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2016 DIGILAW 1504 (MAD)

Sethupathi v. Inspector of Police, All Women Police Station

2016-04-07

P.N.PRAKASH

body2016
ORDER : 1. This petition has been filed to call for records in C.C.No.224 of 2015 on the file of the learned Judicial Magistrate No.I, Sivagangai and quash the charge sheet and consequential further proceedings so far as the petitioners are concerned. 2. The petitioners herein are A4 to A13, who are facing prosecution in C.C.No.224 of 2015 before the learned Judicial Magistrate No.I, Sivagangai for offences under Sections 498(A), 494 r/w 109 IPC altered into Sections 498(A) r/w 109 IPC. 3. It may be relevant to state the factual matrix of the case, which is as follows: (i) On a private complaint lodged by one Vidhya/defacto complainant in C.M.P.10521 of 2012, learned Judicial Magistrate No.I, Sivagangai ordered investigation under Section 156(3) Cr.P.C., pursuant to which, the respondent police registered a case in Crime No.8 of 2013 on 01.04.2013 for offences under Sections 498(A), 494 r/w 109 IPC against 13 persons. (ii) The crux of the allegations in the FIR is that Vidhya/defacto complainant married one Muthuvel (A1) on 31.08.2007 and at the time of marriage, the parents of Vidhya had given her sufficient jewellery and other articles as dowry. On account of strain in the matrimonial relationship, both Muthuvel and Vidhya got estranged. It is alleged by Vidhya that she was informed by her relatives that Muthuvel married Saralarani (A8) on 22.08.2012 in a Temple during the subsistence of her marriage with Muthuvel and thereby Muthuvel has committed an offence under Section 494 IPC. (iii) The petitioners herein, who are A4 to A13 are the parents and close relatives of Saralarani (A8) and it is alleged that they have abetted the offence of bigamy. The parents of Muthuvel, namely, Panchavarnam (father) and Chellammal (mother) were arrayed as A2 and A3 in the FIR. (iv) The Police conducted investigation in Crime No.8 of 2013 and filed a final report before the learned Judicial Magistrate No.I, Sivagangai on 06.06.2013 only against Muthuvel (A1), Panchavarnam (A2) and Chellammal (A3) for the offence under Section 498(A) IPC and the names of these petitioners were not included in the final report. The Police also filed a separate report giving reasons for not including the petitioners herein as accused in the final report. The Police also filed a separate report giving reasons for not including the petitioners herein as accused in the final report. In the said report, the Investigating Officer has clearly stated that he was not able to gather any evidence to show that Saralarani (A8) had married Muthuvel (A1) on 22.08.2012 as alleged by Vidhya and therefore, the allegation of bigamy is false.. (v) Since the names of the petitioners were deleted by the Police in the final report, learned Magistrate thought it fit to issue notice to Vidhya to find out, if she has any objection to it. (vi) It appears that Saralarani (A8) is a Differently Abled person and she wrote the combined Civil Services Examination-II (Group-II Services) for the year 2013-2014 and was selected for the post of Junior Employment Officer in the department of Employment and Training sometime in August, 2015. For the reason best known to the Police, a supplementary final report was filed by the Investigating Officer before the learned Judicial Magistrate No.I, Sivagangai on 25.09.2015, including Saralarani and other petitioners as additional accused in the original case. Only when the petitioners received summons from the Trial Court, they knew of this. (vii) All the accused (A1 to A13) filed a quash petition in Crl.O.P.(MD) No.22587 of 2015 before this Court for quashing the entire prosecution and the same was dismissed by this Court on 30.11.2015, on the ground that it is open to the petitioners to file a discharge application. (viii) Now, Saralarani has received a show cause notice dated 17.03.2016 from Tamil Nadu Public Service Commission, asking her to show cause as to why her appointment should not be cancelled for not disclosing the pendency of the criminal case against her in the application for employment. Under such circumstances, the petitioners herein, who are A4 to A13 have approached this Court for quashing the prosecution, on the ground that it is manifestly an abuse of process of law. On notice to Vidhya, Mr. V. Sasikumar, Advocate entered appearance and argued the case. 4. Mr. V. Sasikumar, learned counsel appearing for the defacto complainant submitted that the quash petition filed by these petitioners was dismissed by this Court earlier and therefore, the second quash petition is not maintainable. 5. On notice to Vidhya, Mr. V. Sasikumar, Advocate entered appearance and argued the case. 4. Mr. V. Sasikumar, learned counsel appearing for the defacto complainant submitted that the quash petition filed by these petitioners was dismissed by this Court earlier and therefore, the second quash petition is not maintainable. 5. Per contra, Mr.D.Shanmuga Raja Sethupathi, learned counsel for the petitioners contended that the earlier quash petition was filed by all the accused, namely, A1 to A3 and the present petitioners, who were petitioners 4 to 13 in that quash petition, had failed to place before this Court the fact that the Police had dropped the prosecution against these petitioners, when the final report was filed, on the ground that there is no evidence of bigamy and thereafter, for the reason best known to the Police, the petitioners have been included in the additional report that was filed subsequently on 25.09.2015. 6. This Court gave its anxious consideration to the rival submissions. 7. As submitted by Mr.V.Sasikumar, learned counsel for the defacto complainant, the normal rule is, when a quash petition was dismissed by this Court, it is not open to the accused to file a second quash petition. I have myself followed this principle in Crl.O.P.SR.Nos.24609 and 24615 of 2015 dated 25.06.2015, on which strong reliance was placed by Mr.Sasikumar. In the said order passed by me, in Paragraph Nos.12 & 13, I have stated as follows: “12. This Court has no quarrel with the preposition laid down in the aforesaid Hon'ble Supreme Court's judgments that a second quash application is not completely out of purview and that, in certain circumstances, this Court has the power to entertain a second quash application. In Simrikhia vs. Dolley Mukharjee (1990) 2 SCC 437 , the Hon'ble Supreme Court has held that the inherent jurisdiction of the High Court cannot be involved to over ride the bar of review under Section 362 Cr.P.C. 13. Of course, as held by the Hon'ble Supreme Court in SMS Pharmaceuticals Ltd. case, that the Supreme Court has not laid down an inexorable rule of law in Simrikhia's case, that a second quash application is not maintainable at all circumstances. The facts obtaining in Simrikhia's case is similar to the facts obtaining in the case on hand.” 8. Of course, as held by the Hon'ble Supreme Court in SMS Pharmaceuticals Ltd. case, that the Supreme Court has not laid down an inexorable rule of law in Simrikhia's case, that a second quash application is not maintainable at all circumstances. The facts obtaining in Simrikhia's case is similar to the facts obtaining in the case on hand.” 8. In this case, as stated above, these petitioners were excluded in the final report filed by the Police on the specific finding of the Investigating Officer that the allegation of bigamy is false. When Saralarani (A8) was selected by Tamil Nadu Public Service Commission, from out of the blue, the Police filed a supplementary charge sheet, including Saralarani and her family members as accused, which smacks of arbitrariness. These points were not raised before this Court in the earlier petition. Hence, this Court is not inclined to dismiss this quash petition on the said ground. 9. There seems to be some force in the submission of Mr.D.Shanmuga Raja Sethupathi that on the machination of an invisible hand to spoil the career of Saralarani, the second report has been filed by the Police. This Court plodded through the 161(3) statements and the two final reports filed by the Police. Except saying that the witnesses heard that Muthuvel married Saralarani on 22.08.2012, there is no material worth its salt even for the purpose of framing a charge for the offence of bigamy against Saralarani. In the result, this Criminal Original Petition is allowed and the prosecution in C.C.No.224 of 2015 on the file of the learned Judicial Magistrate No.I, Sivagangai, pending against these petitioners, is hereby quashed. Consequently, connected miscellaneous petition is closed.