K.Bhuvaneswari v. Kuppusamy

ORDER This criminal original petition has been filed challenging the Order passed by the Court below dismissing the application filed in Crl.MP.No.2065 of 2022, by order dated 4.5.2023, wherein, the Court below did not permit the petitioner to assist prosecution.

2.The husband of the petitioner and others are facing trial before the Court below for offence under Sections 9, 10 and 11 of the Prohibition of Child Marriage Act, Sections 5(c) r/w 6, 5(1) r/w 6, 9(1) r/w 10, 16 r/w 17 of POCSO Act, 2012 and 354(b), 372, 373 r/w 109, 494, 495 and 506(i) of IPC.

3.On an earlier occasion, the husband of the petitioner approached this Court and filed Crl.OP.No.24167 of 2018, on the ground that the matter has been compromised between the parties. This Court on examining the de facto complainant came to a conclusion that the matter has been compromised and that no useful purpose will be served in continuing with the proceedings. Accordingly, the quash petition was allowed by an order dated 22.11.2018 and the proceedings in Spl.SC.No.20 of 2015 was quashed.

4.As against the above order, the petitioner filed SLP before the Apex Court. The Apex Court in SLP (Crl).No.7448 of 2021, set aside the order passed by this Court on 22.11.2018. For proper appreciation, the entire order is extracted under: We are of the view that the impugned judgment dated 3 of 8

22.11.2018 allowing the petition under Section 482 of Code of Criminal Procedure, 1973, cannot be sustained as there are disputed questions of fact which require adjudication and conclusive decision on merits. The impugned judgment, in fact, refers to the statement made by one 'X' before the Judge. The said girl-'X' had also made a statement under Section 164 of the Code of Criminal Procedure, 1973, which is relied upon by the appellant. Police upon investigation has filed a charge-sheet. Learned counsel for the respondents, on the other hand, have drawn our attention to the FIR No. 91 of 2016 recorded at the Police Station Sethiathoppu, making certain allegations against the present appellant and her father. We have referred to the aforesaid submissions only to highlight, the disputed questions of fact involved. In view of the above, we set aside the impugned order dated

22.11.2018 and allow the appeal directing the trial court to proceed in accordance with law, with the hope for expeditious disposal, preferably, within a period of one year from the date the copy of this order is received by the trial court. We clarify that we have not expressed any opinion or findings on the merits of the case and allegation made by both sides

5.Pursuant to the above order, the matter was restored before the Court below. The petitioner has been made as one of the witness (LW-11) on the side of the prosecution. The petitioner filed an application before the Court below for permission to assist the prosecution under Section 301(2) Cr.PC. The Court below on considering the facts and circumstances of the case and the materials available 4 of 8 on record, came to a conclusion that the petitioner cannot be permitted to assist the prosecution since the accused person has made certain allegations against the petitioner and her family members and if the petitioner is allowed to assist the prosecution, it will not be in the interest of the accused persons to effectively defend themselves in this case. Aggrieved by this order, the present criminal original petition has been filed before this Court.

6.Heard Mr.S.Anantha Narayanan, learned Senior Counsel for the petitioner, Mr.C.D.Johnson, learned counsel for R1 and Mr.A.Gopinath, learned Government Advocate (Crl. Side) for R7.

7.The learned Senior Counsel appearing on behalf of the petitioner submitted that assisting the prosecution under Section 301(2) Cr.PC, is an important right that has been given to any aggrieved person. To substantiate this submission, the learned Senior Counsel relied upon the following judgments:

(i) Mina Lalita Baruwa .v. State of Orissa and Others reported in (2013) 16 SCC 173.

(ii) Rekha Murarka v. State of West Bengal and Another reported in (2020) 2 SCC 474.

(iii) Y.Balaji v. Karthik Desari and Another reported in (2023) SCC On-line SC 645.

8.There is no quarrel with regard to the locus standi of an aggrieved person to assist the prosecution. This provision has been interpreted very widely and the Apex Court has gone to the extent of saying that the principles of criminal 5 of 8 jurisprudence requires that in some cases, the aggrieved person must be permitted to to assist the prosecution since there is a tendency for the complainant and the accused to reach a compromise and to defeat the entire criminal case.

9.In the instant case, the husband of the petitioner (A1) has made certain serious allegations against the petitioner and her family members. The complaint given by the husband was also taken on file and an FIR came to be registered in Crime No.91 of 2016. This fact has also been taken note off by the Apex Court. In view of the same, there are allegations and counter allegations between the parties. If the petitioner is permitted to assist the prosecution, the defence of the accused person with regard to the serious allegations made by him against the petitioner and her family members, may be compromised. The accused person has been given a right to effectively defend himself in a criminal case. Hence, if a situation and which will arises affect the right given to the accused person, the same has to be necessarily taken note off by the Court.

10.The Court below has taken into consideration this fact and has rendered the following finding. 29/3/2014 md;W kDjhuUk;. MtUila jfg;gdhUk; kDjhuhpd; rnfhjhpfSk; ghjpf;fg;gl;l rpWkpia flj;jpr; brd;W kWehs; fhiy brd;id irjhg;ngl;il mdij;J kfsph; fhty; epiyaj;jpy; mtiu kpul;o bgha; g[fhh; bfhLf;f itf;fg;gl;ljhf 1?Mk; vjph; kDjhuhpd; vjpUiuapYk; Twg;gl;Ls;sJ/ ,t;tHf;F bjhlh;ghf ,Utpjkhd vjpbujph; bghUz;ikfs; mike;Js;sd vd;gij nkw;fz;lg; bghUz;ikfs; 6 of 8 fhl;Lfpd;wd/ mjpy; xUtpj bghUz;ikahdJ kDjhuUf;F vjpuhd xd;whFk;/ ,j;jifa N:H;epiyapy; ,k;kD mDkjpf;fg;gl;lhy;. kDjhuh; jdf;F vjpuhd bghUz;ikfis kG';fof;fr; bra;tjw;Fk; jpir jpUg;g[gtjw;Fk; Kaw;rpfis nkw;bfhs;s tha;g;g[ cs;sJ/ vdnt. tHf;fpd; jw;nghija N:H;epiyapy; kDjhuUf;F vjpuhft[k; xUtpj bghUz;ik mike;Js;s epiyapy; ,k;kDit mDkjpj;jhy; mJ epahakhd tprhuiz (Fair Trial) vd;w nfhl;ghl;Lf;F vjpuhd xd;whf ,Uf;Fk; vd ,e;ePjpkd;wk; fUJfpwJ/ nkYk;. ,k;kDjhuh; ,t;tHf;fpy; xU rhl;rpahfr; nrh;f;fg;gl;Ls;sjhy; jdJ jug;igr; brhy;tjw;F ,k;kDjhuUf;F tha;g;g[ cs;sJ/ vdnt. nkw;brhd;d fhuz';fshy; ,k;kD mDkjpf;fj;jf;fjy;y vd;Wk; js;Sgo bra;aj;jf;f xd;W vd;Wk; ,e;ePjpkd;wk; Kot[ bra;fpwJ/

11.The above finding that was rendered by the Court below does not suffer from any illegality or infirmity. Ultimately, the petitioner who is one of the witness on the side of the prosecution is going to come to the witness box and tender her evidence. At that point of time, the petitioner can come out with the entire facts to substantiate the allegations. This does not require the petitioner to assist the prosecution.

12.In the instant case, the accused persons are definitely going to confront the petitioner and others during cross examination with respect to the earlier criminal case given against her. Under such circumstances, if the petitioner is permitted to assist the prosecution, it will cause prejudice to the accused person in effectively defending themselves in the criminal case. 7 of 8

13.In the light of the above discussion, this Court does not find any ground to interfere with the order passed by the Court below and this criminal original petition accordingly stands dismissed.

19.01.2024 Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order kp To

¶1The Station Incharge Officer All Women Police Station Neyveli Cuddalore District

¶2Sessions Judge Special Court for exclusive trial of Cases under POCSO Act, Cuddalore.

3.The Public Prosecutor, High Court of Madras, Madras. 8 of 8 N. ANAND VENKATESH,

. J.

kp Crl.O.P No.14241 of 2023

19.01.2024

1 of 8 [IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.01.2024 CORAM THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH Crl.O.P No.14241 of 2023 Mrs.K.Bhuvaneswari .. Petitioner vs. 1.Mr.Kuppusamy 2.Mr.Chinnadurai 3.Mrs.Mallika 4.Mr.Arumugam 5.Velmurugan (died) 6.M.Gunasekaran 7.The Station Incharge Officer All Women Police Station Neyveli Cuddalore District. .. Respondents (Crime No.7 of 2014) PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to set aside the order dated 4.5.2023 in Crl.MP.No.2065 of 2022 in Spl.SC.No.115 of 2022 on the file of the Sessions Judge, Special Court for exclusive trial of cases under POCSO Act at Cuddalore. For Petitioner : Mr.S.Anantha Narayanan Senior Counsel for Mr.Udhayakumar For Respondents : Mr.C.D.Johnson for R1 Mr.A.Gopinath Government Advocate (Crl. Side) for R7 2 of 8