1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED 16.12.2011 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P(MD)No.14412 of 2011 and M.P(MD)No.1 of 2011 Vijayakumar ..Petitioner Vs 1. The Superintendent of Police, District Police Office, Vellore District. 2. The Enquiry officer, Deputy Superintendent of Police, District Crime Branch, District Police Office, Vellore. 3. The Inspector of Police, All Women Police Station, Vilathikulam, Tuticorin District. ..Respondents. Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus directing the second respondent to defer all the further proceedings in charge memo Na.Ka.No.H1(1)/PR 94/2010, dated 29.11.2010 till the conclusion of the criminal proceedings in C.C.No.36 of 2011 on the file of the learned Judicial Magistrate, Vilathikulam and to provide any such further relief or relives as this Court thinks fit. For Petitioner :M/s.D.Malaichamy For Respondent :Mr.T.R.Janarthanam Additional Govt.Pleader ORDER The petitioner Vijayakumar has come to this Court challenging the charge memo, dated 29.11.2010 issued in Na.Ka.No.H1(1)/PR 94/2010, on the ground that when the Criminal Case is already pending on the very same allegation from the very same complainant, compelling the petitioner to participate in the departmental proceedings on the same charges would expose his defense before the criminal case. 2. The learned counsel for the petitioner would further submit that as against the wishes of the petitioner, he was forced to marry one Rathinaselvi on 28.01.2009 at Shenbagavalliamman Kovil in Kovilpatti https://hcservices.ecourts.gov.in/hcservices/ 2 according to Hindu Religious Rituals. The said marriage was also registered with the Registrar of Marriages, Kovilpatti on 28.01.2009. Since the petitioner did not like the marriage from the date of marriage, there was no cohabitation among them till date. Further in view of the incompatability, a petition was also filed by the petitioner's wife before the Subordinate Judge of Kovilpatti in H.M.O.P.No.17 of 2010. That apart, the petitioner's wife Rathinaselvi has also filed a false complaint under Section 498 A of IPC and Section 4 of Dowry Prohibition Act before the third respondent in Cr.No.3 of 2010. Thereafter the learned Judicial Magistrate, Vilathikulam also took cognizance of the offence in C.C.No.36 of 2011 and the same is pending for further adjudication. In any event, it has been contended by the learned counsel for the petitioner that the complaint filed by the petitioner's wife under Section 498-A of I.P.C. r/w Section 4 of the Dowry Prohibition Act before the third respondent has to be proved and established before the learned Judicial Magistrate, Vilathikulam. While so, before the completion of the entire exercise, it would not be proper on the part of the second respondent to proceed against the petitioner departmentally on the very same complaint having identical allegations. The said submission finds force. It has been held repeatedly by this Court that whenever criminal cases are pending, the department should not proceed on the very same allegation as it would expose the defense of the incumbent before the criminal court. Reference can be had from the Judgement in Captain M.Paul Anthony .vs. Bharat Gold Mines Limited reported in (1999) 3 SCC 679, wherein, it has been held vividly that: "22(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case." 3. At this juncture, the learned Additional Government Pleader appearing for the respondents would submit that issuance of a charge memo does not mean that they are going to proceed immediately before the completion of the criminal case pending on the file of the learned Judicial Magistrate, Vilathikulam. Yet, he added that the petitioner can very well participate in the departmental proceedings and prove his honour and get rid of the problem once and for all. These submissions do not carry any merits. When the petitioner's wife has given a complaint against him, his parents and brother under Section 498-A of I.P.C., unless the criminal case is disposed of, the petitioner cannot be compelled to participate in a departmental proceedings as all allegations are similar which will surely expose his defense in the criminal case. 4. Be that as it may, since the very same complaint filed by the petitioner's wife is relating to Section 498-A of I.P.C read with Section 4 of Dowry Prohibition Act, I do not find any merits in issuing a charge memo repeating the same and identical allegations against the petitioner which form part of the criminal case, pending on the file of the learned Judicial Magistrate, Vilathikulam. https://hcservices.ecourts.gov.in/hcservices/ 3 5. Therefore, I am of considered opinion that proceeding of departmental action against the petitioner would certainly weaken the defense of the petitioner before the Criminal case. In view of that direction is issued to the second respondent to defer all further proceedings till the disposal of the criminal case. 6. With the above direction, the writ petition is allowed. Consequently, connected Miscellaneous petition is closed. No costs. Sd/- Assistant Registrar (Records) /True Copy/ Sub Assistant Registrar To 1. The Superintendent of Police, District Police Office, Vellore District. 2. The Enquiry officer, Deputy Superintendent of Police, District Crime Branch, District Police Office, Vellore. 3. The Inspector of Police, All Women Police Station, Vilathikulam, Tuticorin District. + 1 cc to Mr.D.Malaichamy, Advocate, SR No.44034 + 1 cc to The Special Government Pleader, SR No.44326 W.P(MD)No.14412 of 2011 16.12.2011 vsn RJ/20.12.11 (IT) 3p/6c https://hcservices.ecourts.gov.in/hcservices/