The accused are hereby directed to cooperate for the trial without being absent and in case of any absence, the trial Court is at liberty to proceed the trial in accordance with Section 299 Cr.P.C, ie., record the evidence in the absence of the accused and conclude the trial within the above time frame. Consequently, connected Crl.M.P(MD)No.967 of 2021 is closed. 01.06.2023 NCC : Yes/No Internet:Yes/No Index : Yes/No PJL To 1.The District and Sessions Judge, Sivagangai District. 2.The District Munsif cum Judicial Magistrate Court, Ilayangudi, Sivagangai District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. K.K.RAMAKRISHNAN,J. PJL Order made in Crl.O.P(MD)Nos.15955 of 2017, 15498 of 2020 and 1623 of 2021 and Crl.M.P(MD)Nos.10584 & 10585 of 2017, 7557 of 2020 and 967 of 2021 01.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 30.03.2023
Pronounced on 01.06.2023
CORAM:
THE HON’BLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl.O.P(MD)Nos.15955 of 2017, 15498 of 2020 and 1623 of 2021
and
Crl.M.P(MD)Nos.10584 & 10585 of 2017, 7557 of 2020 and
967 of 2021

Crl.O.P(MD)No.15955 of 2017:
M.Parimala .. Petitioner/Accused No.3

Vs.

1.State rep. by,
The Deputy Superintendent of Police,
Sivagangai.

2.State rep. by
The Inspector of Police,
Ilayangudi,
Sivagangai.
(Crime No.51/2016)

3.S.Thangavel .. Respondents/Complainant

PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records in P.R.C.No.3 of 2017 on the file of the District Munsif cum Judicial Magistrate Court, Ilayangudi, Sivagangai District and quash the same as against the petitioner.
For Petitioner : Mr.G.Karuppasamy Pandian
for Mr.J.Senthil Kumaraiah

For Respondents : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor
for R1 & R2

: Mr.R.Balamuruganantham
for R3

Crl.O.P(MD)No.15498 of 2020:
Malaisamy .. Petitioner/Accused No.2

Vs.

1.State rep. by,
The Deputy Superintendent of Police,
Sivagangai.

2.The State rep. by,
The Inspector of Police,
Ilayangudi,
Sivagangai District.
(Crime No.51/2016)

3. S.Thangavel .. Respondents/Complainant

PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to the proceedings in P.R.C.No.3 of 2017 pending on the file of the District Munsif cum Judicial Magistrate Court, Ilayangudi, Sivagangai District and quash the same as far as the petitioner is concerned.
For Petitioner : Mr.V.Kathirvelu,
Senior Counsel
for Mr.J.Senthil Kumaraiah

For Respondents : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor
for R1 & R2

: Mr.R.Balamuruganantham
for R3
Crl.O.P(MD)No.1623 of 2018:
S.Thangavelu .. Petitioner

Vs.

The Inspector of Police,
Ilayangudi Police Station,
Sivagangai.
(Crime No.51/2016) .. Respondent / Complainant

PRAYER: Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to direct the District Munsif cum Judicial Magistrate Court, Ilayangudi, Sivagangai District to commit the case to the Sessions Court for trial in P.R.C.No.3 of 2017 on the file of the District Munsif cum Judicial Magistrate Court, Ilayangudi, Sivagangai District within a stipulated period.
For Petitioner : Mr.R.Balamuruganantham

For Respondent : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor

COMMON ORDER

Since these petitions emanate from the common FIR and Common P.R.C.No.3 of 2017 on the file of the District Munsif-cum-Judicial Magistrate Court, Ilayangudi, Sivagangai District, all are taken up together for hearing and disposed of by way of this common order.

2. The petitioners are arrayed as A2 & A3 in P.R.C.No.3 of 2017 on the file of District Munsif-cum-Judicial Magistrate Court, Ilayangudi, Sivagangai District. They are said to have committed offences under Section 304B IPC and they filed the quash petitions in Crl.O.P(MD)Nos.15955 of 2017 and 15498 of 2020, to quash the proceedings in P.R.C.No.3 of 2017.

3. A1 is the petitioners’ son. On 01.06.2014, he married the deceased(Anuvidhya), who is the daughter of Thangavelu. At the time of marriage, there was a demand of dowry of 100 sovereigns of gold jewels apart from the Sridhana articles. At the time of marriage, only 70 sovereigns of gold jewels were given. After marriage, the petitioners, A1 and the deceased were jointly living in Chennai and there was a continuous harassment demanding the remaining dowry. In the meantime, the deceased gave birth to a male child on 26.02.2015. For the child also, they demanded some gold jewels. Failure on the part of the defacto complainant to fulfill the demand of dowry, the deceased was humiliated and harassed in many ways and the same was informed by the deceased to the defacto complainant.
3.1. That being the situation, on 07.03.2016, the petitioners, A1 and the deceased along with the child came to their native place to attend the temple festival and stayed in the petitioners’ house situated in Ilayankudi village. On 09.03.2016, the petitioners and A1 demanded the remaining dowry and also scolded and humiliated the deceased and they found fault in every activity of the deceased. The same was informed by the deceased on the same day to the defacto complainant and hence, the defacto complainant met her in her matrimonial home at 12.00 p.m., and she also disclosed the above demand of dowry and the continuous harassment faced by her. Immediately, the defacto complainant asked her to wait for some time and the said problem would subside in the course of time and then he returned to his house. At 02.30 p.m., through phone, A1 informed him that the deceased had locked the door inside the house and hence, he had to come to their house immediately. After the defacto complainant rushed to their house, A1 opened the door and found that the deceased was hanging with injuries. She was taken to the hospital and the doctor confirmed her death and thereafter, FIR was registered under Section 174 Cr.P.C in Crime No.51 of 2016 on 09.06.2016 at 05.00 p.m., and subsequently Section was altered to 304B IPC. The RDO enquiry was conducted and the RDO gave opinion that there was a dowry demand which resulted in the above incident. The Investigation Officer, after conducting the investigation, filed final report under Section 304B IPC before the Court and the same was taken on file in P.R.C.No.3 of 2017.

4. Mr.V.Kathirvelu, learned Senior Counsel for Mr.J.Senthil Kumaraiah, appearing for A2 made the following submission:
4.1. The investigation agency to suit the offence under Section 304B IPC examined the witnesses belatedly with improved version of dowry demand and the said statement reached the Court belatedly on 04.08.2016 and hence, the credibility of the witnesses is not beyond suspicion. Even in the so-called belatedly recorded statement, there was no whisper about the harassment made by the petitioners with regard to the demand of dowry soon before her death and there was no live link between the dowry demand and the death of the victim to constitute the offence under Section 304B IPC. Further, from the final report, two set of evidence in respect of cause of death of the victim are available and hence, if this Court would look into the same, it would be clear that it would ultimately lead to acquittal and hence, the ordeal of trial is a futile exercise and without any material to pass conviction, directing the accused to face the ordeal of trial would infringe their right of fair trial. The RDO report indicates dowry death and in the said report, witnesses have deposed before him that murder had taken place. But the doctor opined that the death occurred due to asphyxia as a result of hanging and hence, the credibility of the RDO report is under suspicion. In addition to that some material contradiction regarding the quantity of jewels are found in the statement of the witnesses. Even as per the material, only domestic quarrel alone had taken place and the deceased out of frustration, committed suicide and hence, the proceedings against the accused A2 is liable to be quashed.

5. Mr.G.Karuppasamy Pandian, representing the learned counsel Mr.J.Senthil Kumaraiah, learned counsel for A3 submitted that A3 was not available and never accompanied the deceased on the date of the occurrence and there was no allegation in the FIR as well as in the initial stage of investigation regarding the dowry demand and subsequently, there was exaggeration and embroidered version of the witnesses to suit the offence under Section 304 B IPC and there was no prior complaint regarding the demand of dowry of remaining 30 sovereigns. Apart from that, there was no live link between the date of the death and demand of the dowry and also there was no material available to show abetment of suicide. Considering the entire circumstances, the deceased committed suicide only out of distress and hence he prayed for quashing of the case against A3. The following precedents are relied by the petitioners:
“1. 2022(6)SCC599 [Kahkashan Kausar v. State of Bihar]
2. AIR2022SC69 [Mirza Iqbal and Ors. vs. State of Uttar Pradesh and Ors]
3. 2022(1)LW(Crl)101[Arun Kumar vs.State]
4. 2022(3)MLJ(Crl) 608 [Kandavel and Ors. vs. State] and
5.2011(3)SCC626 [M.Mohan v. State].

6. Per contra, Mr.E.Antony Sahaya Prabahar, learned Additional Public Prosecutor appearing for the State submitted that though the statement reached the Court belatedly, that is not a ground to disbelieve the statement of the witnesses. The witnesses in unison stated that there was a demand of remaining 30 sovereigns of jewels from the date of marriage itself and the deceased was humiliated for the non account of the said demand of dowry in some other way which resulted in the death of the deceased and hence, there is sufficient materials available to frame the charges under Section 304 B IPC apart from the positive RDO report. The points raised by the learned counsel for the petitioners are all disputed factual aspects and the same are to be evaluated only after recording the evidence and hence, the petitioners’ case does not come under the parameter of guidelines issued by the Hon’ble Supreme Court in 2012(9)SCC460, 2016(6)SCC699 & 2006(4)SCC359 and hence, he seeks dismissal of the quash petition.

7. Mr.R.Balamuruganantham, learned counsel for the defacto complainant reiterating the above submission made by the learned Additional Public Prosecutor added that there was a continuous demand of dowry and the same was not meted out by the deceased’s family and hence, the deceased was humiliated and harassed in some other way and sufficient materials are available on record to frame the charges under Section 304B IPC. To countenance the repeated argument of the learned counsel for the petitioners that there was no live link between the occurrence and the demand of dowry, he placed reliance on the judgment of the Hon’ble three Judges Bench of the Hon’ble Supreme Court reported in 2015 (6) SCC 477 and submitted that time lags may differ from case to case and there was no stale demand in this case and the statement of the defacto complainant and other witnesses is that just before the occurrence, ie, immediately before the occurrence on 12.00 o’ clock of the fateful day, there was a demand of dowry and the admissibility of the said statement is within the jurisdiction of the trial Court is a matter of appreciation of evidence after conclusion of the trial. He further stated that no two versions are available and the only version regarding the dowry demand is available. Even assuming that two version regarding the cause of death are available, ie., one version regarding murder of the deceased and the other version regarding the suicide, both come under the provision contained in Section 304B IPC and hence, the offence is made out against the petitioners. Hence, he prayed for dismissal of these petitions.

8. This Court considered the above submissions made by the learned Senior counsel and counsels appearing for both side.

9. So far as the claim that there was a belated examination of the witnesses and their statements reached the Court much later is concerned, the Hon’ble Supreme Court in the case of Harbeer Singh v. Sheeshpal in 2016 (16) SCC 418, has specifically stated that “it is well settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court.”

10. Further, the delay in reaching the Court is the explainable one and the acceptance of the explanation considering the overall circumstances of the case is within the domain of the trial Court. Further whether there was delay in recording the statement with alleged exaggeration is the matter of elicitation of omission during the course of the cross-examination of the witnesses and the acceptance of the said exaggerated version of the witnesses is also within the domain of the trial Court during the appreciation of evidence. If the statement of the witnesses taken as a whole, does not constitute the offence, this Court has the power to exercise the inherent jurisdiction under Section 482 Cr.P.C, to quash the proceedings. But, in this case, from the above statement of the witnesses, it is clear that there is sufficient prima facie materials to frame the charges under Section 304B IPC and other offences to proceed the trial and hence, this Court cannot accept the argument of the learned counsel for the petitioners to quash the proceedings on the ground that the statements are exaggerated versions and that they reached the Court belatedly and that they create the suspicion about the credibility of the witnesses at this stage, as held by the Hon’ble Supreme Court in 1977(4)SCC39 and 2012(9)SCC460.

10(i). 1977(4)SCC39, State of Bihar v. Ramesh Singh, (1977) 4 SCC 39:
“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-…(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not: It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”

10(ii). 2012(9)SCC460, Amit Kapoor vs. Ramesh Chander and Others:
“17. …. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.
19.At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.
27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16) These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence.

11. Further, the specific submission of the learned Senior Counsel is that there are two set of evidence available in respect of the death of the deceased and hence benefit of doubt must be given to the accused. One set of witnesses stated before the RDO that the deceased was murdered by the accused whereas the investigation officer concluded that the deceased committed suicide by hanging, on the basis of the medical report. The said submission of the learned Senior Counsel has no substance for the reason that in either case, the final report under Section 304B IPC is sustainable. According to the statement of the witnesses, there was a continuous demand of dowry, which resulted in the death of the deceased. The death either by murder or by suicide comes under Section 304B IPC and hence, the said submission cannot be sustained. Further, the RDO report is confined to the fact that the deceased died due to dowry demand and is not relating to the manner of death.
12. The existence of the two set of evidence is disputed by the learned Additional Public Prosecutor as well as the learned counsel for the defacto complainant. Even assuming that it is correct, the same will not in any way be a hindrance to frame charges under Section 304B IPC. Power of this Court while exercising the quash jurisdiction under Section 482 Cr.P.C., is different from the appellate jurisdiction of this Court. At the stage of framing of charges, while entertaining the quash petition, this Court has no jurisdiction to act as an appellate Court and re-appreciate the evidence and arrive that two views are possible. It is well settled principle that even if two views are possible, charges can be framed. It would be relevant to quote the principle laid down by the Hon’ble Supreme Court in 2009(8)SCC617 [State of M.P. v. Sheetla Sahai] :
“51. There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence.
54. ….If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.
32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.”

13. The Hon’ble Supreme Court specifically laid down the law that at the stage of framing charges, strong suspicion is enough and even if two types of materials are available, the one in favour of the prosecution can be considered to frame charges and it also stated that the principle of appreciation to be followed in the case of appeal against conviction and the quash and discharge petition is different. Hence, in this case, this Court prima facie finds that all the witnesses specifically stated that there was a continuous demand of dowry and it is for the trial Court either to believe or disbelieve their evidence after conclusion of the trial. Hence, this Court is not inclined to accept the contention of the learned Senior Counsel appearing for A2.

14. The learned counsel for the petitioners submitted that there was no proximity between the death and the demand of dowry. In sum and substance, they submitted that there was no live link which was essential to bring the offence under Section 304B IPC for the reason that the prosecution is duty bound to prove that there was nexus between the act of the accused and cause of the death, (in short, the prosecution has to prove that soon before death, there was some demand of dowry on the part of the accused). In this regard, the learned counsel appearing for the defacto complainant rightly placed reliance of the Hon’ble three Judges Bench of the Supreme Court reported in 2015(6)SCC477 [Rajinder Singh v. State of Punjab], wherein the Hon’ble Supreme Court laid down the meaning of “soon before her death”:
“21. Coming now to the other important ingredient of Section 304B IPC-what exactly is meant by “soon before her death”?
22.This Court in Surinder Singh v. State of Haryana [(2014) 4 SCC 129] had this to say: (SCC pp. 137-39, paras 17-18)
17. “Thus, the words ‘soon before’ appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words ‘soon before’ is, therefore, important. The question is how ‘soon before’? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, ‘soon before’ is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term ‘soon before’. The relevant observations are as under: (SCC pp. 222-23, para 15)
‘15. … “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.’
Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.”
23. In another recent judgment in Sher Singh v. State of Haryana [(2015) 3 SCC 724 : (2015) 2 SCC (Cri) 422 : (2015) 1 Scale 250] , this Court said: (SCC p. 739, para 16)
16. “… We are aware that the word ‘soon’ finds place in Section 304-B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304-B or the suicide under Section 306 IPC. Once the presence of these concomitants is established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.” (at Scale p. 262)

24. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word “soon” does not mean “immediate”. A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304-B would make it clear that the expression is a relative expression. Time-lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304-B.”

15. In this case, demand of dowry is closely proximate with the time of the occurrence and also the statement of the witnesses are that there was continuous demand of dowry for the number of years and more particularly, just prior to the occurrence. Hence, the issue of the live link or proximity is the matter for trial and hence, the ground of absence of the live link has to be agitated before the trial Court.

16.1. The following precedents relied by the petitioners are not applicable to the present case.
“2022(6)SCC599,AIR2022SC69,2022(1)LW(Crl)101,2022(3)MLJ608 and 2021(3)SCC626.”

16.2. Among the above judgments, except 2021(3)SCC626, all the cases were dealt by the Hon’ble Supreme Court in the case of the appeal against conviction and the Hon’ble Supreme Court extended the jurisdiction of appreciation of evidence recorded by the trial Court, accepted by the appellate Court and finally rendered judgment of acquittal on the factual aspect. In 2021(3)SCC626, the Hon’ble Supreme Court quashed the proceedings on perusal of the statement of the witnesses during the investigation and taking into consideration the negative RDO report, ie., the RDO categorically held that there was no dowry demand and quashed the proceedings. But in this case, apart from the statement of the witnesses, the RDO enquiry report clearly revealed that there was a demand of dowry.

17. In the said circumstances, the precedent relied by the learned counsel for the petitioners do not advance the case of the petitioners. When the submission of the petitioners demand the appreciation of the evidence at this stage, it would amount to acting as Appellate or Revision Court and it is not in the domain of this Court while exercising the inherent power under Section 482 Cr.P.C to quash the proceedings, as per the decision of the Hon’ble Supreme Court reported in 2006(4)SCC359 [Minu Kumari v. State of Bihar]:
“19. ….While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.
20. ……The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. …”

17.2. 2015(14) SCC 559 [ S.Krishnamoorthy v. Chellammal]:

“5.The above defence of the respondent (the accused) before the High Court, in the petition filed under Section 482 of the Code, is nothing but absolutely factual in nature, which is neither admitted by the complainant, nor apparent on the face of the record. Such type of disputed factual defences could have been appreciated only by trial Court, after the parties led their evidence. In our opinion, the High Court committed grave error of law in examining the allegations and counter-allegations which are disputed and factual in nature in a proceeding under Section 482 of the Code.
7. In view of the position of law, we have no option but to set aside the order passed by the High Court as it has entered into highly disputed questions of fact and concluded that the material before it was sufficient to cause reasonable suspicion in the case of the complainant. That is not the ground on which powers under Section 482 of the Code can be exercised by the High Court.”

17.3. (2019)SCC Online SC 2058[M. Jayanthi v. K.R. Meenakshi]:
“9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the pre-conditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged.
12. Unfortunately, the High Court put the cart before the horse and held that the appellant had not produced any evidence to prove the entry in the Government Gazette though it is a relevant fact under Section 35 of the Indian Evidence Act. Much before the case could reach the stage of trial, the High Court shut the door for the appellant and pre-concluded the issue as though there was no evidence at all. This is completely contrary to law.”

18. The alleged contradiction between the witnesses’ statement regarding the quantity of jewels is also a matter for evidence. Similarly, while considering the claim that the deceased met her death out of distress, the question whether the distress comes out of demand of dowry or not, is to be decided after recording the evidence in the trial. So, in all aspect, this Court does not find any merit to entertain the quash petitions filed by the petitioners.

19. In the result, the Criminal Original Petitions, viz., Crl.O.P(MD)Nos.15955 of 2017 and 15498 of 2020 are dismissed with a direction that the learned trial Judge shall independently appreciate the evidence and render justice without getting influenced by the above discussion which is meant only for deciding the above quash petitions. Consequently, connected miscellaneous petitions are closed.

Crl.O.P(MD)No.1623 of 2021:
20. The defacto complainant has filed the petition in Crl.O.P(MD)No.1623 of 2021, seeking a direction to the learned District Munsif-cum-Judicial Magistrate, Ilayangudi, Sivagangai District, to commit the case to the Sessions Court for trial in PRC.No.3/2017. Considering that the case is pending from 2016 onwards without any committal and also considering the age of some of the witnesses, this Court allows the above Criminal Original Petition with the following directions:
1. The learned District Munsif-cum-Judicial Magistrate, Ilayangudi, Sivagangai District, is directed to complete the committal proceedings within two weeks from the date of the next hearing date.
2. The learned Sessions Judge is strictly directed to complete the trial within two months thereafter from the date of committal of case.
3. The accused are hereby directed to cooperate for the trial without being absent and in case of any absence, the trial Court is at liberty to proceed the trial in accordance with Section 299 Cr.P.C, ie., record the evidence in the absence of the accused and conclude the trial within the above time frame.
Consequently, connected Crl.M.P(MD)No.967 of 2021 is closed.

01.06.2023
NCC : Yes/No
Internet:Yes/No
Index : Yes/No
PJL

To

1.The District and Sessions Judge,
Sivagangai District.

2.The District Munsif cum Judicial Magistrate Court,
Ilayangudi,
Sivagangai District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

K.K.RAMAKRISHNAN,J.
PJL

Order made in
Crl.O.P(MD)Nos.15955 of 2017,
15498 of 2020 and 1623 of 2021
and
Crl.M.P(MD)Nos.10584 & 10585 of 2017,
7557 of 2020 and 967 of 2021

01.06.2023