(Prayer: To call for the records pertaining to the impugned charge sheet filed by the 1st respondent in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur and to quash the same.

To call for the records pertaining to the impugned order dated 04.11.2023 passed in Crl.M.P.No.3851 of 2023 in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur and to quash the same.)

Common Order:

1. The present quash petition in CRL OP(MD)No.19451 of 2023 is filed under section 482 of Cr.P.C. to quash the impugned charge sheet filed by the 1st respondent in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur. The present quash petition in CRL OP(MD)No.21156 of 2023 is filed under section 482 of Cr.P.C. to quash the impugned order dated 04.11.2023 passed in Crl.M.P.No.3851 of 2023 in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur and to quash the same.

2. The 1st petitioner namely J.Shriram Kumar is the husband of the 2nd respondent / defacto complainant (in CRL OP(MD)No.19451 of 2023) namely Akino. The case of the prosecution in the Final Report is that on 11.05.2023 the husband along with other petitioners had assaulted and abused the 2nd respondent wife. Hence the FIR was registered in Crime No.301 / 2023 dated 12.05.2023 for the alleged offences under section 294(b), 323, 355 and 506(2) of the Indian Penal Code and section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 and final report is filed in C.C.No.249 of 2023. The husband had filed quash petition in CRL OP(MD)No.19451 of 2023 to quash the said C.C.No.249 of 2023. For the same cause of action, the husband had filed FIR in Crime No.302 of 2023 against the wife and her parents and relatives and the same was closed as mistake of fact. When the things stood thus, the 1st petitioner filed Crl.O.P.No.8992 of 2023 seeking anticipatory bail and the same came to be granted by High Court vide order dated 18.05.2023. The condition imposed was also completely relaxed by the Court vide order dated 11.07.2023. Subsequently when the petitioner was about to leave India for his avocation, he was intercepted and prevented from going abroad on the ground that a “Lookout Circular” was issued by the Superintendent of Police, Madurai. Aggrieved over the same the husband had Crl.O.P.No.15065 of 2023 and the High Court vide order dated 10.10.2023 directed the husband to approach the concerned Court to seek permission to trave abroad. In the aforesaid background the petitioner had preferred Crl.M.P. 3851 of 2023 to set aside the lookout circular and prayed to travel abroad. The same was dismissed vide order dated 04.11.2023. Challenging the same CRL OP(MD)No.21156 of 2023 is filed.

3. Heard Mr.S.R.Raghunathan, the Learned Senior Counsel for M/s.S.M.Arun Kumar appearing for the petitioners 1 to 3, Mr.A.S.Abul Kalaam Azad the Learned Government Advocate (Crl.side) appearing for the prosecution and Mr.Jegadeesh Pandian, for the defacto complainant and there is no appearance for the 4th petitioner and perused the records. After hearing the rival submissions, this Court has given its anxious consideration.

4. The contention of the petitioner is that the section 294(b) is not applicable to the facts of the case. The relevant section is extracted hereunder:

                   “Section 294. Obscene acts and songs. —Whoever, to the annoyance of others,

                   (a) does any obscene act in any public place, or

                   (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

The said section is applicable if the accused utters any words to the annoyance of others in public place. In the present case, on reading of charge sheet would indicate that the allegation is that the petitioner uttered “bad words” and has not mentioned what are the words. Hence this Court is of the considered opinion that the allegation is bald. Even uttered the allegations would not satisfy the ingredient “words uttered at the annoyance of others”. Further it is an incident occurred at the entrance of the house which would indicate it is not uttered in public place. In such circumstances, the ingredients of section 294(b) are not attracted and the said section is not applicable.

5. The next allegation against the petitioners is under sections 323 of IPC and the relevant sections is extracted hereunder:

                   "323. Punishment for voluntarily causing hurt. —Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

The word “voluntarily causing hurt” is defined in section 321 and the same is extracted hereunder:

                   "321. Voluntarily causing hurt. —Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said “voluntarily to cause hurt”.

In the Final Report it is stated that the accused had pulled the defacto complainant by hair, pulled her to floor, hurt on the chest using hand and hit her stomach thereby caused simple injury. The defacto complainant was admitted as inpatient in the Meenakshi Mission Hospital from 11.05.2023 to 13.05.2023 and after treatment was discharged with a certificate as simple injury. It is seen that the 1st accused / husband was invited to visit the defacto complainant house for compromise, wherein the 1st accused alleges that the defacto complainant and her family members coerced and assaulted him. Thereafter the defacto had visited on her own to the house of the 1st accused / husband house. When the defacto complainant visited the house of the accused, she was prevented from entering the house and there were push and pull between the parties. This would indicate that there is no intention to the accused to voluntarily cause hurt to the defacto complainant. Moreover, the accused are not the aggressor. In such circumstances, the ingredient of section 323 to cause hurt voluntarily with intention is absent and the incident happened as defence. Therefore, this Court is of the considered opinion that the section 323 is not attracted.

6. The next contention is that the section 355 is not attracted and the relevant section is extracted hereunder:

                   "355. Assault or criminal force with intent to dishonour person, otherwise than on grave provocation.—Whoever assaults or uses criminal force to any person, intending thereby to dishonor that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The ingredients to attract the above section are that the accused must have assaulted with criminal force, with an intent to cause dishonor, insult or humiliation to the victim, the act must not be the result of provocation by the victim and the act is with the knowledge that the action would likely lower the victim’s standing in the eye of others. In the present case, as already held that the supra, the 1st accused / husband was invited to visit the defacto complainant house for compromise, wherein the 1st accused alleges that the defacto complainant and her family members coerced and assaulted him. Thereafter the defacto had visited on her own to the house of the 1st accused / husband house. When the defacto complainant visited the house of the accused, she was prevented from entering the house and there were push and pull between the parties. This would indicate that there is no intention to dishonor, insult or humiliate the victim. Also indicates that the alleged act would not likely lower the victim’s standing in the eye of others. Moreover, the accused are not the aggressor in the present case and the act is the result of provocation by the victim, if so the section 355 is not attracted.

7. The next contention is that the section 506(ii) of 1.P.C. is not attracted. In order to attract the said section, there ought to be grievous hurt. The final report has not stated that there is grievous hurt to the defacto complainant, it is only simply injury as per the medical report. Therefore, this Court is of the considered opinion that the said section 506(ii) is not attracted.

8. The learned counsel appearing for the petitioner submitted that the FIR filed by the husband / petitioner was closed as mistake of fact and the petitioner had filed protest petition which is pending. Whereas the FIR filed by the wife / defacto complainant was proceeded and charge sheet had been filed. When there is case and case-in-counter, then before hearing the protest petition, the other FIR ought to be kept in abeyance as held in judgment dated 08.08.2024 rendered by the Hon’ble Full Bench in T.Balaji Vs. the State in Crl.O.P.Nos. 4587 of 2023 batch cases. This Court is of the considered opinion based on the reasons stated supra, this Court is inclined to quash the charge sheet, hence the issue regarding the case and case-in-counter is left open. In case, if the petitioner is aggrieved over by any appeal against this order, he is at liberty to adjudicate this issue before this Court.

9. Based on the above discussion the petitioner is entitled to the quash the charge sheet and accordingly the charge sheet filed by the 1st respondent in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur is hereby quashed and the CRL OP(MD)No.19451 of 2023 is allowed. Consequently, connected miscellaneous petition is closed.

10. The CRL OP(MD)No.21156 of 2023 is filed to quash the impugned order dated 04.11.2023 passed in Crl.M.P.No.3851 of 2023 in C.C.No.249 of 2023, on the file of the Judicial Magistrate, Melur. In the said impugned order dated 04.11.2023, the petitioner had challenged the “lookout notice” issued by the prosecution / respondents. The Judicial Magistrate has declined to quash the “lookout notice” and the reason stated is that, if the “lookout notice” is quashed then the petitioner would fail to appear for the Trial. This Court is of the considered opinion that the said reason is not acceptable, since the FIR and charge sheet was filed in year 2023, the impugned order was passed in the year 2023 and case has not taken for Trial. Therefore, this Court is of the considered opinion the impugned order dated 04.11.2023 is liable to be quashed.

11. Further this Court has already quashed the charge sheet and the basis on which the “lookout notice” was issued is not available and hence the impugned order is liable to be quashed. Accordingly, the impugned order dated 04.11.2023 is quashed and CRL OP(MD)No.21156 of 2023 is allowed.

12. It is so unfortunate that the present criminal cases were filed when there was an attempt to compromise. Further the husband and wife are fight the matrimonial issues at the cost of the minor children education and their life. In the present case, in order to facilitate the minor child Dhanyasree education, marriage and her future this Court directed the 1st petitioner to file an affidavit indicating the financial support that would be extended to the minor child and the petitioner had filed the same, which is extracted hereunder:

                   "5.On this background, this Hon'ble Court has directed me to file an affidavit giving undertakings of the above said proposals to settle all the litigation. In due obedience thereof, I am submitting this affidavit with the following undertakings:

                   a. I will make a fixed deposit for a sum of Rs. 15,00,000/- in the name of Minor Dhanyasree within three months from today i.e., 16.06.2026 or before leaving India, whichever is earlier. The said Fixed Deposit would get matured and be available for the disposal of my daughter Dhanyasree on 18.07.2034.

                   b. I will make another fixed deposit for a sum of Rs.15,00,000/- in the name of Minor Dhanyasree within 16.09.2026 or before leaving India, whichever is earlier. Similarly, this Fixed Deposit would also get matured and be available for the disposal of my daughter Dhanyasree on 18.07.2034.

                   c. I will make another fixed deposit for a sum of Rs. 10,00,000/- in the name of Minor Dhanyasree within 01.02.2027 or after leaving India, whichever is later. Similarly, this Fixed Deposit would also get matured and be available for the disposal of my daughter Dhanyasree on 18.07.2034.

                   d. I will bear all the educational expenditure of my daughter Dhanyasree."

Accepting the same, this Court is directing the 1st petitioner to adhere to the above four undertakings in letter and spirit. In case if there is any default, the minor child is at liberty to approach this Court.