SEKAR REPORTER

Court News from Madras High Court

Sivasankar baba case police filed petition to recall order of quash by mhc

by ·

I

[10/28, 12:05] Sekarreporter 1: Godman Shivashankara Baba case state files Recall petition against the order of quash before High court of Madras. Case mentioned today at 10:30 and will be taken up on Monday.
Mentioned by
A.Damodaran
Addl . public prosecutor
[10/28, 12:09] Sekarreporter 1: …

 

 

 

N THE HIGH COURT OF JUDICATURE AT MADRAS

Crl.MP.No.           of 2022

Against

Crl.OP.No.23806 of 2021

&

Crl.MP.No.13107 of 2021

 

State represented by,

Inspector of Police,

Organized Crime Unit-II,

CBCID, Chennai.                                        …Petitioner/Respondent/Complainant

-Vs-

Siva Shankar Baba, [M/A 73 Years],

S/o. M. Narayana Sharma,

Presently he is in Central Prison, Puzhal,

Permanently residing at,

D-8, Mahajothi Nilayam,

Sriramarajayam Campus,

Kelambakkam,

Chengalpattu District.                            …Respondent / Petitioner/Accused

 

AFFIDAVIT FILED BY A.RENUKA DEVI, INSPECTOR OF POLICE, ORGANIZED CRIME UNIT-II, CRIME BRANCH CID, CHENNAI

I, A.Renuka Devi, aged 43 years,  W/o. C. Senthilkumar presently serving as Inspector of Police, Organized Crime Unit-II, Crime Branch CID, Chennai do hereby solemnly affirm and sincerely state as follows:-

  1. It is submitted that I am the Investigating Officer of the case in CBCID, OCU-II, Chennai Cr.NO.2/2021, U/s.354 IPC and Section 4 of Tamil

 

Nadu Prohibition of Harassment of Women Act, 2002  and the respondent No.1 in Crl.OP.No.23806/2021, as such I am well acquainted with the facts and circumstances of the case and all the averments made in Crl.OP.No.23806/2021 by the petitioner/accused therein.

3.It is submitted that as per the proceedings of the Director General of Police/Head of Police Force, Tamil Nadu, Chennai in RC.No.004746/Crime 4(1)/2021, dated 16.08.2021 and Memorandum of the Director General of Police, Crime Branch CID, Tamil Nadu in C.No.421/011746/Crime II (I)/2021, dated 17.08.2021 based on the petition through Email by the defacto complainant, dated 20.07.2021, a case in CBCID, OCU-II, Chennai Cr.No.2/2021, U/s. 354 IPC & Section 4 of Tamil Nadu Prohibition of Harassment of Women Act,2002 was registered on 19.08.2021 and investigated.

4.It is respectfully submitted that the defacto complainant/victim alleged that her son Arvind was pulled out from the class and was informed that the transfer certificate was given by the authorities of Sushil Hari International Residential School, Kelambakkam.  Immediately, the defacto complainant came to the school and met Mr.Venkataraman, Principal of the school for an explanation.    Mr.Venkataraman had told  her that her son was academically very weak and could no longer continue in their school as it would affect their 100% pass results.    Therefore, Mr.Venkatraman could not give a reasonable explanation and he had directed the complainant to meet Mrs.P.Sudha, who was aware of Arvind’s learning disability.    Mrs. P. Sudha in turn asked the defacto complainant to meet Mr. Siva Shankar Baba at his lounge.  The attendant of Mr. Siva Shankar Babu informed the same to Siva Shankar Baba, finally Siva Shankar Baba agreed to meet her, but he insisted that she alone should come inside the lounge for discussion.

5.It is submitted that when the complainant tried to explain the issue, Siva Shankar Baba cut her off and instructed her to go to the washroom and wash her mouth, face, hands and legs before talking to him.   When the defacto complainant asked for an explanation, Siva Shankar Baba came close to the defacto complainant, grabbed her hand and forcefully pulled the defacto complainant towards him.  Immediately, the defacto complainant pulled herself away and left the lounge crying without uttering a single word.

6.It is submitted that the Accused/Respondent Siva Shankar Baba had filed a petition U/s. 482 of Cr.P.C in Crl.OP.No.23806/2021 to quash the FIR in Crime No.2/2021 lodged before the OCU-II, CBCID, Chennai.  It is respectfully submitted that it is an extra-ordinary case, the Accused/Respondent Siva Shankar Baba has not only committed sexual offences against the defacto complainant, but also to the 6 innocent school students and one parent of the student of Sushil Hari International Residential School, Kelambakkam.  Thus, based on the complaints of other 7 victims, 7 more cases were registered Accused/Respondent Siva Shankar Baba & others.

7.It is further submitted that in all the above said cases, Accused/Respondent Siva Shankar Baba is prime accused, who had committed the sexual offence against the innocent children/students of Sushil Hari International Residential School with the aid of some of the teachers and the said school was also arrayed as accused in the above said cases. Further Accused/Respondent Siva Shankar Baba targeted the innocent children students, who are economically weak or children of single parent or single parents and sexually abused them on various occasions.

8.It is further submitted that this Hon’ble Court has allowed the quash petition in Crl.OP.No.2306/2021, and quashed the FIR in Cr.No.2/2021 against the Accused/Respondent Siva Shankar Baba by it’s order dated 17.10.2022.  It is submitted that this Hon’ble High Court has allowed the quash petition on the ground that “ the allegation made by the second respondent is serious in nature, because of the absence of  any petition under section 473 Cr.P.C to condone the delay filed along with the complaint, the case becomes barred by limitation.    In the said circumstances,   I feel that the investigation, cannot serve any fruitful purpose and for the reasons of technical flaw, the FIR is liable to be quashed.

In the above circumstances, and for the following grounds, it is humbly prayed that this Hon’ble Court may be pleased to recall the  order in Crl.OP.No.23806/2021, dated 17.10.2022 to secure the ends of justice.

GROUNDS

A). NO OPPORTUNITY GIVEN TO THE DE-FACTO COMPLAINANT/VICTIM:-

 

  1. It is further submitted that no notice was issued to the defacto complainant/victim, and as such, no opportunity was provided to her to explain her case. The Hon’ble Supreme Court and also the High Courts have held in several cases that the informant/defacto complainant has to be heard/given an opportunity to make his submissions before allowing a quash petition.

2.It is submitted that an order passed without any notice being issued to the defacto complainant/victim, especially in a case alleging sexual offence of this nature is against the  principles  of natural justice.

B).LIMITATION BAR CANNOT BE THE ONLY GROUND TO QUASH CRIMINAL PROCEEDINGS:

 

3.It is submitted that the victim/defacto complainant in a case of this nature, involving sexual offence/offence against women, cannot be expected to be aware of a time period to file a complaint, and that is why section 473 of the Cr.P.C acts as an overriding provision on section 468 of Cr.P.C.

4.It is submitted that there have been several instances where the Hon’ble Supreme Court and Hon’ble High Courts have held that that bar of limitation by itself cannot be the only ground to quash criminal proceedings.

C).COGNIZANCE NOT TAKEN UNTIL FINAL REPORT U/s. 173 IS FORWARDED TO THE MAGISTRATE

  1. It is submitted that there was no such observation made by the Hon’ble Supreme Court in Sara Mathew [supra], with regard to a petition U/s.473 of the Cr.P.C being filed along with complaint, and that the same should be forwarded to the Magistrate along with the FIR, so that he applies his mind to both the petition U/s.473 of the Cr.P.C and the FIR.  Accordingly to the law laid down in Sarah Mathew[supra], a petition to condone delay U/s.473 of Cr.P.C is only required at the stage of cognizance.
  2. It is submitted that as per Section 190 of the Cr.P.C and various landmark judgments of the Hon’ble Supreme Court, for a case initiated through police report, cognizance is only taken when the Magistrate applies his mind to the police report forwarded to him U/s.173(2) of the Cr.P.C with the intention of proceeding under Chapter XV of the Cr.P.C., however, not at any time.
  3. It is submitted that according to the dictum laid down by the Hon’ble Supreme Court, the Magistrate cannot be said to have taken cognizance unless he has applied his mind to the material before him with the intention of proceedings under section 200 and provisions thereon (Chapter XV of the Cr.P.C] . It is humbly submitted that if cognizance to the taken under section 190 of the code, the Magistrate has to have received a private complaint/Police report/information from person other than a police officer.

8.It is submitted that in the present case, there was no police report forwarded nor such application of mind from the Magistrate.   Therefore no cognizance can be said to have been taken when the notice of FIR being lodged was forwarded to the concerned Magistrate.  As such, the observation made by this Hon’ble Court may not sustainable in the eye of law.

D).INHERENT POWER OF THIS HON’BLE COURT U/S.482 Cr.P.C to RECALL IT’S ORDER TO SECURE THE ENDS OF JUSTICE:

 

  1. It is submitted that in this aspect, the Hon’ble Supreme court recently has held that the High Courts can exercise their inherent power U/s.482 of the Cr.P.C. to recall it’s orders/judgments which was passed without jurisdiction. Or in violation of principles of natural justice, or passed without giving an opportunity of hearing to a party affected by the order or where an order was obtained by abusing the process of court.

 

 

It is therefore prayed that for the reasons stated above, this Hon’ble Court may be pleased to recall the order dated 17.10.2022 passed in Crl.OP.No.23806/2021  and thus render justice.

Solemnly affirmed at Madras               ()

This the 27th day of October,2022     ()

And signed his name in my presence ()                               BEFORE ME

 

 

9th and last page:

No. of corns:-                                                       ADVOCATE, MADRAS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

You may also like...