Supreme Court held as under:
4. ... It is well settled that in a criminal case this court or for that matter any court should not ordinarily direct fresh evidence to fill up a lacuna deliberately left by the prosecution. The liberty of the subject was put in jeopardy and it cannot be allowed to put in jeopardy again at the instance of the prosecution which failed to avail of the opportunity afforded to it.
13. In Ajay Kumar Ghoshal and others v. State of Bihar and another, supra, the Hon'ble Supreme Court held:
18. As discussed earlier, the High Court has not shown as to how the alleged lapses pointed out by the High Court have resulted in miscarriage of justice. When the accused prefers an appeal against their conviction and sentence, the appellate court is duty bound to consider the evidence on record and independently arrive at a conclusion. In our considered view, the High Court erred in remitting the matter back to the trial court for fresh trial and the impugned order cannot be sustained.
14. In State of Madhya Pradesh v. Bhooraji, supra, the Hon'ble Supreme Court observed as under:
15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrence in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned a failure of justice the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.
15. In The Assistant Commissioner of Customs, Prosecution Unit (Sea Port) Chennai v. Athishtarajan, supra, the learned Single Judge of this Court held:
14. ..... It is is settled position of law that the Court should not remand the matter to fill up a lacuna deliberately left by the prosecution, and after a long lapse of time the matter cannot be remanded for the purpose of marking the sanction order.
16. Admittedly, in the case on hand, the learned Principal Sessions Judge, Chengalpattu remanded and/or made over the the case to the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur for the purpose of arriving at a decision by affording an opportunity to both parties and not to fill up a lacuna as alleged by the petitioners. Therefore, the decisions relied upon by the learned counsel for the petitioners will not applicable to the case on hand. Nothing has been produced by the petitioners to show that only to fill up the lacuna, the learned Principal Sessions Judge, Chengalpattu remanded the matter.
17. In the case on hand, while interfering with the order of the learned Judicial Magistrate and remanding the matter to the learned Judicial Magistrate, the learned Principal Sessions Judge observed as under:
In this case, the Judicial Officer happens to be a Muslim. The parties are also Muslims. In para 14 of the Order the learned Magistrate observed as follows:
@kDjhuh; kw;Wk; vjph;kDjhuh;fspd; kj g[dpj E}yhd jpUkiw Fh;Mdpy; Fwpg;gpl;Ls;sthW mth;fSf;Filapy; Vw;gLk; gpur;rpidia RK:fkhf jPh;f;f ve;j Kaw;rpa[k; kDjhunuh mtuJ bgw;nwhnuh vLf;fhky; mtru fjpapy; kDjhuh; 1k; vjph;kDjhuUld; jd;dpr;irahf tpthfuj;J nfhhp brd;id FLk;g ey ePjpkd;wj;jpy; tHf;F jhf;fy; bra;Js;sija[k; ftdj;jpy; bfhz;L Ma;t[ bra;ifapy; ,k;kDit mDkjpf;f vt;tpjkhd Kfhe;jpuKk; ,y;iy vd ,e;ePjpkd;wk; jPh;khdpf;fpwJ/@ Such discussions made by the learned Judicial Magistrate and according to the Appellants Counsel would go to show the biased approached made by the Judicial Magistrate concerned. This Court finds some force in such argument. The Courts are not supposed to answer the issue in their own Ideology. The object of the Domestic Violence Act is to protect the sufferings of the women. Admittedly, the husband and in-laws not even appeared before the Court. Why the wife chosen to make false allegation when the husband and in-laws are so affluent and accommodating? Is not explained by the respondents. Under such circumstances, this Court finds some valid force in the appeal and thus needs interference in appeal.
5. However in order to have a fair enquiry, this Court finds allowing the appeal and remanding the matter for fresh disposal is just and necessary, since the learned Judicial Magistrate, Alandur has already come to a conclusion, this Court finds remanding the matter to him again may lead to further allegations and inconvenience to the Magistrate concerned. Thus, this Court finds fit to made over the case to the Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur to decide the case on merits after giving opportunities to the petitioner and the respondent to adduce evidence.
18. It appears that though the petitioners remained ex parte in D.V.C.No.20 of 2016 filed by the respondent, the learned Judicial Magistrate, Alandur dismissed the petition filed by the respondent on the ground that there were lot of contradictions in the evidence of the respondent and the petition filed by her. Further, the learned Judicial Magistrate held that when the respondent was not able to show the date, time and place where the violence took place, by merely taking note the evidence of P.W.1, it cannot be decided that the petitioners have indulged in domestic violence. Since the respondent had failed to prove the harassment meted out by her from the hands of the petitioners, she is not entitled to the relief sought for in the petition.
19. Considering the allegations levelled against the petitioners and finding that the husband and in-laws have not even appeared before the learned Judicial Magistrate Court, the learned Principal Sessions Judge finds some valid force in the appeal and interfered in the order of the learned Judicial Magistrate, Alandur.
20. Since the learned Judicial Magistrate, Alandur has passed the order without hearing the petitioners, the learned Principal Sessions Judge arrived at a conclusion that it would be appropriate to remand the matter to the learned Judicial Magistrate. Finding that remanding the matter once again to the learned Judicial Magistrate, Alandur, may lead to further allegations and inconvenience to the learned Magistrate concerned, the learned Principal Sessions Judge, Chengalpattu made over the case to the learned Judicial Magistrate, Fast Track Court (Magisterial Level), Alandur to decide the case on merits. The said approach adopted by the learned Principal Sessions Judge appears to be fair and this Court don't want to interfere with the same.
21. It is reiterated that earlier two times the matter was referred to the Tamil Nadu Mediation and Conciliation Centre to explore possibility of settlement between the parties. The mediation report dated 9.11.2017 states that both parties appeared before the Centre along with their counsel and parties were unable to arrive at an amicable settlement. Hence, the matter was sent back to the Hon'ble Court. Considering the nature of dispute involved in this case, still it is open to the parties to settle the matter amicably, if they wish.
22. In the result, the Criminal Revision Case is dismissed. The learned Judicial Magistrate, Fast Tract Court (Magisterial Level) Alandur is directed to decide D.V.C.No.20 of 2016 afresh on merits and in accordance with law after affording opportunity to both sides by adducing oral and documentary evidence as expeditiously as possible. It is made clear that this Court has not expressed anything on the merits of the matter and/or allegations levelled against the petitioners. Consequently, connected miscellaneous petitions are closed.
04.10.2018
vs
Index : Yes
Internet : Yes
To
1.The Judicial Magistrate,
Fast Track Court (Magisterial Level),
Alandur.
2.The Principal District Judge,
Chengalpattu.
3.The Judicial Magistrate, Alandur.
M.V.MURALIDARAN, J.
vs
Pre-delivery order made in
Crl. R.C.No.525 of 2017
and
Crl.M.P.Nos.4632 and 6766 of 2017
04.10.2018