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.27949 of 2009 1. S. Semmel 2. Pary 3. S. Pynthodi ... Petitioners vs 1. The State rep by the Inspector of Police All Women Police Station Erode Erode 2. S. Usha (impleaded as 2nd respondent as per the order of this Court in MP No.1 of 2010 dtd.12.1.2010) Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioners : Mr.S. V.Ramamurthy For R.1 : Mr.S. Rajakumar Govt. Advocate (Crl.Side) For R.2 : Mr.T.R. Ravi (Legal Aid Counsel) ORDER By consent of both sides, the matter is taken up for final disposal. The petition is filed seeking a direction to call for the records in C.C.No.770 of 2005 on the file of the learned Judicial Magistrate, Erode, and quash the same. 2. The first petitioner is the husband of the 2nd respondent Usha. Petitioner Nos.2 and 3 are the brother and sister of the 1st petitioner. On a complaint given by the 2nd respondent as against the husband and in-laws, a case has been registered by the first respondent in Cr.No.11 of 2005 on 20.4.2005 for an alleged offence under Sec.498-A IPC. After investigation, the 1st respondent filed charge sheet against the petitioners for offences under Sec.498-A, 352 and 506(ii) IPC before the learned Judicial Magistrate No.I, Erode, who took cognizance by taking the case on file as in C.C.No.770 of 2005 and the case is pending for trial from 2005. https://hcservices.ecourts.gov.in/hcservices/ 3. Now, the petitioners have filed the present application to quash the aforesaid proceedings on the ground that the 2nd respondent having left the matrimonial home on her own voliation way back on 11.4.2003, lodged the complaint only on 20.4.2005 and further, the defacto-complainant never appeared before the court from 2005 onwards and her whereabouts also are not known; therefore, in a given situation, continuance of such pointless proceedings is only an abuse of process of law. 4. Finding that the notice issued to the second respondent could not be served, this Court directed the High Court Legal Services Committee to appoint a legal aid counsel and the Committee has appointed Mr.T.R. Ravi, who is now appearing for the 2nd respondent. 5. The learned legal aid counsel also reports that despite his best efforts, the notice could not be served on the 2nd respondent at the given address. 6. Mr.S.V. Ramamurthy, learned counsel for the petitioners, by pointing out that the petitioners have been regularly attending the Court proceedings without fail for the last six years, yet the trial could not be commenced, would submit that in a case where the whereabouts of the defacto-complainant herself is not known and she is not even interested in prosecuting the case by appearing before the court, the petitioners including the women-folk of the husband's family cannot be expected to wait till the defacto-complainant turns to Court at her convenience and legally they are entitled for a speedy trial. 7. In that line, the learned counsel relied on an unreported judgment in Crl. Appeal No.773 of 2003, wherein, the Supreme court has quashed the criminal proceedings based on the complaint given by a person who has left India and settled at United States. 8. Mr.T.R.Ravi, the legal aid counsel stated that inspite of his best efforts he could not contact the 2nd respondent and would submit that speedy trial is the fundamental right of a citizen and cited the following case laws: 1989 LW Crl 175 (Sait Mohamed vs The Inspector of Police, Prohibition& Enforcement Wing, Coimbatore Rural District) 1982 LW Crl 112 (Kothandapillai vs State by Deputy Supdt. Of Police, Tindivanam 1976 Crl LJ 1835 (The Public Prosecutor vs Gundu Rao) 1994 Crl L J 242 (Biswanath Prasad Singh vs State of Bihar) https://hcservices.ecourts.gov.in/hcservices/ 1992 CRL LJ 2717 (1) (Abdul Rehman Antulay etc vs R.S. Nayak and another etc.,) 9. Heard and perused the materials available on record. 10. The 2nd respondent is the wife of the petitioner and the other petitioners are the brothers and sisters of the petitioner. The first petitioner and the 2nd respondent married were on 28.10.2002 and it is reflected in the complaint lodged that she was given 30 sovereigns of jewels and valuables at the time of marriage. As per the charge sheet, on 1.4.2003, the petitioners demanded Rs.1,00,000/- as dowry from the defacto-complainant and on 10.4.2003, the 3rd petitioner, assaulted the defacto-complainant while she was pregnant and on 11.4.2003, she was driven out of the matrimonial home and as a result, there was miscarriage. On 16.4.2005, it is alleged that the petitioners went to the house of the defacto-complainant and demanded Rs.1,00,000/- as dowry. From the charge sheet, it is further seen that one Singaru Velu, the father of the respondent, and one Kamakshi, the mother of the 2nd respondent were enquired and cited as witnesses to speak about the cruelty meted out to their daughter at the hands of the petitioners family. One Dr.Geetha was examined to speak about the miscarriage. One Swaminathan, Kaliaperumal and Rengarajan were examined to corroborate the version of the defacto-complainant and her parents and further one Subashini Rama, the wife of the 2nd petitioner was also examined, who had aleady given a complaint against her husband, the 2nd petitioner herein. 11. Thus, the main allegation in the complaint is that prior to 11.4.2003, there was demand of dowry and it continued till 16.4.2005 on which date, the demand was made at the house of the parents of the complainant. 12. In that back ground, it is seen that, admittedly, the defacto-complainant was separated in matrimonial life from the 1st petitoner on and from 11.4.2003. Till 16.4.2005, there was no complaint by the defacto-complainant. Only on 16.4.2005, she alleges an incident of the first petitioner demanding dowry. As stated earlier, the parents have corroborated the occurrence said to have taken place on 16.4.2005. The other witnesses would generally state that they came to know about the demand and cruelty only through the complainant and her parents. The prosecution have chosen to examine the wife of the 2nd petiitoner who have also filed a complaint against the 2nd petitioner. Therefore, even though it is alleged that the cruelty was met out to the defacto-complainant at the hands of the petitioners during her stay in the matrimonial home prior to 11.4.2003, admittedly, there was no immediate complaint. The demand stated to be made on 16.4.2005 and that was only by the husband and not the other petitioiners/in-laws. 13. It is stated that the defacto-complainant had filed HMOP No,.22 of 2008 for dissolution of the marriage and has obtained an order of divorce on 19.3.2008. For the present proceedings under challenge, she never appeared before the trial https://hcservices.ecourts.gov.in/hcservices/ court and the trial is pending from 2005 and her whereabouts are not known and the notice from this court also could not be served on the defacto-comoplainant and the legal aid counsel who was appointed to represent the 2nd respondent was also unable to contact the 2nd respondent. 14. In 1989 LW Crl 175 (Sait Mohamed vs The Inspector of Police, Prohibition& Enforcement Wing, Coimbatore Rural District), this Court has held as follows: 6. The fact of being charged with an offence creates certainly a stigma against a person and will cause to him certain handicaps. The status of the accused person as a free and full- fledged citizen is curtailed. Further the fact of having to attend the court hundred times forno purpose constitutes undoubtedly an inroad into his personal liberty. Whe such appearance are not necessary for the process of justice. In this case, it is not shown why the case has been adjourned so many times without ascertaining the number and the availability of the witnesses. I have no hesitation to come to the conclusion that the learned counsel for the petitioners is right in contending that in the circumstances of the case the petition should be quashed for violation of the fundamental right of the petitioner for speedy justice". 15. In 1982 LW Crl 112 (Kothandapillai vs State by Deputy Supdt. Of Police, Tindivanam, this Court held as follows: "The lethargic attitude of the prosecution agency concerned in the case, to say the least, is unfortunate. Apart from the existence of a prima facie case, the court has to see if there are grounds for thinking that a protracted prosecution proceeding is necessary in the interest of justice". 16. In 1976 Crl LJ 1835 (The Public Prosecutor vs Gundu Rao), the High Court of Andhra Pradesh held as follows: "8. Duty is cast on the Magistrate to take coercive steps to compel the attendance of the witnesses. Merely because the prosecutiion is lethargic and neglectful in producing its witnesses, it does not follow that the Magistrte has no power to compel https://hcservices.ecourts.gov.in/hcservices/ the attendance of the witnesses." 17. In 1994 Crl L J 242 (Biswanath Prasad Singh vs State of Bihar), the Apex Court has held as follows: 5. "But there are certain circumstances in this case which induce us to interferein the matter. The most glaring one is that event hough the FIR was issued on 10th December, 1977, the chargesheet was filed only on 9th February, 1983, i.e., after a lapse of 5 years. No explanation is forthcoming for this extraordinary delay. May be, this being a case of misappropriation of public funds, the investigation may have taken a longer time but it cannot certainly takemore than five years, having regard to the facts and circumstances of the case. Added to the said circumstances is the fact that even though there was no stay in this Special Leave Petition/Criminal Appeal, the case has not progressed much as stated above. Moreover, the appellent has been dismissed from service on these very allegations. His provident fund and gratuity amounts have been forfeited and he has crossed the age of super annuation. Calling upon him now to enter upon defence, after 16 years, in all the facts and circumstances of the case, is bound to cause prejudice to him." 18. In 1992 CRL LJ 2717 (1) (Abdul Rehman Antulay etc vs R.S. Nayak and another etc.,), the Hon'ble Supreme Court has held as follows: "51.... Wherever a complaint of infringement of right to speedy trial is made the Court has to consider all the circumstances of the case including those mentioned above and arrive at a decision whether in fact the proceedings have been pending for an unjustifiably long period. In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the https://hcservices.ecourts.gov.in/hcservices/ system itself. Such delays too cannot be treated as unjustifiable – broadly speaking. Of course, if it is a minor offence – not being an economic offence – and the delay is too long, not caused by the accused, different consideration may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter. For all the above reasons, we are of the opinion that it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory." 19. Speedy trial is the fundamental right of a citizen. Having initiated criminal proceedings the second respondent seemed to have settled in her own life after obtaining a divorce and she is not interested in prosecuting the case. The prosecution has also not chosen to dispense with the defacto complainant and examine the other witnesses. This shows the lethargic attitude of the prosecution. Moreover, the statement of the other witnesses are only in the nature of corroborating the version of the defacto- complainant and when the defacto-complainantc hereself is not available, much credential cannot be attched thereto. 20. In a case where the wife is not consistent in her complaint of dowry harassment and cruelty against the husband and her in-laws and after obtaining a decree of divorce, she is not even appearing before the Court to prosecute further the criminal proceedings launched at her instance and by which act, the husband and the female members of his family are pointlessly expected to attend the court proceedings and thereby, the position is made clear that the wife only consider the criminal court proceedings as an empty formality, I am of the considered opinion that absolutely there may not be any purpose much less useful purpose or point in keeping the criminal proceedings pending for the years together. 21. In the result, the criminal original petition is allowed and the entire proceedings in C.C.No.770 of 2005 on the file of the learned Judicial Magistrate, Erode as against the petitioners stands quashed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sr To 1. Inspector of Police All Women Police Station Erode Erode 2.The Judicial Magistrate II,Erode. 3.Do thro the Chief Judicial Magistrate,Erode. 4. The Public Prosecutor, High Court, Madras. 1 cc To Mr.S.V.Ramamurthy, Advocate, SR.12564 1 cc To Mr.T.R.Ravi, Advocate, SR.Ravi Crl.O.P.No.27949/2009 gv(co) pmk.15.3.2011 https://hcservices.ecourts.gov.in/hcservices/