Tag Archives: madras high court

Courts can’t impose onerous & unreasonable conditions (huge cash deposit) before bail !! Madras HC

in this case the lower courts ordered deposit of Rs 15000 by village labour (daily wage earners) and the HON MADRAS HC after considering various HC and SC cases decided that such onerous conditions cannot be imposed. the cases quoted by the HC are very important and strike at the very root of lower courts imposing such onerous conditions

This case should help husbands who are seeking AB in 498a, 406 cases filed by wife

The cases referred to should also make good reading

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Before the Madurai Bench of Madras High Court

Date: 05-02-2015

Coram
The Hon?ble Mr.Justice S.Vaidyanathan

Crl.O.P.(MD)Nos.19196 of 2014
& Crl.O.P.(MD)Nos.19197 of 2014
&
M.P(MD)No.1 of 2014 in
Crl.OP.(MD)No.19196 of 2014

1.Amaldoss
2.Kannan
3.Meganathan
4.Saminathan
5.Santhana Raju            .. Petitioners in Crl.O.P.(MD)No.
19196 of 2014
1.Mathialagan
2.Tamilalagan
3.Karunanithi
4.Tamilarasan
5.Kalaiyarasan            .. Petitioners in Crl.O.P.(MD)No.
19197 of 2014

Versus

State,
Rep. by the Inspector of Police,
Patteeswaram Police Station,
Thanjavur District.                        .. Respondent

in both petitions Prayer These Criminal Original Petitions are filed under Section 482 of Cr.P.C., praying to set aside the second condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014.

!For Petitioners : Mr.M.Karunanithi ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) for R1 Mr.B.Jameel Arasu for Intervenor :COMMON ORDER By order, dated 14.10.2014 in Crl.M.P.Nos.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners herein, the learned Principal District and Sessions Judge, Thanjavur, apart from other conditions, imposed a condition, directing the petitioners to deposit a sum of Rs.15,000/- each before the learned Judicial Magistrate, Kumbakonam.

  1. Aggrieved by the said condition, the petitioners have come forward with the present petitions, seeking to set aside the same.
  2. The learned counsel for the appearing for petitioner would submit that the petitioners are agricultural coolies and they find difficulty even to eke out their day-to-day livelihood and hence, they are unable to comply with the condition imposed by the Court below in respect of making deposit of Rs.15,000/- before the learned Magistrate. He would contend that the learned Judge is not having jurisdiction to impose such condition and in fact there is no statutory provision nor any judicial pronouncement empowering the learned Judge to impose condition for depositing of money upon a person at the time of granting bail to him. Therefore, he contended that condition imposed by the Court below is onerous and it tantamounts to abuse of the process of the Court. In support of his contention, the learned counsel relied upon decisions of this Court, in ?Alluvdin versus Inspector of Police, Vandhavasi Police Station?(2001 Crl.L.J.2672); ?N.Sasikala versus Enforcement Officer, Enforcement Directorate, Madras?(1997 Crl.L.J.2120) and also of the Hon?ble Supreme Court reported in ?Ramathal & others versus Inspector of Police and another? (2009 Crl.L.J.2271).

  3. On the other, the learned Government Advocate (Crl.side) would contend that in cases where there would be no possibility of granting anticipatory bail, if the Court comes to the conclusion on facts and satisfied that the person is entitled to anticipatory bail on certain terms and conditions, the same should be not ordinarily interfered with by this Court.

  4. Chapter XXXIII of the Code of Criminal Procedure deals with the provisions as to ?Bail and Bonds?.

  5. Section 437 of Cr.P.C. empowers the authority of law to impose any condition while granting bail to any person accused of, which reads as under: “437. When bail may be taken in case of non-bailable offence. 1[(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but- (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the court.] (2) If it appears to such officer or court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, 2[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or court on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the court may impose any condition which the court considers necessary- (a) In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) Otherwise in the interests of justice. (4) An officer or a court releasing any person on bail under sub-section (1), or sub- section (2), shall record in writing his or its 3[reasons or special reasons] for so doing. (5) Any court which has released a person on bail under sub-section (1), or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to Custody. (6) If, any case triable by a Magistrate, the trial of a person accused of any non bailable offence is not Concluded within a period of sixty days from the first date fixed for – taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before Judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.”

  6. Sub-Section 2 of Section 438 envisages conditions which can be imposed while granting anticipatory bail, which as under: “438 (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including – (i) A condition that the person shall make himself available for interrogation by a police officer and when required; (ii) A condition that the person shall not, directly or indirectly,- make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer, (iii) A condition that the person shall not leave India without the previous permission of the court; (iv) Such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section.”

  7. Section 440, 441 and 445 of Cr.P.C. are also relevant and they are extracted as under: ?440. Amount of bond and reduction thereof. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced. ?441. Bond of accused and sureties. (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. ?445. Deposit instead of recognizance. When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond. ?

  8. A careful consideration of the provisions of Sections 437(3) and 438(2) Criminal Procedure Code shows that conditions which can be imposed are primarily with a view to ensure availability of the accused during investigation, enquiry or trial and his non-interference with the course of justice. Other conditions which Court may think fit can also be imposed but idea should be to ensure his presence as and when required and his non- interference with the investigation, enquiry or trial.

  9. Section 440 Cr.P.C. denotes that the amount of every bond executed shall be fixed with due regard to the circumstances of the case and shall not be excessive. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.

  10. Keeping in view of the above, the issue for consideration is whether the Court below can insist for deposit of money as a condition for grant of bail to the petitioners?

  11. In fact, this issue is no longer res integra as in catena of decisions, various High Courts as well as the Hon?ble Supreme Court have consistently held that imposing condition of depositing money is excessively onerous and unreasonable and such condition may even amount to denial of bail itself.

  12. In ?Sreenivasulu Reddy versus State of Tamil Nadu? reported in (2002) 10 SCC 653, wherein, this Court granted anticipatory bail to the accused on condition to deposit total Rs.50 crores apart from other conditions, which was also complied with by the accused, however aggrieved by imposition of such condition, the accused preferred appeal before the Hon?ble Apex Court. While dealing with the same, the Hon?ble Supreme Court had emphasized that while exercising jurisdiction under Section 438(2) of the Cr.PC, the Court ought only to impose such conditions/terms for enlarging an accused on bail as would ensure that the accused does not abscond. In para 6, it has been held as under: ?6. Having considered the rival submissions and the provisions of Section 438 Cr. PC, we are of the considered opinion that the Court while exercising jurisdiction under Section 438 Cr. PC, must bear in mind and be satisfied that the accused will not abscond or otherwise misuse liberty and this can be ascertained from several factors like conduct of the accused in the past, his assets in the country and so on. But, while granting such anticipatory bail, though the Court may impose such conditions as it thinks fit, but the object of putting conditions should be to avoid the possibility of the person hampering investigation. The discretion of the Court while putting conditions should be an exercise of judicial discretion. ?.

  13. In ?Sandeep Jain v. State of Delhi? reported in (2000) 2 SCC 66, wherein, a direction of the Metropolitan Magistrate, to deposit Rs. 2 lacs apart from furnishing of a bond of Rs. 50,000 with two solvent sureties as a condition precedent for bail, was held to be unreasonable. In ?Sheikh Ayub v. State of M.P.? (2004) 13 SCC 457, wherein, the Supreme Court deleted the direction to deposit a sum of Rs. 2,50,000/-, which was the amount allegedly misappropriated by the accused.

  14. In ?Shyam Singh v. State? reported in (2006) 9 SCC 169, wherein, the Hon?ble Supreme Court, has held in para 4 as under : ?4. We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.?

  15. In ?Keshab Narayan versus State of Bihar? reported in AIR 1985 SC 1666, the Hon?ble Supreme Court held that the condition to furnish cash security with sureties for the likesum appears to be excessively onerous and such conditions may virtually amount to denial of bail itself.

  16. In ?Hussainara Khatoon (I) v. Home Secy., State of Bihar, reported in (1980) 2 SCC 81, the Hon?ble Supreme Court has held as under in para 3: ?3. Now, one reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pre-trial detention is our highly unsatisfactory bail system. It suffers from a property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the courts is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor. The Legal Aid Committee appointed by the Government of Gujarat under the chairmanship of one of us, Mr Justice Bhagwati, emphasised this glaring inequality in the following words: ?The bail system, as we see it administered in the criminal courts today, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail is fixed by the Magistrate is not high, for a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.?

  17. In ?Mahesh Chandra versus State of U.P.? reported in (2006) 6 SCC 196, wherein, while remitting the matter for fresh consideration, the Hon?ble Supreme Court set aside the order of the High Court of U.P., in and by which, as a condition for grant of anticipatory bail, the High Court has recorded the undertaking of the petitioners to pay to the victim daughter-in-law a sum of Rs. 2000 per month and failure to do so would result in vacation of the order granting bail. The Hon?ble Supreme Court observed that the parties cannot be made liable to deposit Rs.2000 per month for the maintenance for the victim and while deciding a bail application, it is not the jurisdiction of the High Court to decide civil disputes as between the parties.

  18. Therefore, the practice of imposing condition for depositing of money for granting the bail has been deprecated by the High Courts and the Hon?ble Supreme Court. Of course, while granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contemplates cash deposit as a condition precedent for grant of bail, but may permit the person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily. Once the court comes to the conclusion on the facts and circumstances of the case that a person is entitled to the benefit of bail, then no condition other than those enumerated in Section 437(3) or 438(2) can be imposed. Imposition of such unreasonable condition is not only beyond the purview of the provisions of Code of Criminal Procedure but also beyond the powers of the court. Discretion does not mean that it has no arena or boundary. No Court having howsoever absolute power can traverse beyond the arena carved out for it. Even absolute discretion does not admit element of arbitrariness or whimsicality or capriciousness.

  19. Having regard to the above, this Court is of the view that the condition imposed by the learned Principal Sessions Judge, Thanjavur in his order, dated 14.10.2014 in Crl.M.P.No.3779 and 3827 of 2014, while granting anticipatory bail to the petitioners, to deposit a sum of Rs.15,000/-, is onerous and unreasonable and hence, it is set aside.

Accordingly, these Criminal Original Petitions are allowed. Consequently, the connected Miscellaneous petition is closed.

Suk                            05-02-2015
Index: Yes/No
Internet:Yes/No
S.VAIDYANATHAN, J.

Suk

don’t file Habeas Corpus for child custody !! Madras HC

“…. Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance…..”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 25/01/2006

Coram

The Hon’ble Mr. Justice P.SATHASIVAM
and
The Hon’ble Mr. Justice N.PAUL VASANTHAKUMAR

Habeas Corpus Petition No.40 of 2006

R.Suresh Kumar             … Petitioner

-Vs-

  1. K.A.Kalavathi
  2. K.M.Arumugham

  3. The Inspector of Police,
    Kolathur Police Station,
    Kolathur, Chennai-99.            … Respondent

Petition under Article 226 of the Constitution of India for the issuance of writ of habeas corpus to direct the first respondent to produce bodily the petitioner’s male child by name Siddarth, aged about 4 = years, in the court and hand over the said chi ld to the custody of the petitioner.

!For petitioner     : O.R.Abul Kalam.

For Respondents    : Mr.M.K.Subramanian, Government Advocate.
O R D E R

(Order of the Court was made by P.SATHASIVAM, J.) The petitioner by name R.Suresh Kumar has filed this petition seeking for a direction to the first respondent K.A.Kalavathi, who is none else than his wife, to produce his male child by name Siddarth, aged about 4 = years, in the Court and for furth irection to hand over the child to his custody.

  1. In the affidavit filed in support of the above petition, the petitioner has stated that the first respondent is his wife and the second respondent is his father-in-law. The petitioner married the first respondent five years ago and he was blesse rough the first respondent with one male child by name Siddarth, now aged 4 = years, studying in Kinder Garden class, Don Bosco Matriculation School, Madras. They also have a female child by name Mathumitha, aged about 2 = years. According to the pet itioner, on 08.11.2005, the first respondent left the house of the petitioner along with the male child without any intimation. There is no dispute that the petitioner has not made any complaint against anyone including the third respondent.
  • Learned counsel for the petitioner, by drawing our attention to Section-6 of the Hindu Minority and Guardianship Act, 1956, vehemently contended that inasmuch the petitioner being father/natural guardian of the minor, he is entitled to the custod the child and that this Court can issue suitable direction to the first respondent for handing over the minor in favour of the petitioner. In support of the above contention, he relied on a decision of this Court reported in AIR 1984 Madras 186 (Suresh Babu v. Madhu) and also a decision of the Kerala High Court in Vasudevan vs. Viswalakshmi (AIR 1959 Kerala 403).

  • Insofar as the custody/entitlement/right over the minor child is concerned, we are of the view that the said question cannot be gone into by this Court, hearing Habeas Corpus Petition. Admittedly, the petitioner has not approached the competent rt/Forum to vindicate his grievance. Inasmuch as even according to the petitioner, the child, aged about 4 = years, is with the first respondent, who is none else than the mother of the child, we are of the view that the claim of the petitioner cannot be gone into by this court in this petition. It is made clear that the petitioner is free to approach the appropriate forum to vindicate his grievance.

  • With the above observation, the Habeas Corpus Petition is dismissed.

  • JI.

    To The Inspector of Police, Kolathur Police Station, Kolathur, Chennai-99.

    Quash Sec 125 CrPC case when a civil (divorce) case is already pending ! Madras HC (old case)

    A classic case where the Madras HC quashes a Sec 125 case filed by the wife three years after desertion and AFTER  a civil (divorce) case is also pending between the couple

    the court clearly states that Sec 125 CrPc is for quick and expeditious relief, when there is NO other relief in sight. So it is NOT proper for the wife to run to a magistrate court and seek relief under sec 125 when a civil case (for divorce and other reliefs) is already proceeding / pending !

    We are NOT sure IF this will help all situations, but we feel this should help some husbands in a very similar situation (at least the ratio used in the case is very strong)


    Madras High Court

    G. Ramanathan vs Revathy on 16 March, 1989

    Bench: D Annoussamy

    ORDER

    1. This is a petition by the husband under S. 482 of the Cr.P.C. to quash the proceedings for maintenance instituted by the wife respondent under section 125 Cr.P.C.
    2. The case put forth by the husband is that the petition was filed before the Magistrate’s Court three years after the alleged desertion and therefore there was no emergency as alleged in order to invoke the quick remedy contemplated under section 125 Cr.P.C. He further stated that a divorce proceedings was already pending before the competent civil Court viz., S.P. No. 97 of 1984 and that it was open to the respondent to claim maintenance before that Court under section 24 of the Hindu Marriage Act.
    3. The learned counsel appearing for the wife contended before me that the proceedings under section 125 Cr.P.C. and the proceedings under the Hindu Marriage Act are two independent proceedings and therefore even during the pendency of a proceeding under the Hindu Marriage Act it was open to the concerned person to seize the Magistrate. The scheme contemplated under Chap. IX of the Cr.P.C. is one meant to meet emergent situations which the civil Courts cannot decide immediately, and which would cause disorder in the society. That is why it is made part of the Code of Criminal Procedure. Secondly such a provision was introduced for the first time (a) when there was not a complete network of civil Courts all over the country and (b) when the law regarding maintenance was still at a nebulous stage. Now there is a full-fledged law of maintenance, and also a full-fledged law regarding marriage and divorce. Section 24 of the Hindu Marriage Act contemplates maintenance pendente lite and S. 25 of the Act contemplates the grant of maintenance at the time of the decree or even at any time subsequent thereto on application by the concerned person.
    4. When a competent Civil Court has already (sic) of the matter and when it is possible without incurring any expenditure or any other inconvenience to approach, by way of a simple petition, the Civil Court so as to obtain maintenance, it is not proper on the part of the wife to go before the Magistrate for an order. The proper course is to approach the Civil Court which is already seized. Further under S. 127 of the Cr.P.C. if an order regarding maintenance is passed by the competent Civil Court, the Magistrate should have to set aside its own order which is more in the nature of a temporary measure made after a summary hearing to meet an emergent situation. Therefore the fact of seizing the Magistrate when the competent Civil Court has been already seized would cause only judicial waste of time since the order obtained is ultimately liable to be cancelled. I therefore come to the conclusion that the institution of a proceeding under S. 125, Cr.P.C. when a civil proceeding is already pending between the parties under the Hindu Marriage Act is against the scheme of law contemplated under the Hindu Marriage Act, 1955 and Chap. IX of the Cr.P.C.
    5. In the result, the Cr. Misc. Petition is allowed and the proceedings in M.C. No. 5 of 1985 on the file of the Sub-Divisional Judicial Magistrate, Sankaridurg are quashed
    6. Petition allowed.

    Husband got exparte divorce & happily re-married! 1st wife running around transferring first divorce case!

    Excerpts / Key details
    * Learned counsel for the petitioner/wife submitted that the respondent filed H.M.O.P.No.33 of 2012 before the Principal Subordinate Court, Chengalpattu where she entered appearance and subsequently she was set exparte and an exparte order has been passed.
    * Husband submitted that since petitioner/wife not filed application to set aside exparte order within time stipulated by law, he got married on 02.02.2015 and living with his wife !!!.
    * After two years, the petitioner filed an application in I.A.No.78 of 2015 to set aside the exparte order passed on 29.04.2013 and the same was allowed on 15.07.2015 even without notice to the respondent/husband.

    Now the Hon. Madras HC transfers the case to wife’s place of living, i.e. Salem … so the Hon court is pleased to order “… I am of the view that it is fit case for withdrawing the case in H.M.O.P.No.33 of 2012 from the file of the Principal Subordinate Court, Chengalpattu and transfer the same to the file of the Family Court, Salem….”


    IN THE HIGH COURT OF JUDICATURE AT MADRAS

    DATED :  27.01.2016

    CORAM : THE HONOURABLE MS.JUSTICE R.MALA

    Tr.C.M.P.No.773 of 2015
    and
    M.P.No.1 of 2015

    I.Vimala Devi    .. Petitioner

    Vs.

    M.Ramesh    .. Respondent

    Prayer:- Petition is filed under Section 24 of C.P.C., to withdraw the petition in H.M.O.P.No.33 of 2012 from the file of the Principal Subordinate Court, Chengalpattu and to transfer the same to the Family Court, Salem.

    For Petitioner     : Mr.S.Ramasundaram

    For Respondent  : Mr.N.Manokaran

    O R D E R

    The petitioner/wife who is the respondent in H.M.O.P.No.33 of 2012 on the file of the Principal Subordinate Court, Chengalpattu has come forward with this petition to transfer the same to the Family Court, Salem.

    2.Learned counsel for the petitioner/wife submitted that the respondent filed H.M.O.P.No.33 of 2012 before the Principal Subordinate Court, Chengalpattu where she entered appearance and subsequently she was set exparte and an exparte order has been passed. He would also submit that the petitioner/wife filed an application in I.A.No.78 of 2015 to set aside the exparte order and that has been allowed. He further submitted that the petitioner/wife is residing at Salem along with her five years old daughter and so, it is difficult for her to attend each and every hearing before the Principal Subordinate Court, Chengalpattu. Hence, she prayed for transfer the case in H.M.O.P.No.33 of 2012 from the file of the Principal Subordinate Court, Chengalpattu to the file of the Family Court, Salem.

    3.Resisting the same, the learned counsel for the respondent/husband submitted that the respondent filed a petition for divorce on the ground of cruelty and desertion. The petitioner/wife entered appearance and subsequently she was set exparte and an exparte order has been passed on 29.04.2013. He would also submitted that since the petitioner/wife has not filed any application to set aside the exparte order within the time stipulated by law, he got married on 02.02.2015 and living with his wife. After two years, the petitioner filed an application in I.A.No.78 of 2015 to set aside the exparte order passed on 29.04.2013 and the same was allowed on 15.07.2015 even without notice to the respondent/husband. He would further submitted that this petition has been filed by the petitioner/wife only with a view to drag on the proceedings and she has not mentioned about the same in the present petition. He further submitted that the petitioner/wife has also given a complaint before the All Women Police Station on 28.04.2015 and even before the Police Station, she has not disclosed about the application in I.A.No.78 of 2015. Hence, he prayed for dismissal of the transfer petition.

    4.Considered the rival submissions made on both sides and perused the typed set of papers.

    5.The respondent/husband filed a petition in H.M.O.P.No.33 of 2012 before the Principal Subordinate Court, Chengalpattu for divorce on the ground of cruelty and desertion. Admittedly an exparte order has been passed on 29.04.2013. It is also an admitted fact that the petitioner/wife filed an application in I.A.No.78 of 2015 to set aside the exparte order which was allowed on 15.07.2015. According to the learned counsel for the respondent/husband, no notice has been served in I.A.No.78 of 2015 and notice has been sent to the wrong address where previously both of them lived together and now only he came to know about the allowing of I.A.No.78 of 2015. It is further submitted that since the petitioner/wife has not filed any application to set aside the exparte order within the time stipulated by the Court, he got second marriage and his marriage is valid. Admittedly, H.M.O.P.No.33 of 2012 is pending before the Principal Subordinate Court, Chengalpattu and whether the marriage of the respondent with his second wife is valid or not cannot be gone into before this Court.

    6.The only point to be decided is that whether it is fit case for ordering transfer? Admittedly, the petitioner/wife is residing within the jurisdiction of the Family Court, Salem with her five years old daughter and furthermore, as per Section 19(iii-a) wherein it was stated that privilege has to be given to the wife to file a petition in the place where she resides. Since the petitioner/wife is residing within the jurisdiction of the Family Court, I am of the view that it is fit case for withdrawing the case in H.M.O.P.No.33 of 2012 from the file of the Principal Subordinate Court, Chengalpattu and transfer the same to the file of the Family Court, Salem. The Presiding Officer, Principal Subordinate Court, Chengalpattu is directed to transmit all the records pertaining to H.M.O.P.No.33 of 2012 to the file of the Family Court, Salem within fifteen days from the date of receipt of a copy of this order.

    7.The Transfer Miscellaneous Petition is ordered accordingly. No costs. Consequently, consequently miscellaneous petition is closed.

    27.01.2016

    Internet:Yes/No

    Index:Yes/No

    cse

    To

    1.The Principal Subordinate Court, Chengalpattu.

    2.The Family Court, Salem.

    R.MALA,J.

    cse

    Tr.C.M.P.No.773 of 2015 and M.P.No.1 of 2015 27.01.2016

    US based NRI pays 50 Lakhs to quash 498a 506 case ! How many crores per day? how many per year?

    As the multi billion dollar matrimonial and dowry case industry moves on, we see case after case, quash after quash for huge settlements. Here is a case where quash of 498a and mutual divorce is accepted for 50 lakhs !

    Worse still, the money paid by the husband is called COMPENSATION as if he is the ONLY wrong doer and he has to compensate the woman !! In spite of this Sad state of marriages and matrimonial legislation in India, men are queuing up to get married as if there is NO tomorrow !!


    BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

    DATED: 27.01.2016

    CORAM
    THE HON’BLE MR.JUSTICE S.VAIDYANATHAN

    Crl.O.P.(MD) Nos.11911 of 2015 and 23086 of 2015

    1. A.Al.Subramanian
    2. S.Palaniappan … Petitioners/A2 & A3 in Crl.O.P.(MD)11911/2015

    1. S.Muthukumar … Petitioner/A1 in Crl.O.P.(MD)23086/2015

    -vs-

    1. State Represented by
    The Inspector of Police,
    All Women Police Station (South) Madurai
    (Crime No.18/2015) … 1st Respondent/ Complainant in both petitions

    2. M.Vallikannu … 2nd Respondent / Defacto Complainant in both petitions

    Common Prayer: Petitions filed under Section 482 of Code of Criminal Procedure to call for records pertaining to the FIR in Crime No.18 of 2015 dated 11.06.2015 on the file of the 1st respondent police for offences under Sections 498(A) and 506(i) IPC and quash the same as illegal insofar as the petitioners are concerned.

    For Petitioners : Mr.T.Lajapathi Roy

    For R1 : Mrs.S.Prabha Govt. Advocate (Crl.Side)

    :C O M M O N O R D E R

     

    1. These petitions have been filed seeking to quash the case registered in Crime No.18 of 2014 on the file of the 1st respondent police, pursuant to the amicable settlement effected between the parties.
    2. It is seen that the case in Crime No.18 of 2014 for the alleged offences under Sections 498(A) and 506(i) IPC, has been registered against the petitioners / Accused. On 02.07.2015, this Court referred the matter in Crl.O.P.(MD) No.11911 of 2015, filed by the in-laws of the defacto complainant to the Mediation and Conciliation Centre attached to this Court. Since the husband of the defacto complainant has filed a separate petition in Crl.O.P.(MD) No.23086 of 2015 seeking to quash the FIR, the same has been clubbed together with Crl.O.P.(MD) No.11911 of 2015 for hearing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
    3. When these matters are taken up for hearing, the petitioners/A2 & A3 in Crl.O.P.(MD) 11911 of 2015 and the second respondent, appeared in persons and their identifications were also verified by this Court, in addition to the confirmation of the identity of the parties by the Government Advocate (Crl.Side) through the respondent Police. It was represented by the 1st petitioner/A2 in Crl.O.P.(MD) No.11911 of 2015 that since his son / the petitioner (A1) in Crl.O.P.(MD) No.23086 of 2015 is in United States of America, he has executed a General Power of Attorney in his favour to represent the case before this Court and a xerox copy of the said Power of Attorney dated 27.10.2015 has been produced before this Court. As per the recent judgment of the Hon’ble Division Bench of this Court, a Power of Attorney is entitled to appear on behalf of the Principal, present documents and produce materials before the Court.
    4. It is seen from the Mediation Report dated 19.11.2015 that the matter has been amicably settled between the parties in the Mediation Centre and the terms of settlement arrived at between them before the Mediation and Conciliation Centre, attached to this Court read as under:
      • “…Both sides, out of their own volition and without any pressure or coercion from any side have agreed as follows:
      • 1.Both parties have agreed to settle the dispute amicably. The 1st petitioner (2nd accused), Son of Thiru.S.Muthukumar (1st accused) and defacto- complainant agrees to live with their life separately.
      • 2.The defacto-complainant accepts to withdraw the complaint given against the petitioners before the All Women Police Station (South), Madurai in Cr.No.18 of 2015.
      • 3.The 1st petitioner (2nd accused) Son of Thiru.S.Muthukumar (1st accused) accepts to pay the compensation amount of Rs.50,00,000/- (Rupees fifty lakhs only) to the defacto-complainant. Out of Rs.50,00,000/-, the petitioner has initially paid today (19.11.2015), Rs.5,00,000/- (Rupees five lakhs only) to the defacto complainant before the Mediator. At the time of filing the mutual divorce before the Family Court, Madurai, the petitioner agreed that he would pay an amount of Rs.5,00,000/- (Rupees five lakhs only) and the rest of the amount of Rs.40,00,000/- (Rupees forty lakhs only) would be paid after six months i.e. both parties appearing for giving evidence before the Family Court, Madurai…”
    5. The defacto complainant / 2nd respondent has stated that she has received the amount of Rs.5,00,000/- as per the settlement.
    6. In addition, the parties have also filed a common joint memo of compromise dated 20.11.2015 duly stating that since the parties have arrived at an amicable settlement by way of compromise among themselves, the second respondent has agreed to withdraw the above case in Crime No.18 of 2015 pending on the file of the first respondent.
    7. Earlier, this Court also entertained such request in similarly placed matters in Crl.O.P.(MD) Nos.406, 530 and 864 of 2016 (Prabu and others vs. State Rep. By The Inspector of Police and others), decided on 27.01.2016, by considering various decisions rendered by the Hon’ble Supreme Court in this regard in several cases, namely, Gian Singh vs. State of Punjab and another [(2012) 10 SCC 303], B.S.Joshi vs. State of Haryana [(2003) 4 SCC 675], Nikhil Merchant vs. CBI [(2008) 9 SCC 677], Narinder Singh and others vs. State of Punjab and another [(2014) 6 SCC 466] and State of Madhya Pradesh vs. Manish and others [(2015) 8 SCC 307] and observed as under: “….11. If the offences against women and children and the IPC offences falling under the categories, like, murder, attempt to murder, offence against unsound mind, rape, bribe, fabrication of documents, false evidence, robbery, dacoity, abduction, kidnapping, minor girl rape, idol theft, preventing a public servant from discharging of his/her duty, outrage of woman modesty, counterfeiting currency notes or bank notes, etc., are allowed to be compounded, it will surely have serious repercussion on the society, as the above mentioned list is only illustrative and not exhaustive…” Similarly, any compromise between the victim and the offender in relation to the offences clubbed with Special Enactment, like Arms Act, the Prevention of Corruption Act, TNPPDL Act, TNPID Act or the offences committed by Public Servants while working in that capacity, etc., cannot provide for any basis for quashing criminal proceedings involving such offences. As held by the Apex Court, insofar the offences arising out of matrimonial dispute, relating to dowry or the family disputes where the wrong is basically private or personal in nature, are concerned, the possibility of conviction is remote and bleak, in case the parties resolve their entire disputes amicably among themselves. This Court feels that there cannot be any compromise in respect of the heinous and serious offences of mental depravity and in that case, the Court should be very slow in accepting the compromise. If the compromise is entertained mechanically by the Court, the accused will have the upper hand. The jurisdiction of this Court may not be allowed to be exploited by the accused, who can well afford to wait for a logical conclusion. The antecedents of the accused have also to be taken into consideration before accepting the memo of compromise and the accused, by means of compromise, cannot try to escape from the clutches of law
    8. Taking note of the judgments referred to supra, considering the nature of allegations and in view of the mediation report dated 19.11.2015 and the common joint memo of compromise dated 20.11.2015, this Court is of the opinion that no useful purpose would be served in keeping the matters pending. Therefore, the entire proceedings in Crime No.18 of 2015 on the file of the first respondent in respect of the petitioners/accused alone, are hereby quashed. Accordingly, these Criminal Original Petitions are allowed on the basis of the compromise entered into between the parties. The Mediation Report dated 19.11.2015 and the common joint compromise memo dated 20.11.2015 shall form part of this common order. However, it is made clear that the petitioner in Crl.O.P.(MD)No.23086 of 2015 shall be present before the concerned Court as and when his presence is absolutely necessary. Consequently, connected miscellaneous petition is closed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

     

    To

    1. The Inspector of Police, All Women Police Station (South) Madurai
    2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .

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