IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-2-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.26154 of 2010 and M.P.Nos.1 and 2 of 2010 1. Manikandan 2. Settu 3. Kasiammal 4. Mahalakshmi 5. Manivannan ... Petitioners/Accused 1 to 5 vs 1. The State rep by The Deputy Superintendent of Police Ulundurpet, Sub Division Villupuram District Cr.No.639 of 2006 of Thiruvennai Nallur Police Station 2. R. Durai Kannu ... Respondents/Complainant & Defacto Complainant Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioners : M//s K. Vennila For 1st respondent : Mr.S. Rajakumar Govt. Advocate (Crl.Side) For 2nd respondent : Mr.R. Mahadevan ORDER By consent, the matter is taken up for final hearing. 2. The petition is filed seeking a direction to call for the records in P.R.C.No.10 of 2009 on the file of the learned Judicial Magistrate No.II, Ulundurpet, Villupuram District, and quash the same. 3. Petitioners are the accused in the charge sheet filed by the first respondent for the alleged offence under secs.323, 324, 302 r/w 34 IPC. The first petitioner is the son; the https://hcservices.ecourts.gov.in/hcservices/ petitioners 2 and 3 are the parents; petitioners 4 and 5 are the sister and brother of the 1st petitioner. The entire family is charged for the above said offences for the death of one Punithavalli alias Subashree, who was married to the first petitioner on 22.1.2005 and died on 3.12.2006. 4. The case of the prosecution is that at the time of marriage, the deceased brought 40 sovereigns of jewels and Rs.1,00,000/- as dowry and promised to bring 10 more sovereigns of jewels. It is said that after the marriage, the petitioners, subjected her to cruelty and demanded dowry. It is also said that they specifically demanded the promised 10 sovereigns of jewels and the 1st petitioner demanded a sum of Rs.50,000/- in the month of October 2006, to start a business. Unable to bear the torture, the said Punithavalli alias Subashree stopped taking food from 2.12.2006 and on 3.12.2006 with a common intention of do away with the deceased, the 3rd petitioner, hit the deceased with the measuring bowl on her left cheek, the 4th petitioner kicked her and the petitioners 1 and 5 caught hold of her and strangulated her with her saree and thus caused the death of the said Punithavalli. 5. The charge sheet was taken on file by the leaned Judicial Magistrate No.II, Ulundurpet and it is pending on file in P.R.C No.10 of 2009 for committal. Pending committal, the petitioners have approached this Court for quashing of the entire charge sheet on the ground that there is no plausible explanation on the side of the prosecution for the inordinate delay in lodging of the complaint/first information report with the police by the second respondent thereby the entire case of the prosecution is render suspicious and added to that, the investigation was conducted for a long period of one year and four months and in such course, no substantive material has been collected to prove the allegations against the petitioners/accused. 6. The first respondent has taken notice and filed a counter statement. The investigation has revealed from the confession of the petitioners 1 and 3 that an offence has been committed by the petitioners and on the expert opinion from the forensic laboratory would also reveal that the death is caused by asphyxiation due to strangulation. 7. Mr.M.V. Karunakaran, learned counsel for Ms.K. Vennila, counsel for the petitioners submit that there is no material evidence against the petitioners for the alleged offence. Initially a case was registered for the offence under sec.304-B IPC, as a case of dowry death and later, a charge sheet has been laid for the graver offence under Sec.302 IPC r/w 34. The learned counsel for the petitioners took us through the various statements recorded under Sec.161(3) of Cr.P.C, and highlighted the following statement given by one of the witnesses viz., Sukumaran:- https://hcservices.ecourts.gov.in/hcservices/ mf;fk; gf;fk; tprhhpj;j nghJ ,J nghy 10 gt[d; eifa[k;. U:/50.000 gzKk; th';fp tur; brhy;yp nfl;L. mth; kidtp. kfd;fs;. kfs; vy;nyhUk; nrh;e;J ePz;lehl;fshf bfhLik bra;jjhft[k; new;W moj;J Jhf;fpy; bjh';f tpl;L vy;nyhUk; Xo tpl;lhh;fs; vd;W brhd;dhh;fs; 8. The learned counsel pointed out that all the witnesses would state the same which is in the nature of hearsay evidence which is inadmissible in law. He also pointed out that when there is no direct legal evidence, the petitioners are entitled for discharge. The entire prosecution case is nothing but an harassment and abuse of process of law. 9. The learned counsel also submitted that there are no material evidence to prove the case of prosecution. The learned counsel relied on the following discussion reported in AIR 2001 SC 147 (U.P. Pollution Control Board vs Dr.Bhupendra Kumar Modi and another) 10. Per contra, the learned APP would submit that the case has been investigated by Deputy Superintendent of Police and the Post Mortem report revealed that "the deceased would appear to have been died of asphyxia due to strangulation about 36-48 hrs prior to postmortem". 11. Heard both sides and perused the materials available on record. 12. It is well settled that the power of quashing the criminal proceedings has to be exercised very sparingly and that too in the rarest of rare cases and the court cannot be justified in embarking upon an enquiry as to the reliability or the genuineness or otherwise of allegations made in the first information report or in the complaint and the extraordinary and the inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprices. 13. The Supreme Court has repeatedly held that criminal proceedings, First Information Report, or complaint is liable to be quashed only if the court comes to the conclusion that the First Information Report or complaint does not disclose any offence or it is frivolous, vexatious or oppressive. Power of quashing can be exercised by the Court only in exceptional circumstances wherein the Court is satisfied that if the complaint is allowed to be proceeded with it would amount to abuse of process of court or that the interest of justice otherwise calls for quashing of the FIR or complaint. https://hcservices.ecourts.gov.in/hcservices/ 14. In 2006 2 SCC Crl 272 (State of Orissa and another vs Saroj Kumar Sahoo) the Hon'ble Supreme Court has held i. Where it manifestly appears that there is a legal bar against the institution or continuance e.g want of sanction; ii. Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; iii. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 15. In the case of Smt. Nagawwa vs Veeranna Shivallngappa Konjalgi, reported in 1976 SCR 123, the Apex Court held as follows: Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and . (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. https://hcservices.ecourts.gov.in/hcservices/ 16. When charge sheet has already been filed, the Court has to only prima-facie be satisfied about the existence of sufficient ground for proceeding against the accused and for that limited purpose, it can evaluate materials and documents on record, but it cannot appreciate the evidence. The Court has to see whether there is any legal evidence which on appreciation may or may not support the accusation. It is well settled that while exercising the jurisdiction under Sec.482 Cr.P.C, the High court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. In the background of the above legal principles, let us consider the factual position of the case on hand. The sole argument is that some of the statements of the witnesses are hearsay. The charges are for the offence under section 302 r/w 34 IPC. The burden of proof is heavier on the prosecution and at this stage this court can not evaluate the evidences. 17. The powers possessed by the High Court under Sec.482 Cr.P.C are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on some principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court, being the highest court of the State should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and hazy, and the issues involved are of magnitude and cannot be seen in their true perspective without sufficient material. 18. Therefore, it is well settled that if there are enough materials to proceed with the framing of charges, the court need not interfere by quashing the charge sheet. 19. Accordingly, in the facts and circumstances of the present case, I do not find any valid and sufficient ground to interfere with the proceedings of the lower court in P.R.C.No.10 of 2009 on the file of the learned Judicial Magistrate No.II, Ulundurpet, Villupuram District. 20. In the result, the criminal original petition is dismissed. Consequently, the connected MP is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sr To 1. The Deputy Superintendent of Police Ulundurpet, Sub Division Villupuram District. 2. The Judicial Magistrate No.II, Udumalpet, Villupuram District. 3. -do- Through The Chief Judicial Magistrate, Villupuram. 4. The Public Prosecutor, High Court Chennai. 1 cc To Mr.K.Vennila, Advocate, SR.12567. 1 cc To Mr.R.Mahadevan, Advocate, SR.12695. Crl.O.P.No.26154 of 2010 PKB(CO) RVL 22.03.2011 https://hcservices.ecourts.gov.in/hcservices/