Classic Supreme court 498aquash! Says object 2 HARASS hubby&Co. Prosecution wholly unfounded!

498A, DV, 125 package after love marriage! Case finally Quashed by Supreme court, going into facts and tearing case to shreds !! A good example of how matrimonial discords have become criminal cases in INDIA !!

The Hon, Supreme court says "…..The veiled object behind the lame prosecution is apparently to harass the appellants. We are, hence, of the view that the impugned prosecution is wholly unfounded. ……" !!!

**************** Judgement ********************

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1144 OF 2014

[Arising out of S.L.P. (Criminal) No. 8965/2013]

Swapnil and Others… Appellant (s)

Versus State of Madhya Pradesh… Respondent (s)

J U D G M E N T KURIAN, J. :

Leave granted.

2. The appellant is aggrieved by the order dated 02.09.2013 passed by the High Court of Madhya Pradesh Bench at Indore. As per the impugned order, the High Court declined to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.PC’) for quashing the proceedings and charges framed against the appellants under Section 498A, 506 Part II of the Indian Penal Code (45 of 1860) (hereinafter referred to as ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961. The appellants 2 and 3 are his father and mother respectively. The Respondent No. 2 is the wife of the first appellant. She lodged a complaint with Mahila Thana, Indore Police Station on which FIR No. 50 dated 02.05.2012 under Section 498A, 506 and 34 of IPC was registered. It was alleged in the complaint that the marriage between the first appellant and second respondent was performed on 24.06.2009 and after two months of the marriage, the appellants and the sister of the first appellant started demanding dowry. It is seen from Annexure-P3-application filed by the first appellant on 14.07.2011 under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights that the second respondent had left the matrimonial house on 23.04.2011 and thereafter she had not gone back. On 23.05.2011, a lawyer notice had also been served on the second respondent which was replied on 02.06.2011. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

During the pendency of the proceedings for restitution of conjugal rights, the second respondent, on 07.09.2011, lodged a complaint before Mahila Thana, Indore Police Station raising allegations against the appellants, the maternal uncle, maternal aunt and the sister of the first appellant. Paragraph 4 of the complaint –Annexure-P4 reads as follows:

] " 4. The accused persons yesterday on 06.09.2011
] having common intent collectively came to my parental
] house and while hurling abuses as Madarchod, Bahanchod
] etc. said that if you want life of your mother,
] father, brother and sister then you come within one
] month with Rs.1 lac cash balance 5 tola gold, Wagner
] Car which is purchased after your marriage and money
] for Maruti car otherwise your mother-father, sister
] and brother will be kidnapped and they will be killed.
] They gave threat to take over possession on my house
] and said that what wrong you have caused to us by
] sending copies in police in reply of our notice, you
] do not know us yet. When your mother, father, brother
] and sisters would be sent behind jail in false
] allegations then see govt. job of your father will be
] loosed and you would start begging on road and gave
] threat that do not dare to go in police, nobody would
] give evidence against us in colony because we have
] approach with big leaders and officers and gundas
] elements. If you go in police then proceeding will be
] done against you not against us."

3. Annexure-P5 is the Record of Proceedings dated 12.12.2011 when parties were called before Mahila Police Station. The same is extracted below:

] “ Sir, In connection with enquiry of reference
] application both the parties appeared in women police
] station and statement of both were recorded which are
] enclosed with enquiry. Applicant told that her husband
] Swapnil does not do any work/business and other
] members of in-laws house by putting demand of dowry
] cause physical and mental harassment. Let family
] counseling be done with husband so that domestic life
] may remain peaceful. Non applicant told in his
] statement that my domestic life could not run
] peacefully due to intervention of members of parental
] house of Kirti. Family counseling of both parties was
] done. There are certain family differences between
] both the parties hence both the parties were suggested
] to rehabilitate their domestic life by court
] proceeding. Report is submitted in your goodself.”

4. The first appellant on 16.04.2012 withdrew the application filed under Section 9 of the Hindu Marriage Act, 1955, since according to the first appellant the second respondent was not inclined to resume cohabitation. It was thereafter, the complaint dated 02.05.2012 leading to the impugned prosecution was filed by the second respondent. She also filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 on 17.05.2012. It seems another application under Section 125 of Cr.PC was also filed by her. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. The gist of the complaint dated 02.05.2012 reads as follows:

] “… On 30.04.2012 they said if you do not fulfill our
] demand then we would kill you, thus my husband, father
] in law, mother in law and sister in law gave threat
] for life on the issue of demand of 10 tola gold,
] maruti car and 1 lac rupees cash in dowry and have
] subjected me on physical and mental harassment now I
] have been harassed from cruelty of members of in laws
] house and I do not want to enter into any compromise
] rather I want legal proceeding. …”

6. The learned Judicial Magistrate First Class Magistrate, Indore framed the following charges:

] “ I, Sarmesh Singh Judicial Magistrate First Class
] Indore hereby frame following charge against you Anil
] S/o Ramdas R/o 73 Laxmipuri Colony, Indore:
]
] 1. You being husband of complainant Kirti subjected
] her to mental and physical torture and harassment from
] 24.06.2009 to 30.04.2012 in 73 Laxmipuri Colony
] Indore, making illegal demand of Rs.1,00,000/-, car
] and 10 tola gold as dowry and by beating her caused
] cruelty?
]
] 2. You on 30.04.2012 with intention to intimidate
] complainant Kirti gave threat to cause her death, as
] such by intimidating her caused criminal intimidation?
]
] 3. You being husband of complainant Kirit put illegal
] demand of Rs.1,00,000/-, car and 10 tola gold as dowry
] on various intervals from 24.06.2009 to 30.04.2012
] from complainant Kirti and her relatives?
]
] By doing such you have committed offence which is
] punishable under section 498A, 506 Part-2, IPC and
] section 4 of Dowry Prohibition Act, which is in my
] cognizance. I by this report order that you be tried
] in above mentioned crimes.”

7. The appellants filed Criminal Revision No. 85 of 2013 before the Sessions Court which was dismissed by Order dated 14.03.2013 by the Additional Sessions Judge, Indore. It is significant to note that even according to the learned Additional Sessions Judge “it is possible that accused Swapnil was taking care of his wife…”.

8. If the intervening developments referred to above and the two complaints are analysed carefully, it can be seen that except for the improvement with regard to the alleged intimidation on 30.04.2012, the allegations in the earlier complaint dated 07.09.2011 are exactly the same. As a matter of fact, there was an allegation with regard to criminal intimidation in the complaint dated 07.09.2011 as well, as can be seen from the extracted portion of the complaint. However, in the complaint dated 02.05.2012, there is a grave allegation on intimidation to kill, made on 30.04.2012. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9. The first appellant and second respondent had in fact solemnized their marriage at Arya Samaj Mandir on 16.06.2007 privately, as they were stated to be in love with each other for sometime. Thereafter only, in the presence of the family members, marriage was solemnized on 24.06.2009.

10. It has to be seen that admittedly the second respondent has been living separately since April, 2011. Thereafter, she had lodged a complaint on 07.09.2011 before the very same police station. The same was duly enquired into and it was closed stating that the dispute is actually between the families which are to be otherwise settled in legal proceedings. If there are such differences between families which are to be settled in legal proceedings, how such differences would constitute and give rise to a successful prosecution under Sections 498A or 506 IPC or under Section 4 of the Dowry Prohibition Act, 1961, is the crucial question. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. The second respondent has been living separately since April, 2011and hence, there is no question of any beating by the appellants as alleged by her.
The relationship having got strained ever since April, 2011, even application for restitution of conjugal rights having been withdrawn on 16.04.2012 as the second respondent was not interested to live together, it is difficult to believe that there is still a demand for dowry on 30.04.2012 coupled with criminal intimidation. The allegations are vague and bereft of the details as to the place and the time of the incident. We had called for the records and have gone through the same. The materials before the learned Judicial Magistrate First Class, Indore are not sufficient to form an opinion that there is ground for presuming that the accused appellants have committed the offence under the charged Sections. The Additional Sessions Court and the High Court missed these crucial points while considering the petition filed by the appellants under Section 397 and Section 482 of the Cr.PC respectively. The veiled object behind the lame prosecution is apparently to harass the appellants. We are, hence, of the view that the impugned prosecution is wholly unfounded. Therefore, to secure the ends of justice and for preventing abuse of the process of the criminal court, the charges framed by the Judicial Magistrate First Class, Indore in Criminal Case No. 10245 of 2012 against the accused appellants are quashed. The accused appellants are discharged. However, we make it clear that nothing contained in this judgment shall have a bearing on any proceedings between the parties regarding their matrimonial disputes before the Family Court, since our observations are only for the purpose of this judgment. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. The appeal is allowed as above.

……………………………………………..J.
(SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………..J.
(KURIAN JOSEPH)

New Delhi;
May 9, 2014.

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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

SupremeCourt: If DV filed, police 2 make enquiry frm family, neighbours, freinds, others befire filing report !! ; also a case where 182 fails !!

"…. The complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005 committed by any member of the family, the matter is to be looked upon seriously. The Police without proper verification and investigation cannot submit a report that no case is made out. Investigating Agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others. After such enquiry, the Investigating Agency may form a definite opinion and file report but it is for the Court to decide finally whether to take cognizance for any offence under any of the provisions of the Act…."

***********************************************

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1251 OF 2014

(arising out of SLP(Crl.) No.7104 of 2013)

SANTOSH BAKSHI… APPELLANT

VERSUS

STATE OF PUNJAB & ORS…. RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J.

Leave granted.

2. This appeal is directed against the order dated 12 th July, 2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Miscellaneous No.M-1834 of 2010 (O&M). By the impugned order, the High Court rejected the petition filed u/s 482 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.PC’) preferred by the appellant.

3. The case of the appellant is that she got married to the brother of respondent no.3-Vivek Kumar Bakshi on 4 th August, 2006. After marriage, she shifted to her matrimonial house at Ludhiana and just thereafter her in-laws started demanding dowry. The husband of the appellant always stood with her and protected her from various atrocities committed by in-laws and respondent no.3. When the matter became out of control the appellant on 17 th January, 2009 made a complaint to the Senior Superintendent of Police, Jalandhar (now known as Commissioner of Police, Jalandhar) alleging therein continuous harassment, beating and maltreating meted out to her in connection with dowry with specific allegations with date, time etc. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. According to the appellant, Police kept the matter pending for long at the instance of respondent no.3 and refused to take any action. No FIR was registered in spite of the fact that the complaint disclosed cognizable offence.

5. On 6 th April, 2009, the appellant filed a complaint under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as, ‘the Act’) against her in-laws. In the said case, her in-laws arrived at a compromise with the appellant that they will allow her to live in her matrimonial house at Ludhiana. They also agreed that no maltreatment will be meted out to her and they will keep her in a nice manner and they will remain bound by their statements. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

6. Further case of the appellant is that respondent no.3 having personal grudge with her husband due to greed of property submitted an affidavit on 23 rd April, 2009 before the Police Authorities. Respondent no.3 also stated that the allegations in the complaint are false and to take action u/s 182 IPC against the appellant. On 24 th April, 2009, Deputy Superintendant of Police, Jalandhar submitted a report in which the assertions made by respondent no.3 were considered and the complaint was filed in the office. On the basis of affidavit, Police submitted a Calendra No.18 dated 5 th October, 2009 in the Police Station Division No.1, which was prepared and presented in the Court by Rajesh Kumar, SI SHO Division No.1, Jalandhar. The approval for taking action against the appellant u/s 182 IPC was obtained from SSP, Jalandhar in November, 2009.

7. Aggrieved by the aforesaid false and frivolous Calendra, the appellant filed Criminal Miscellaneous No.M-1834 of 2010 u/s 482 Cr.PC before the High Court of Punjab and Haryana at Chandigarh which was rejected by the High Court by impugned order and judgment dated 12 th July, 2013. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Learned counsel for the appellant made the following submissions:

(i) The High Court has wrongly concluded that since husband of the appellant was not made a party, complaint was filed with ulterior motive.

(ii) The High Court also failed to consider that in the complaint under the Protection of Women from Domestic Violence Act, 2005, the allegations are identical to the complaint made to the Police.

9. On the other hand, according to learned counsel for the respondents, the appellant all the time filed false and frivolous complaints before the Police Authorities.

10. In the affidavit (Annexure P/3) respondent no.3 alleged that the appellant has lodged false complaint against his parents, sister, brother and brother-in-law. Name of Respondent No.3 was not there but when he helped his old parents, brother, sister and brother-in-law in shifting from Ludhiana to Jalandhar then appellant mentioned his name. Respondent no.3 further alleged that the appellant and her husband are harassing him by lodging false complaint at Ludhaina as well as at Jalandhar and requested the authorities to take legal action against them u/s 182 IPC. The SHO, P.S. Div. No.1 by note dated 1 st May, 2009 forwarded the said affidavit. The deposition of respondent no.3 was recorded by Executive Magistrate, Tehsil, District Ludhiana. However, the deposition is not on record. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

11. The Deputy Superintendent of Police, Jalandhar by letter dated 24 th April, 2009 referring to the application filed by the appellant intimated that for the purpose of investigation when the appellant was summoned she has narrated the matter in the same way as mentioned in her application. He further intimated that statement of Vivek Bakshi s/o Kewal Krishan Bakshi has got recorded. In his statement, Vivek Bakshi has stated that the application which has been moved against him by his sister-in-law is wrong and he has no dispute with her. Moreover, she is intentionally harassing him and leveling allegation of dowry against his parents and others, which is absolutely incorrect and wrong. It was further mentioned in the letter that the said case being related to a family property partition, the Police cannot interfere with the same and that a case is pending in Court and the allegations leveled by the complainant (appellant herein) regarding the misappropriation of dowry articles etc. are not proved. The dowry articles and jewellery of the appellant were lying as it is in her house and there is no truth in the application. It was recommended to file the application. On the basis of such letter, after advise of District Attorney (Legal), approval of the SSP, Jalandhar was taken and Calendra u/s 182 IPC was prepared and was ordered to be presented before the Court. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. The respondents have not disputed that the complainant-appellant earlier submitted complaint dated 17 th January, 2009 to the Senior Superintendent of Police, Jalandhar (now known as Commissioner of Police, Jalandhar). In the said complaint, allegation of continuous harassment, beating and maltreatment of the appellant for demand of dowry with specific allegations with date, time etc. were made. It is alleged that the Police Authorities kept the complaint pending for long and failed to register any FIR. In the meantime, the appellant filed an application under the Protection of Women from Domestic Violence Act, 2005. In the said case, the in-laws of appellant arrived at a comprise with the appellant and agreed to allow the appellant to live in her matrimonial house at Ludhiana. Further, they also gave assurance that the appellant will not be meted out with any maltreatment and they will keep appellant in nice manner.

13. The aforesaid fact has not been disputed by the respondents. The reading of the statement made by the parties clarifies the following facts:

(a) That the appellant was thrown out of her matrimonial house at the instance of one or other persons among the in-laws.

(b) Assurance given by in-laws that they will not maltreat the appellant makes a presumption that one or other member of the family maltreated the appellant.

(c) Assurance given by the in-laws they will keep the appellant in nice manner in future, suggests that the appellant was not treated in nice manner by one or other member of the family.

14. The complaint, if made, by any woman alleging offence under the Protection of Women from Domestic Violence Act, 2005 committed by any member of the family, the matter is to be looked upon seriously. The Police without proper verification and investigation cannot submit a report that no case is made out. The Investigating Agency is required to make proper enquiry not only from the members of the family but also from neighbours, friends and others. After such enquiry, the Investigating Agency may form a definite opinion and file report but it is for the Court to decide finally whether to take cognizance for any offence under any of the provisions of the Act. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. Section 182 IPC relates to false information, with intent to cause public servant to use his lawful power to the injury of another person and reads as follows:
]
] " 182. False information, with intent to cause public
] servant to use his lawful power to the injury of
] another person.- Whoever gives to any public servant
] any information which he knows or believes to be
] false, intending thereby to cause, or knowing it to be
] likely that he will thereby cause, such public servant-
]
] (a) to do or omit anything which such public servant
] ought not to do or omit if the true state of facts
] respecting which such information is given were known
] by him, or
]
] (b) to use the lawful power of such public servant to
] the injury or annoyance of any person, shall be
] punished with imprisonment of either description for a
] term which may extend to six months, or with fine
] which may extend to one thousand rupees, or with both."
]

16. To make out a case u/s 182 IPC, the following ingredients are to be proved:

(i) An information was given by a person to a public servant.

(ii) The information was given by a person who knows or believes such statement to be false.

(iii)Such information was given with an intention to cause or knowing it to be likely to cause (a) such public servant to do not to do anything if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person,

17. In the present case, the investigating agency has failed to show that the appellant has given information which she was knowing and believing to be false. In the investigation report it has not been reported that the appellant was knowing that the information given is false but still gave the information to harass the respondent No.3. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

18. Respondent Nos.1 and 2 having failed to make out a case u/s 182 IPC, we are of the opinion that it was a fit case to quash the proceedings u/s 182 IPC. The High Court failed to notice the relevant facts and mechanically dismissed the application u/s 482 Cr.PC.

19. For the reasons aforesaid, we set aside the impugned order dated 12 th July, 2013 passed by the High Court of Punjab and Haryana at Chandigarh, quash the complaint filed by respondent no.3 u/s 182 IPC, the order of approval granted by the SSP in November, 2009 and proceeding if initiated against the appellant. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

20. The appeal is allowed. No costs.

…………………………………………

J. (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………

J. (KURIAN JOSEPH)

NEW DELHI,

JUNE 30, 2014.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

wife files 498a,DV,divorc pack 9 days aftr marrg! Luckily HC says ALL inlaws not appear INPERSON. appear thru lawr

Kerala HC Gem, which says all in laws can appear thru lawyer, but refused to quash a complaint by a wife JUST 9 days after marriage !!

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"………..The couple had lived together only for about 9 days. They have started living separately and such separate residence is not attributable to any fault on the part of the 1st petitioner husband or his relatives. She is unwilling to cohabit. With the only purpose of causing vexation and harassment to the petitioners, proceedings have been initiated before various authorities against the petitioners. A petition for divorce is pending before the Family Court. A prosecution under Section 498 A I.P.C has already been launched. A complaint has been filed before the police. It is in addition to all these that the present petition under the Protection of Women from Domestic Violence Act, 2005 is filed by the 1st respondent through the 2nd respondent, her father. An amount of Rs.10 lakhs is prayed for in such petition. ……"

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3016 of 2008()

1. VINOD M.S/O. P.K. MURALEEDHARAN NAIR … Petitioner
2. MANOJ, S/O. P.K. MURALEEDHARAN NAIR,
3. REMADEVI, W/O. P.K. MURALEEDHARAN NAIR,
4. DEEPTHI, D/O. P.K. MURALEEDHARAN NAIR,
5. DEEPA, W/O. MANOJ, AGED 26 YEARS,

Vs

1. NAMITHA, D/O. N.VIJAYAKUMAR, … Respondent
2. N.VIJAYAKUMAR, S/O. NEELAKANTA PILLAI,
3. STATE OF KERALA, REPRESENTED BY
*****************************************************
For Petitioner :SRI.MILLU DANDAPANI
For Respondent : No Appearance
http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
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The Hon’ble MR. Justice R.BASANT

Dated :11/08/2008

O R D E R R.BASANT, J
*****************************************************
Crl.M.C. No.3016 of 2008
************************************

Dated this the 11th day of August, 2008

ORDER

Petitioners are the husband of the 1st respondent and his relatives. The 1st respondent, through her father-the 2nd respondent, had filed the petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005. The learned Chief Judicial Magistrate has taken the said petition on file as M.C.No.4 of 2008. Notice has been served on the petitioners. The petitioners have already appeared before the learned C.J.M, Thodupuzha. They have now come to this Court with this petition under Section 482 Cr.P.C with a prayer that the proceedings against them may be quashed invoking the extraordinary inherent jurisdiction.

2. What is the ground ? The learned counsel for the petitioners submits that the allegations raised are totally false and are vexatious. The couple had lived together only for about 9 days. They have started living separately and such separate residence is not attributable to any fault on the part of the 1st petitioner husband or his relatives. She is unwilling to cohabit. With the only purpose of causing vexation and harassment to the petitioners, proceedings have been initiated before various authorities against the petitioners. A petition for divorce is pending before the Family Court. A prosecution under Section 498 A I.P.C has already been launched. A complaint has been filed before the police. It is in addition to all these that the present petition under the Protection of Women from Domestic Violence Act, 2005 is filed by the 1st respondent through the 2nd respondent, her father. An amount of Rs.10 lakhs is prayed for in such petition. There is also a prayer for restoration of 94 sovereigns of gold ornaments which are allegedly retained by the respondents.

3. Powers under Section 482 Cr.P.C are to be invoked sparingly and in exceptional cases in aid of justice. Sufficient, satisfactory, compelling and exceptional reasons must be shown to exist to justify such invocation. The mere fact that the adversary makes an assertion that the allegations are false is by itself no reason to prematurely terminate the proceedings by invocation of the powers under Section 482 Cr.P.C. Disputed questions of fact cannot obviously be attempted to be resolved in proceedings under Section 482 Cr.P.C.

4. I shall carefully avoid any detailed discussions on merits about the acceptability of the allegations or credibility of the data relied upon. Suffice it to say that at the moment and with the available inputs, I find no reason to sail to the conclusion that the proceedings are vexatious or that the proceedings under Section 12 of the Protection of Women from Domestic Violence Act, 2005 deserves to be prematurely terminated by invoking the jurisdiction under Section 482 Cr.P.C.

5. The petitioners have a further grievance that the learned C.J.M is unnecessarily insisting on the personal appearance of the petitioners who include the mother in law and two sisters in law. It is submitted that unnecessary insistence on such personal appearance is causing vexation and hardship to the petitioners. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/

6. I fail to understand how, why and under what circumstances such personal appearance is insisted by the learned C.J.M. It is trite that even though proceedings under the Protection of Women from Domestic Violence Act, 2005 are initiated before a criminal court, the relief claimed is essentially and in its core, civil in nature. Evidently in the interests of expedition, the Parliament has thought it fit to entrust the responsibility of operating the Protection of Women from Domestic Violence Act, 2005 with the criminal adjudicatory structure. But that cannot evidently mean that the personal presence of the petitioners can, should, ought to or must be insisted by the learned Magistrate. If they do not appear and are not represented before the learned C.J.M, the worst consequence is only an exparte order. Unless their personal appearance is found to be necessary for any specific purpose and without specifying that specif purpose, the learned Magistrate should not insist on the personal presence of the petitioner. Ordinary on all dates of posting, they shall be permitted to appear through a counsel.

7. This Crl.M.C is, in these circumstances, dismissed. I may hasten to observe that the dismissal of this petition will not in any way fetter the rights of the petitioners to raise all appropriate and relevant contentions before the learned Magistrate in the course of the proceedings.

(R.BASANT, JUDGE)

rtr/-

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http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS DOT NIC / KERALA HC WEB SITE
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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

15 classic cases where justice held & maintenance denied to undeserving women !!

Bombay HC : NO MAINTENANCE u/s 125 Cr. P C to deserting wife

http://bit.ly/We7K4j

Allahabad HC : Major daughters (i.e.) above 18 not entitled to maintenance u.s 125 Crpc.

http://bit.ly/1n4S26s

Supreme Court of India : S125 CrPC maintenance adjustable against maint in matri. proceedings & not over & above Sec 24 HMA maint.

http://bit.ly/W5NmBP

Bombay HC : IF Wife can’t prove DV, children ALSO NOT entitled maintenance under DV

http://t.co/f4pkVFKfoB

Madras HC : Employed, earning wife NOT entitled INTerim MAINT us 24 HMA : Sathasivam J [latr CJI of India !]

http://t.co/sVzIlZpyNB

Bombay HC : No maint us 125CrPC deserting wife. But much higher (6x) maint & lumpsum 4 child living with wife

http://t.co/WLFzmDfq6w

Karnataka HC, 2005 : No Int Maint us 24 HMA for working wife (doctor). Husband to maintain kid !

http://t.co/IT7xc9D6S0

SUPREME COURT OF INDIA : Wife employed and earning a salary is NOT entitled to interim maint u/s 24 HMA, even though husband is earning four times MORE than the wife. Child – Daughter gets interim maintenance.

http://bit.ly/1mQQi0h

P&H HC : NO interim maint for wife earning 50000 pm &NO proof of husband earnings ; husb out of job

http://bit.ly/1p0wepA

Supreme court : Maintenance to be borne by husband AND wife in proportion to their salaries !!

http://bit.ly/1nqO4PM

Bombay HC 1991: IF MAINT case undr S-24 & S-125 IDENTICAL, only sec24 continues, sec125 stayed

http://bit.ly/WecFlH

DELHI HC : Ablaa WIFE already making moolah in civil case of sec 125 CrPC cannot make MORE moolah using DV !!

http://bit.ly/1kkKcSl

Madhya Pradesh HC : No Pendente Lite (Sec 24) to educated wife .

http://bit.ly/U3jBjy

Uttaranchal HC : Employed & deserting wife : NO maintenance u/s 125. Even though wife’s salary is only Rs 2200/- p.m.

http://bit.ly/1kTSrTr

Delhi HC : No Interim maintenance to wife earning Rs 56thousands per month :

http://bit.ly/1qCjCWD

Errata :

Kolkata High Court : NO ONE believes hubby/wife on earnings!! wife says hubby earns 18000, hubby say 1800!, court orders 1500 pm!!

http://bit.ly/1jtlhiq

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Bom HC 1991: IF MAINT case undr S-24 & S-125 IDENTICAL, only sec24 continues, sec125 stayed !

* Wife instituted and obtained maintenance u/s 125 CrPC [ those days there were limits on max CrPC maint !]
* Husband also paid some maintenance (for a year) in advance !
* Then wife instituted civil suit against husband and also for attachment of property or posting of solvent surity
* Husband posted solvent surity in civil case
* Then husband applied for stay of criminal case u/s 125
* Magistrate rejected the stay’
* Husband approached the high court for stay of criminal proceedings
* Bom HC stayed criminal proceedings saying "…The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy .." [ the Hon Judge refers to a civil case]
* "….It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts……"

the IMPORTANT QUESTION IS , IS THIS DECISION USED PRACTICALLY TODAY ?? are courts approached and willing to stay criminal proceedings till civil case is over ?

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Bombay High Court

Ravindra Haribhau Karmarkar vs Mrs. Shaila Ravindra Karmarkar … on 17 July, 1991

Equivalent citations: 1992 CriLJ 1845

Bench: B Wahane

JUDGMENT

1. In the instant application, the substantial question of law, in the public interest, has been raised and requires decision from this Court. The substantial question of law raised is as under : "Whether a Judicial Magistrate First Class trying an application under Section 125 of Cr.P.C., is obliged under law, to stay the proceedings, on the ground that a Civil Court of competent jurisdiction has seized the matter in a suit, in which identical pleadings are made, and same reliefs are claimed by one and the same applicant/plaintiff, in whose favour the Magistrate has already awarded interim maintenance ?"

2. The facts giving rise to the above question of law, in nutshell, are as under :

The applicant and the non-applicant are the legally married spouses. Their marriage was solmnised as per the customs and rites of Hindu Religion, some times in the year 1969 at Buldana. Out of the wed-lock, they have two issues viz. first issue is a son – Sagar who is living with the applicant while the second issue a daughter Miss Anjali is living with the non-applicant No. 1 Mrs. Shaila Karmarkar. The couple had been to Canada and U.S.A. where they stayed for 12 to 13 years along with their children. Both returned some time in the year 1984 to India and stayed at Buldana till 1986. During this period, their relations became strained and ultimately on 19/5/86, the non-applicant filed an application u/S. 125 of Cr.P.C. against the applicant for maintenance for her and the daughter. Along with the application for maintenance, the wife had also filed an application for interim maintenance @ Rs. 500/- p.m. for both the non-applicants, on the very day. The learned trial Court, after hearing the parties and considering the facts, awarded Rs. 250.0 p.m. to the wife and Rs. 150/- p.m. to the daughter, as interim relief. Since the day of the order, the applicant has paid Rs. 24,000/- to the non-applicants as maintenance allowance and that too in advance. Mr. Vidwanash, the learned counsel for the applicant submitted that the applicant has made the payment in advance till October 1991. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

3. On 15th or 16th of October 1986, the non-applicant No. 1 wife filed a regular Civil Suit No. 227/86 for permanent alimony and also for arrears of maintenance. Along with the plaint, an application for the attachment of the property before judgment was also filed. On 28-4-1989, the Joint Civil Judge, Jr. Dn., Buldana passed the following order on the said application : "Perused the application and say at Exh. 64. The prayer of the applicant is that Order of attachment before Judgment be passed or direct the defendants to furnish solvent surety of Rs. one lakh. By way of Exh. 64, the defendants showed their willingness to furnish surety of one lakh. Hence, the defendants are directed to furnish solvent surety of Rs. one lakh". http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In compliance with the above order, on behalf of the defendants, Shri W. Y. Godbole, resident of Nagpur has furnished the solvent surety before the Joint Civil Judge, Jr. Dn., Buldana. On 20/3/1991, the applicant has filed his written statement in the said Civil Suit, denying the claim of the non-applicants. The case is now posted for filing the documents.

4. The applicant filed an application to stay the proceedings of Misc. Criminal Case No. 114/86 before the Judicial Magistrate, First Class, Buldana, till the decision of the Regular Civil Suit No. 227/86. The application was opposed. After hearing the parties, the learned J.M.F.C., Buldana, rejected the application filed by the applicant for stay of the Misc. Criminal Case No. 114/86 vide his order dated 24-1-1991. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Being aggrieved by the order passed by the learned J.M.F.C. Buldana in Misc. Criminal Case No. 114/86 dated 24-1-1991, the applicant approached this Court.

6. Mr. Vidwans, the learned counsel for the applicant submitted that though the non-applicant wife instituted two proceedings, one in the Criminal Court and another in the Civil Court, but the reliefs are one and the same. The relief sought in the application u/s. 125 of Cr.P.C. is to the following effect "to direct the opponent to pay the subsistence allowance of Rs. 500/- p.m. each to both the applicants Nos. 1 and 2". In the Reg. C.S. No. 227/86, the relief claimed as per prayer clause (i) is that "It is, therefore, prayed that this Hon’ble Court be pleased to decree the claim of the plaintiffs by passing necessary orders of maintenance against the defendant, directing him to pay arrears of Rs. 7000/- to the plaintiffs and further be ordered him to provide maintenance allowance @ Rs. 500/0 p.m. each to plaintiffs i.e. total Rs. 1000/- p.m. from the date of filing of this suit and onwards permanently".

The prayers made in the application u/s. 125 of Cr.P.C. and in the Reg. C.S. No. 227/86 are one and the same.

7. Mr. Vidwans, the learned counsel for the applicant submitted that practically pleadings are identical and verbatim in both the cases. He took me through the pleadings of both cases and demonstrated that practically the paras are identical as much as they are in verbatim. Following paras of the application u/S. 125 of Cr.P.C. are identical to the paras of the plaintiff in Reg. Civil Suit. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Application u/S. 125 Reg. C.S. No. 227/86 of Cr.P.C.

4 6 5 7 6 8 7 9 8 10 9 11 10 12 11 13 12 14 13 15 14 16

Therefore, according to Mr. Vidwans, in both the litigations, the fate would be based on the same evidence.

8. The findings given by the Civil Court are binding on the Criminal Court. Therefore, as the matter is seized with the Civil Court i.e. in respect of the maintenance allowance and that too the similar amount which she alleged to be entitled in the application u/s. 125 of Cr.P.C., instead multiplying the litigations and to harass the applicant to lead the evidence in different two courts, in the interest of justice, the application pending in the court of J.M.F.C., Buldana be stayed till the decision in the Reg. C.S. No. 227/86. It is further submitted that any verdict given by the Criminal Court is not binding on the Civil Court but it is vice versa. The reliefs being the one and the same, the evidence will be common, so also the documents, it is the interest of both the parties to get the verdict from the Civil Court.

9. Mr. Vidwans, the learned counsel for the applicant relied upon the case of M/s. Bush India Ltd. v. Lekharaj Pohoomal Kewalramani reported in 1984 Criminal Law Journal 346 (Bombay). Their Lordships observed in para 7 as follows (at page 348) : "I fail to understand what is the qualitative difference between the two stands. The parties are merely formulating the same propositions in the two proceedings in different words. The distinction made by the learned Judge is without any difference, as observed by the learned Magistrate and as is also apparent from the record, the dispute in the criminal complaint also revolves on the pivot whether or not respondents are the sole agents of the petitioners for sale and export of the petitioner’s goods to the countries concerned. The learned Addl. Sessions Judge’s interpretation is clearly wrong so far as this aspect is concerned". http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In para 8, Their Lordships observed that :

"The other two reasons given by the learned Magistrate and indicated in para 6 supra, are also sound and the learned Addl. Judge has not bothered himself to consider them. The learned Magistrate’s order staying the prosecution was eminently just and the learned Addl. Sessions Judge should not have interfered with it in revision".

The reliance also been placed on the case of William J. W. Ross v. Eleanor Agnes Ross reported in AIR 1932 Sind 210 (DB) : (1933 (34) Cri LJ 548). In that case before their Lordships, the wife instituted the proceedings u/Ss. 488 and 489 of Cr.P.C. and the husband had already instituted the proceedings for divorce in the Divorce Corut. Their Lordships observed that – "I am of opinion that the learned Magistrate would have exercised a better discretion on receiving an application u/s. 488 against a husband who had already instituted proceedings in the divorce Court, if he had referred the applicant for her remedy to the Civil Court. I do not think that it was the intention of the legislature in S. 489 to encourage applicants to resort to criminal Courts up to the very time when an order was passed by a competent Civil Court. As the Civil Court was seized of the matter, it seems to me clear, it is better that the Civil Court should dispose of it, and in the circumstances which have arisen in the present case, I am of opinion that a High Court would stay proceedings in a criminal Court until the conclusion of the divorce petition. We accordingly direct the learned Magistrate to stay the hearing of the application u/s. 488, Cr.P.C., by adjournment from time to time until the conclusion of the divorce petition". http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

10. On behalf of the non-applicants, Mr. Khapre, the learned counsel, opposed the application and submitted that the remedies in the criminal Court and Civil Court are altogether different. According to him, the proceedings instituted in the Criminal Court u/s. 125 of Cr.P.C. are the summary proceedings for the immediate relief to the wife and other dependents. In the proceedings u/s 125 Cr.P.C. the Court has jurisdiction to grant maintenance allowance to extent of Rs. 500/0 to each claimant. If this amount is inadequate according to clainming spouse or other claimants, the only remedy available is Civil Suit or petition u/s. 25 of the Hindu Marriage Act, 1955.

11. In a case u/S. 125 of Cr.P.C. the non-applicant Smt. Shaila Karmarkar, entered in the witness box and now the case is posed for her cross-examination. He further submitted that the principles of res judicata are not applicable in the instant case because though the reliefs claimed in both the proceedings are one and the same, the effect is not one. He further submitted that this Court has no power under any statute to stay the proceedings. To substantiate his submissions, he placed reliance on the case of Mohanlal v. Sau. Kamlabai reported in 1985 II DMC 322 (Bom) (Nagpur Bench, S.B.). In the case before his Lordship, the wife instituted the proceedings u/s. 125 of Cr.P.C. and also husband filed an application for Judicial Separation and alimony in the Civil Court against the applicant under the provisions of the Hindu Marriage Act. An ex parte order was passed against the husband and she was awarded maintenance of Rs. 300/- p.m. The Civil Court granted Rs. 100/- p.m. as permanent alimony to the wife. In that case, the issue was raised to the effect that the principle of res judicate is applicable. His Lordship held that the Section 11 of the C.P.C. as such, is not, in terms, applicable to the proceedings u/s. 125 of Cr.P.C. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. In the instant case before me, the question of res judicata is not involved. Shri Vidwans, the learned counsel for the applicant also has not raised this issue. Therefore, the observations made in the case supra are not of any assistance to the non-applicants.

13. Reliance also been palaced on the case of In re Taralakshmi Manuprasad reported in AIR 1958 Bom 499 (DB) : (1939 (40) Cri LJ 91). In that case their Lordships observed that : "The mere existence of a decree of a Civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order u/s. 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make u/s. 488 and the Magistrate should make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid".

In the instant case before me, there is no decree passed by the Civil Court. For the same relief, the non-applicant wife knocked the doors of the Civil Court as well as of Criminal Court. So, the facts of the case which was before their Lordships of the Bombay High Court are altogether different having no relation with the facts and circumstances before me and, therefore, it is also not of any assistance.

14. Reliance has also been placed on the case of A. Joseph Fernando v. Maria Navis reported in (1987) II DMC 342 (Madras, S.B.). It is held that :

"The maintenance proceeding u/s. 125, Cr.P.C. was initiated earlier though the order in the civil suit was passed earlier. In such circumstances it is manifest that a petition u/s. 125 of Cr.P.C. is perfectly maintainable notwithstanding a Civil Court’s order for maintenance. The criminal proceedings can not be quashed".

In the instant application, the applicant has not prayed for quashing the criminal proceedings i.e. application presented u/s. 125 of Cr.P.C. The only limited prayer is that the matter being seized with the Civil Court, till the disposal of the Reg. C.S. No. 227/86, the proceedings instituted u/s. 125 of Cr.P.C. be stayed. Therefore, the facts of the case decided by the learned Court in the case supra and the facts before me, being altogether different, this case is also not of any assistance to the non-applicants. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. In a case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (DB), in respect of the same subject matter, there were two suits instituted though the relief was based on different cause of action. The subject-matter in controversy in both the suits being the same, arises out of the same contract and from the same transaction, the later suit was stayed till the decision of the earlier suit.

16. Considering the facts and circumstances and the submissions made by the learned counsel for the parties, the relief in both the cases, being one and the same, and the Civil Court being seized with the matter, in the interest of justice, the proceeding pending in the court of J.M.F.C. Buldana, be stayed till the decision of the Reg. C.S. No. 277/86.

17. The non-applicants could not be allowed to ride two horses at a time (two simultaneous proceedings in two different Coruts) and could not be permitted to continue the maintenance proceedings u/s. 125 of Cr.P.C. when they had already chosen the alternative remedy in Reg. C.S. No. 227/86. It is well settled law that the judgment of Civil Court shall prevail over the judgment of Criminal Court. The natural justice demands that parallel proceedings cannot be allowed to continue in different Courts.

18. The Civil Judge, Sr. Dn. Buldana, is directed to expedite the matter. Staying the proceedings pending in the Court of J.M.F.C., Buldana, will not cause any pre-judice to the non-applicants because they are already receiving the maintenance allowance @ Rs. 250/- p.m. for wife and Rs. 150/- p.m. for the daughter.

19. In these terms the application is allowed. Rule made absolute.

20. Ordered accordingly.

http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

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FOLLOW http://twitter.com/ATMwithDick on twitter or http://vinayak.wordpress.com/ on wordpress or http://evinayak.tumblr.com/ FOR 100s of high court and supreme court cases

regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

Corrupt judge took money in matri cases to convict hubby!! Gets caught !!

Story of how a corrupt judge demanded money from the father in law to convict the husband !!!*******************************

AUGUST 8, 2010

In the High Court of Judicature at Madras

Dated: 30.07.2010

Coram:

The Honourable Mr.Justice ELIPE DHARMA RAO
AND
The Honourable Mr.Justice K.K.SASIDHARAN

WRIT PETITION NO.15983 OF 2007

R. Kalarani … Petitioner

Versus

1. Madras High Court
rep.by its Registrar General
Chennai-60104.

2. The State of Tamil Nadu
rep.by the Secretary to Government
Law Department
Fort St.George
Chennai-60 009. … Respondents

Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to G.O.(D).No.280 Home (Cts.IA) Department dated 2.3.2007 passed by the second respondent, quash the same and direct the respondents to reinstate the petitioner in service with all consequential benefits, including arrears of pay and allowances.

For Petitioner .. Mr.AR.L.Sundaresan
Senior Counsel
for M/s.P.V.S.Giridhar Associates.

For Respondents .. Mr.A.Jenasenan
for R.1

Mr.G..Desinghu
Spl.Govt.Pleader
for R2

*****

O R D E R

ELIPE DHARMA RAO, J
The petitioner challenges the proceedings of the second respondent dated 2 March, 2007 whereby and whereunder she was dismissed from service.

2. In the affidavit filed in support of the writ petition, the petitioner would contend thus:-
(i) The petitioner was appointed as a Civil Judge (Junior Division)/Judicial Magistrate I Class as per proceedings in G.O.Ms.No.1517 dated 16.11.1999. After initial training as District Munsif, she was posted as Judicial Magistrate I Class at Dindigul.

(ii) While she was functioning as Judicial Magistrate, Dindigul, a criminal case for dowry harassment and related offences was filed by one Sundareswari in Crime No.19/1999 before All Women Police Station, Dindigul. After investigation, a charge sheet was laid against the accused before the Judicial Magistrate Court at Dindigul. The case was taken on file in C.C.No.97 of 2000. After elaborate trial, the accused was acquitted as per judgment dated 9.1.2001. The judgment was partly confirmed by the High Court.

(iii) While acquitting the accused, the petitioner passed strictures against the police officers for filing a false case. As a result, the police, the Assistant Public Prosecutor and the father of the complainant were inimically disposed of towards the petitioner. Therefore they preferred a false complaint alleging that the petitioner has demanded bribe of Rs.20,000/- from the father of the complainant for convicting the accused. The complaint was preferred on 21 February, 2001. However, after three months, the complainant Marimuthu changed the story and he has come up with a story that the petitioner has demanded bribe of Rs.2,00,000/-.

(iv) The petitioner was placed under suspension by order dated 29 November, 2001. She was served with a charge memo on 21 March, 2003 enumerating eight charges, which reads thus:-

Charge No.1:-
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul had applied for Casual Leave for one day on 22.5.2000 and permission to avail the Holidays on 20.5.2000 and 21.5.2000 to go to Madurai for personal reasons, but proceeded to Kodaikanal with family members thus you had deliberately and wantonly suppressed the facts of proceeding to Kodaikanal with ulterior motive and thereby committed the acts of dereliction of duty, suppressing the facts and giving false information to the superiors, misuse of power and abuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punishable under the Tamil Nadu Civil Services (Discipline and Appeal) Rules;

Charge No.2:
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul during the course of the trial in C.C.No.97/00 on the file of the said court demanded from Thiru B.V.R.Marimuthu one of the witnesses in the said case to hire a car for you, to proceed to Kodaikanal; that you, your family members along with the said Thiru B.V.R.Marimuthu travelled in that hired car bearing Registration No.T.N.V.2757 to Kodaikanal on 20.5.2000; that you stayed at Kodaikanal in”Valley View” Hotel, arranged by the said Thiru Marimuthu from 20.5.2000 to 22.5.2000 , that you along with your family members and the said Thiru Marimuthu met Thiru Kurian Abraham, then Chairman Kodaikanal Municipality at his residence on 20.5.2000, in connection with the said C.C.97/2000, discussed with them about the case; that you with your family members, Thiru Marimuthu and Thiru Kurian Abraham took various photographs at his residence, took tiffin along with them and thus mingled with the litigants of the case, which you ought not to have done, thereby indulged in corrupt practices and committed the acts of misuse of power, abuse of power, failure to maintain the dignity and decorum expected from a Judicial Officer and conduct unbecoming of the Judicial Officer and thus rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.3
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul, while conducting the trial in C.C.No.97/2000 on the file of the said Court, demanded a sum of Rs.20,000/- from Thiru B.V.R.Marimuthu father of the complainant Tmt.Sundareswari in the said C.C. and one of the witnesses in the said case for convicting the accused; that you received a sum of Rs.10,000/- from the said Thiru B.V.R. Marimuthu on 21.5.2000 at Kodaikanal in the presence of Thiru Kurian Abraham, Chairman, Kodaikanal Municipality thus indulged in corruption and corrupt practices and committed the acts of abuse of power, misuse of power and conduct unbecoming of a government servant and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.4
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul during the course of the trial in C.C.No.97/00 demanded from Thiru B.V.R. Marimuthu, father of the complainant Tmt.sundareswari in the said C.C and one of the witnesses in the said case to make a Judges Chair for you, that the said Thiru Marimuthu had spent a sum of Rs.5,000/- and made the chair, as demanded by you and handed over it to you; that you received the said Chair and did not pay any amount for making the said Chair, that you were using the same in the Court thus indulged in corruption and corrupt practices and committed the acts of misuse of power, abuse of power and conduct unbecoming of a government servant and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.5
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul during the course of trial in C.C.No.97/00 on the file of the said court, contacted Thiru B.V.R. Marimuthu, the father of the complainant in C.C.No.97/2000 and one of the witnesses in the said case, to come to your residence; that when he came to your residence on 1.1.2001 at 10.00 a.m. you demanded from him a sum of Rs.2,00,000/- for convicting the accused; that when he refused to the demanded amount, you on 9.1.2001 acquitted all the accused in the said CC as he did not pay the demand amount thus committed the acts of corruption and corrupt practices, abuse of power, misuse of power and conduct unbecoming of a government servant and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.6
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul had fixed an A.C.Plant in the first floor of your quarters, altering the structure of the quarters without obtaining the prior permission from the Principal District Judge, Dindigul as required; that you had not given the particulars relating thereto in the asset and liability statement submitted by you to the High Court and thereby violated the provisions of the Government Servants, Conduct Rules and Committed the acts of dereliction of duty, suppressing and conduct unbecoming of a government servant and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.7
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul in C.C.No.370/06 on the file of the said court, levied a fine of Rs.100/- in C.M.P.No.708/2000 against the accused for contempt of Court; that the said amount was ordered to be paid to the Legal Aid Authority at Dindigul, that the fine amount of Rs.100/- was collected and the receipt issued; that on verification the said amount was neither entered into the fine Register nor committed to the Government Account either on the said day or on the next day, thereby committed the acts of mis-appropriating the said amount, dereliction of duty, negligence and failed to maintain proper account in accordance to rules and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Charge No.8
That you Tmt.R. Kalarani, Civil Judge (Junior Division)/J.M.F.C. now under suspension, while functioning as Judicial Magistrate No.I, Dindigul during the course of hearing in C.C.No.165/2000 when the A.P.P.II attached to the said court was on Medical Leave and the incharge A.P.P had not appeared before you on the said day, that you had recorded in the notes paper unilaterally treating P.Ws.1 to 3 as hostile witnesses without the endorsement of the A.P.P.II or in charge A.P.P concerned and thus committed the acts of dereliction of duty, negligence, violation of court procedure and falsification of Court records and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules.”

(v) The petitioner submitted her explanation on 5 May, 2003 denying the charges. She also produced as many as seventeen documents as annexures, to show the falsity of the case pleaded by the complainant. However, her explanation was not accepted and as such an enquiry was ordered into the charges. The enquiry commenced on 25 June, 2005. The Enquiry Officer conducted the enquiry in a hasty and prejudiced manner. Ultimately, the Enquiry Officer reported that the petitioner was guilty of all the charges. After the enquiry report dated 14 October, 2005, the petitioner was given an opportunity to submit a further representation. Accordingly, the petitioner submitted her representation, pointing out the infirmities in the enquiry and in the findings of the Enquriy Officer. However without a fair and objective consideration of the explanation and ignoring her defence totally, an order of removal was passed on 2 March, 2007. Feeling aggrieved, the petitioner has filed this writ petition.

3. The first respondent has filed a counter in answer to the contentions raised in the writ petition. The material contentions read thus:-

(i) There were series of complaints of corruption against the petitioner in the year 2001 and the complaints were referred to the Vigilance Cell of the High Court. The Vigilance Cell, after enquiry, submitted a report, based on which, charges were framed against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The Principal District Judge, Tirunelveli was appointed as the enquiry officer to enquire into the charges. Subsequently, the Principal District Judge, Dindigul was appointed as the Enquiry Ofifcer. A detailed enquiry was conducted by the Enquiry Officer duly complying with the principles of natural justice and he held, charges 2 to 6 and 8 as proved and charge No.7 as partly proved.

(ii) The findings of the Enquiry Officer were placed before the Administrative Committee and the Committee, at its meeting held on 4 April, 2006, resolved to accept the findings of the Enquiry Officer and directed to furnish a copy of the findings to the petitioner for further representation.

(iii) The representation received from the petitioner was placed before the Administrative committee on 8 August, 2006 and thereafter, before the Full Court, by circulation. The Full Court, after considering the findings of the Enquiry Officer and the reply submitted by the petitioner, resolved to accept the findings of the Enquiry Officer and it was further resolved to remove the petitioner from service. Accordingly, the Government was addressed for issuing orders, imposing the penalty of removal from service on the officer. Accordingly, the impugned order was passed.

4. The learned Senior Counsel for the petitioner made extensive submissions in the light of the evidence adduced before the Enquiry Officer as well as his report. The principal contentions read thus:-

(a) The complainant Marimuthu in his original complaint stated that the petitioner demanded a sum of Rs.20,000/-. However, subsequently, he changed his version and alleged that there was a demand for a sum of Rs.2,00,000/-. Therefore, the evidence of such untrustworthy and an interested witness cannot be believed.

(b) The complaint was preferred only after delivery of the judgment in C.C.No.97 of 2000. The complainant was aggrieved by the acquittal of the accused. It was not a bonafide complaint, as it was made with a view to tarnish the image of the Judicial Officer and to wreak vengeance against her.

(c) The petitioner, though initially informed the officers that she was proceeding to Madurai, subsequently informed the Court staff over phone that her journey was only to Kodaikanal. She stayed only in a private hotel. Therefore, there was nothing wrong in changing the destination and, as such, the charge relating to her journey to Kodaikanal has no basis.

(d) The petitioner has no acquaintance with the complainant Marimuthu. Therefore, it cannot be said that she was in the company of the witness, though in the photograph taken from the premises, he was also present.

(e) P.W.2 Kurian Abraham, in his evidence before the Enquiry Officer, submitted that he has not seen the actual acceptance of money by the petitioner. According to him, only a cover was given to the petitioner by the complainant. However, the complainant in his evidence as well as in the complaint submitted that the amount was paid to the petitioner in the presence of P.W.2. Therefore, no credence could be attached to the evidence of such witness, whose evidence is full of contradictions.

(f) P.W.2 – Kurian Abraham was not a man of good character as he was involved in land grabbing and other offences. Therefore, the evidence of such a person must be ignored.

(g) Though there were other complaints also preferred against the petitioner, all those complaints were found to be false later and the complainants’ named therein informed the Enquiry Officer that they have not made any such complaints. Therefore, there was a conscious attempt to implicate the petitioner in false charges.

5. In reply, the learned counsel for the first respondent would contend thus:
(a) The receipt of money by the petitioner was proved through the evidence of P.W.1 – Marimuthu and P.W.2 – Kurian Abraham.

(b) The photographs taken on 21.5.2000 would clearly prove the presence of the petitioner along with the complainant and therefore, the petitioner cannot be heard to say that she was not aware of the complainant, who was very much present in the residence of P.W.2 on the date of her visit.

(c) The petitioner has also made the complainant to procure a chair and the same was proved through the evidence of one S.M.Pandi P.W.5. Therefore there were clinching evidence against the petitioner which only made the Enquiry Officer to hold all the charges proved.

6. The petitioner was functioning as Judicial Magistrate I Class at Dindigul. A case in C.C.No.97 of 2000 was pending on her file. P.W.1 -Marimuthu and her daughter Sundareswari/the de-facto complainant were examined on 17.5.2001. Therefore, the petitioner cannot be heard to say that she has not seen the complainant Marimuthu before.

7. The petitioner left the Headquarters on the premise that she was proceeding to Madurai. However, she changed her programme and proceeded to Kodaikanal on 20.5.2000. Admittedly, on 21.5.2000 she was found in the residence of P.W.2 Thiru Kurian Abraham. P.W.1- Marimuthu was also there along with him. Various photographs taken from the bungalow of P.W.2 would clearly show the presence of P.W.1 along with the petitioner.

8. It is true that the complainant has stated that money was paid in the presence of P.W.2. When P.W.2 was examined as a witness, he has, very categorically, stated that while the petitioner was sitting in the hall of his house, P.W.1 Marimuthu had given a cover to her and he did not know as to what was there in the cover. It was also his evidence that both of them spoke for sometime and thereafter Marimuthu told him that he had given Rs.10,000/- to the Magistrate. Even though P.W.2 was cross examined at length, he consistently took the stand that a cover was given to the petitioner in his presence. We do not find any reason to disbelieve the evidence of P.W.2. Even according to the petitioner, P.W.2 has no animosity towards her. Though an attempt was made to show as if there were criminal cases pending against P.W.2, subsequently, it was brought out that those cases ended in his favour, holding him not guilty of the charges levelled against him. Merely because there were criminal cases against P.W.2 earlier, it cannot be said that his evidence has to be rejected in toto. The evidence of P.W.2 has to be considered in the light of the photographs taken from his bungalow. Those photographs give a clear indication that the petitioner was in the company of P.Ws.1 and 2. The Assistant Public Prosecutor was also present along with the petitioner on 21.5.2000 in the bungalow of P.W.2. The photographs would clearly show that the witness Marimuthu was talking to the petitioner as well as to her husband. Thus, the presence of the petitioner along with P.W.2 is beyond dispute. The petitioner being a Judicial Officer has no business to go to a private residence and to remain there in the company of the father of the complainant, whose case was pending before her.

9. It is true that P.W.1 has improved his case subsequently. Originally it was his case that the demand was for a sum of Rs.20,000/-. Subsequently he had changed his version and projected as if the petitioner demanded a sum of Rs.2,00,000/-. The change of the version, subsequently, cannot be taken to disbelieve the evidence given by P.W.1 in its entirety. Things would have been different in case the petitioner was not found in the company of P.W.1. She was found at Kodaikanal with P.W.1. The photographs speak volumes themselves. The strict principles of the Evidence Act, requiring proof beyond reasonable doubts, have no application to the disciplinary proceeding and what is required is the preponderance of probability.

10. From what has been discussed supra, it is clear that there were clinching evidence against the petitioner in respect of the charges relating to receipt of illegal gratification by her from the father of the de-facto complainant in a criminal case. Therefore, we hold that the findings recorded by the Enquiry Officer, pertaining to charges 1 to 3, were supported by sufficient evidence.

11. The fourth charge relates to procurement of a chair by the petitioner through P.W.1 at the cost of Rs.5,000/-. The evidence of P.W.5 Pandi, who made a chair as well as the evidence of P.W.6 Sivakumar gives a clear indication that the chair was ordered by P.W.1 at the instance of the petitioner. It was the evidence of P.W.5 that the amount was paid only by P.W.1 and the chair was delivered in the residence of the petitioner.

12. Though P.W.5 was cross examined by the petitioner, his evidence with respect to making the chair and delivery of the same to the petitioner remain unchallenged. Therefore charge No.4 was also proved.

13. Since the finding in respect of charges 1 to 4 are sufficient for arriving at an irresistible conclusion that the petitioner was involved in acts of corruption, which is unbecoming on the part of a Judicial Officer, there is no necessity to look into the other charges, as it will not at all tilt the balance in favour of the petitioner.

14. The learned Senior Counsel placed reliance on the following judgments.
(i) AIR 1988 SC 1395 (Ishwar Chand Jain v. High Court of Punjab and another).
(ii) 2007 (4) SCC 247 (Ramesh Chander Singh v. High Court of Allahabad and another).
(iii) 1993(2) SCC 49 (UOI & another v. R.K.Desai)
(iv) 2001(6) SCC 491 (P.C. Joshi v. State of UP & Others)
(v) 1998(5) SCC 493 (R.C.Sood v. High Court of Rajasthan & Others)
(vi) 1999 (7) SCC 409 (Zunjarrao Bhikaji Nagarkar v. UOI & Others)
(vii) 2004(3) Law Weekly 230 (S. Thirupathy v. State of Tamil Nadu and another)

(i) In Iswar Chand case (AIR 1988 SC 1395), an anonymous complaint was received against the Judicial Officer. In the said case, there were certain mistakes committed by the judicial officer in the initial stage of his service and it was found that orders were passed without there being any corrupt motive. It was only in such circumstances, the Supreme Court observed that if judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field, the subordinate judiciary will not be able to administer justice in an independent and honest manner.

(ii) In Ramesh Chander Singh case (2007(4) SCC 247), again it was for initiating action against the judicial officer on the basis of the judicial order passed by him. The Supreme Court held that for initiation of such proceedings, there should be strong grounds to suspect the officer’s bona fides and the order itself should be actuated by malice, bias or illegality.

(iii) In R.K.Desai’s case (1993(2) SCC 49), the misconduct was one relating to the decision taken by an officer in exercise of judicial/quasi-judicial function. The Supreme Court held that no disciplinary action would lie even though the decision was palpably erroneous.

(iv) In P.C.Joshi case (2001(6) SCC 491), the District Judge incharge granted stay of disconnection of telephone for non-payment in a consumer dispute case filed by a Senior Government doctor. When disciplinary proceedings were taken against him, the Supreme Court observed that it was a case of bona fide and erroneous exercise of judicial powers and such matters cannot be treated as misconduct at all.

(v) In Zuniarrao Bhikaji Nagarkar case (1999(7)SCC 409), the delinquent was the Collector of Central Excise. The basis for initiating action against him was the order passed by him in a proceeding which arose under the Central Excise Act. Since it was only an error of judgment, the Supreme Court observed that if every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the delinquent. The Supreme Court was of the view that it was not possible to take departmental proceedings on the sole ground that the delinquent committed an error of law.

(vi) In S.Thirupathy case (2004(3) Law Weekly 230), the charge against the Judicial Officer was regarding alteration of the compensation amount from Rs.67,000/- to Rs.50,000/- and replacement of certain pages in the common order by typing in separate sheets. The other charge relates to acceptance of bribe from an accused in a sessions case and the subsequent conviction on account of refusal of the accused to pay the bribe amount. When it was found that the complaint originated only from the accused and that too, after pronouncing the judgment of conviction against him, the Division Bench observed that more should be the care and caution when a litigant before the Subordinate Judge himself is the complainant and who had an axe to grind, having suffered an adverse judgment.

15. The precedents relied on by the learned Senior Counsel has absolutely no relevance to the facts on hand. Those were all cases where an error of law, committed by the Officer in his function as a judicial officer/quasi judicial authority, were taken as basis for initiation of departmental proceedings. The judgment of the Division Bench in Thirupathy case stands on a totally different footing. In the said case, the accused himself preferred a complaint against the learned District Judge and there were no other materials to connect the District Judge with the alleged misconduct.

16. The facts of the present case are entirely different. The petitioner was well aware of the proceedings in C.C.No.97 of 2000 pending on her file. P.W.1, who is none other than the father of the complainant was examined on 17.5.2001. The complainant was also present on that day for examination. The petitioner applied for one day casual leave on 22.5.2000 and sought permission to avail the holidays on 20.5.2000 and 21.5.2000 and also to leave the headquarters on the evening of 19.5.2000 after completing her regular work. While leaving the Headquarters it was represented that she was going to Madurai. However, she proceeded to Kodaikanal on 20.5.2000. According to P.W.4 she took the petitioner, her husband and her child in the car bearing Registration No.TNT-2757 and they reached Kodaikanal in the evening. She was taken to the residence of P.W.2 on 21.5.2000. The presence of the petitioner along with P.Ws.1,2 and 7 got proved through the photographs marked as Exs.P.2 to P.4. The charge of acceptance of bribe was proved through the evidence of P.Ws.1 and 2. The charge with respect to the procurement of a chair at the cost of P.W.1 was proved through the evidence of P.Ws.5 and 6. Therefore, there are materials undoubtedly pinpointing the involvement of the petitioner in the act of collecting illegal gratification.

17. The petitioner was a member of the lower judiciary. The lower judiciary is the back bone of the judicial system. Any shake in the foundation of the said system would affect the very judicial structure and people would lose faith in the system. The public expects a clean and efficient judiciary committed to the cause of justice. Judicial Officers commands respect from the public. Their public life has a direct bearing on their judicial work. The judiciary is the last resort of the people and in case the judicial officers are also tempted to accept illegal gratification for discharging the judicial functions, the very system would crumble on its own weight.

18. There is no dispute that the High Court should protect the judicial officers from unnecessary attacks on their integrity without any materials or in matters wherein they have acted purely within the parameters of law. There is a corresponding responsibility and duty cast on the High Court to weed out the corrupt elements from the judiciary. The acts of misconduct of a microscope minority in the judicial service would tarnish the image of the entire judiciary. In any case, the High Court, exercising control over the judiciary, is equally bound to preserve the confidence of the people in the justice delivery system.

19. In NAWAL SINGH v. STATE OF U.P. (2003(8) SCC 117), the Supreme Court observed that judiciary stands on a different footing and no other service could be compared with the judicial service. The observation reads thus:
“At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.”

20. The case of a Judicial Officer, like the petitioner, cannot be decided on the principles applicable to a regular departmental proceedings. Even for regular departmental proceedings, as has been observed supra, strict rules of evidence are not applicable. Normally, it is not possible to prove the corrupt charges by way of positive evidence. In matters regarding disciplinary proceedings against the judicial officers, adherence to strict and sophisticated rules of evidence are not necessary. In case the materials produced before the enquiry officer give an indication that there are materials pointing out the improper conduct of the judicial officer, there was no other option than to give a positive finding against the delinquent. Sufficiency of evidence to prove the findings, in matters like this, are beyond scrutiny. If there is some evidence which connects the delinquent with the charges, it is sufficient to take action against the judicial officer. Therefore, in matters relating to charges of corruption, strict view has to be taken. However, there cannot be any doubt that the Judicial Officer, should be protected from the motivated complaints being lodged against them by unscrupulous elements and the persons with vested interest and doubtful integrity.

21. The evidence adduced before the enquiry officer, if viewed in the light of the photographs marked as Exs.P.2 to P.4, would conclusively prove charges 1 to 5 framed against the petitioner. The finding record ed by the Enquiry Officer in respect of those charges would be sufficient to impose the punishment of dismissal from service. All these aspects have been considered in their proper perspective by the Enquiry Officer and also by the Disciplinary Authority.

22. Therefore, we are of the view that no interference is called for in the order impugned in this writ petition.

23. In the result, the writ petition is dismissed. No costs.

(E.D.R.,J) (K.K.S,J)
30.07.2010
Index:Yes/No
Internet:Yes/No

Tr/

To
1. Madras High Court
rep.by its Registrar General
Chennai-60104.

2. The State of Tamil Nadu
rep.by the Secretary to Government
Law Department
Fort St.George
Chennai-60 009.

ELIPE DHARMA RAO,J
AND
K.K.SASIDHARAN, J
Tr
PRE-DELIVERY ORDER IN
W.P.No.15983 OF 2007

30.07.2010