Crl.O.P.No.28178 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.02.2023

CORAM

THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

Crl.O.P.No.28178 of 2022

and

Crl.M.P.No.17343 of 2022

1.Junaith

2.Peer Mohamed

...

Petitioner

-vs-

1.The State represented by

The Inspector of Police,

Virinjupuram Police Station,

Vellore District.

2.Badrunissa Begam

[R2 impleaded as per order

dated 19.01.2023

in Crl.M.P.No.681 of 2023 in

Crl.O.P.No.28178 of 2022]

...

Respondents

Prayer : Criminal Original Petition has been filed under Section 482 of

Cr.P.C. to call for the records pertaining to the proceedings in

Crl.M.P.No.13616 of 2022 in C.C.No.653 of 2014 on the file of learned

Judicial Magistrate No.V, Vellore and quash the same as illegal, abuse of

the process of law and barred by doctrine 'Issue Estoppel' and thus render

justice.

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Crl.O.P.No.28178 of 2022

For Petitioner

... Mr.P.Rajkumar

For R-1

... Mr.S.Santhosh

Government Advocate (crl.side)

ORDER

This Criminal Original Petition has been filed to call for the records

pertaining to the proceedings in Crl.M.P.No.13616 of 2022 in C.C.No.653

of 2014 on the file of learned Judicial Magistrate No.V, Vellore and quash

the same as illegal, abuse of the process of law and barred by doctrine

'Issue Estoppel' and thus render justice.

2. Learned counsel for the petitioner submitted that, 1^st respondent

had filed a petition before the trial Court under Section 173 (5) of Cr.P.C.

for reception of certain additional documents in C.M.P.No.322 of 2015.

Learned trial Judge, after considering the petition and counter filed by the

respondent, dismissed the petition stating the reasons that,

(i) The provision quoted for reception of documents under Section

173(5) Cr.P.C is not maintainable.

(ii) The petition was filed after a lapse of 8 years.

(iii) The delay is not property explained.

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Crl.O.P.No.28178 of 2022

(iv) The prosecution tried to fillup the lacuna at a belated stage.

For all these reasons, that petition was dismissed.

3. Challenging the dismissal of the petition, the 2^nd

respondent/defacto complainant filed Crl.R.C.SR.No.15847 of 2022 along

with Crl.M.P.No.4970 of 2022 for condonation of delay. However, the

delay condonation was dismissed by this Court.

4. It is the submission of the learned counsel for the petitioner that,

when the revision is not entertained, the order of learned Judicial

Magistrate passed in Crl.M.P.No.322 of 2015 has become final. That being

the case, 1^st respondent has again filed a petition under Section 242(2)

Cr.P.C for reception of additional documents, mostly documents referred in

Crl.M.P.No.322 of 2015. Once the petition filed for reception of documents

was dismissed and order has become final and filing of this petition is

against the law and abuse of process of Court. Therefore, he prays for

quashing the proceedings in Crl.M.P.No.13616 of 2022 in C.C.No.653 of

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Crl.O.P.No.28178 of 2022

2014 on the file of learned Judicial Magistrate No.V, Vellore.

5. In support of this submission, he produced Judgment reported in

[2013 9 SCC 235] in the case of Ravinder Singh Vs. Sukhbir Singh and

others for proposition that

“the rule of “issue estoppel” prevents re-litigation as to an

issue already determined in a criminal trial between the

parties concerned.”

6. In response, learned Government Advocate (Criminal side)

submitted that, learned Judicial Magistrate No.V, Vellore has not disposed

Crl.M.P.No.13616 of 2022 and it is pending. Earlier petition filed under

Section 173(5) Cr.P.C in Crl.M.P.No.322 of 2015 was dismissed on

technical ground, for the reason that, provision was misquoted and there

was a delay. Mere misquoting of provision is not a ground for rejection of

documents, if the documents would help the Court in