Andhra Pradesh High Court - Amravati
Thota Saraswathi Swaraswathamma vs Thota Venkata Padmavathi on 4 September, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR
CRIMINAL PETITION No.7633 of 2013
ORDER:-
Heard the learned counsel for the petitioners/accused Nos.2 to 8 and the learned Public Prosecutor for respondent No.2/State.
2. As there was no representation on behalf of respondent No.1 yesterday i.e., on 3.9.2020, the matter was directed to be listed to today under the caption "For Orders". Even today also, there is no representation on behalf of respondent No.1/de facto complainant.
3. The present Criminal Petition is filed by the petitioners/accused Nos.2 to 8 under Section 482 of the Criminal Procedure Code, 1973 to quash the proceedings in C.C.No.216 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Chirala, Prakasam District.
4. A charge sheet came to be filed against the accused for the offences punishable under Sections 498-A, 509 and 323 read with 34 I.P.C.
5. The averments in the charge sheet are as under:-
The marriage of respondent No.1/L.W.1 was performed with A-1 on 30.6.1999 at Pedakakani of Guntur District in the presence of their caste elders and relatives as per Hindu caste custom. The said marriage was arranged by A-3 and A-4. At the time of marriage, L.Ws.2 and 3 gave Rs.70,000/- cash, seven sovereigns of gold and household articles to A-1. Later, L.W.1 joined A-1 and both of them lead a happy marital life for about ten years. It is 2 said that during their matrimonial life, L.W.1 gave birth to a baby girl. Unfortunately, she died within few days. It is said that since then, A-1, A-1's mother - A-2, and A-1's sisters and brothers - A-3 to A-8 have been harassing L.W.1 both mentally and physically on the ground that she had no children. The husband of L.W.1 and in-laws were harassing L.W.1 with taunting words and criticizing her and also suspecting her character and conduct. It is further alleged that the accused also suspected the fidelity of L.W.1 with her own brother. Later, A-1 suddenly fell ill and was admitted in Usha Cardiac Hospital, Vijayawada. During that period, L.W.1 used to be in the hospital for taking care of her husband.
However, the accused suspected the conduct of L.W.1 with the hospital staff and shamed her before the hospital staff. It is said that L.W.1 sold her gold ornaments to meet the hospital expenses with the pressure of A-1 to A-8. After taking treatment, A-1 went to his house at Gopalnagaram, Ongole. Since then, A-1 was harassing the informant at the instigation of A-2 to A-8. The averments in the charge sheet further show that A-1 was abusing L.W.1 in filthy language suspecting her character and conduct with the neighbours. The explanation offered by L.W.1 about her innocence was not accepted by the accused. L.W.1 gave a legal notice to her husband stating that she is ready to join the marital life with A-1 but there was no response from A-1. Thereafter, L.W.1 filed a maintenance case against A-1. It is stated that in the month of April, 2011, A-1, A-5 to A-7 came to the house of L.W.1 and abused her in filthy language and forced her to sign on the divorce papers but the same was rejected by L.W.1. Basing on these allegations, a report came to be lodged, which was registered 3 as Crime No.53 of 2012 of Chirala I Town Police Station. The police, after investigation, filed charge sheet, which was taken on file as C.C.No.216 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Chirala, Prakasam District.
6. Sri N.Ravi Prasad, learned counsel for the petitioners, would submit that even accepting the allegations in the charge sheet as true, no offence is made out against the petitioners as the allegations are vague and omnibus in nature. In support of his plea, he relied on a judgment of the Apex Court in Geeta Mehrotra & Another vs. State of U.P. & Another1 wherein it is held at para Nos.19, 24 and 27 as under:
"19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the 1 2013 (1) SCC (Cri) 120 4 main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law.
Simultaneously, the Courts are expected to
adopt a cautious approach in matters of
quashing specially in cases of matrimonial
dispute whether the FIR in fact discloses
commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed."
7. Learned counsel for the petitioners also relied on a judgment of the Apex Court reported in Neelu Chopra vs. Bharti2 wherein it is held at para Nos.5 and 7 as under:
"5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed 2 2009 (10) SCC 184 5 by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.
7. This is apart from the fact that despite service of notice, the complainant neither appeared before this Court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482 Cr.P.C."
8. In Ramesh and others vs. State of Tamilnadu's case,3 the Apex Court held in para Nos.6, 8, 11 & 12 as under:
"6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant Gowri Ramaswamy. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offences, viz., Sections 498-A, 406 I.P.C. and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of the informant by her sister-in-law (the appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant 3 (2005) 3 Supreme Court Cases 507 6 to wash W.C. and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are our slave." It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed.
8. On the point of limitation, we are of the view that the prosecution cannot be nullified at the very threshold on the ground that the prescribed period of limitation had expired. According to the learned counsel for the appellants, the alleged acts of cruelty giving rise to the offence under Section 498-A ceased on the exit of the informant from the matrimonial home on 2.10.1997 and no further acts of cruelty continued thereafter. The outer limit of time for taking cognizance would therefore be 3.10.2000, it is contended. However, at this juncture, we may clarify that there is an allegation in the F.I.R. that on 13.10.1998/14.10.1998, when the informant's close relations met her in-laws at a hotel in Chennai, they made it clear that she will not be allowed to live with her husband in Mumbai unless she brought the demanded money and jewellery. Even going by this statement, the taking of cognizance on 13.2.2002 pursuant to the charge-sheet filed on 28.12.2001 would be beyond the period of limitation. The commencement of limitation could be taken as 2.10.1997 or at most 14.10.1998. As pointed out by this Court in Arun Vyas v. Anita Vyas, [(1999) 4 SCC 690 : 1999 SCC (Cri) 629], the last act of cruelty would be the starting point of limitation. The three year period as per Section 468(2)(c) would expire by 14.10.2001 even if the latter date is taken into account. But that is not the 7 end of the matter. We have to still consider whether the benefit of extended period of limitation could be given to the informant. True, the learned Magistrate should have paused to consider the question of limitation before taking congnizance and he should have addressed himself to the question whether there were grounds to extend the period of limitation. On account of failure to do so, we would have, in the normal course, quashed the order of the Magistrate taking cognizance and directed him to consider the question of applicability of Section 473. However, having regard to the facts and circumstances of the case, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution to remit the matter to the trial Court for taking a decision on this aspect. The fact remains that the complaint was lodged on 23.6.1999, that is to say, much before the expiry of the period of limitation and the F.I.R. was registered by the All Women Police Station, Tiruchirapalli on that day. A copy of the F.I.R. was sent to the Magistrate's Court on the next day, i.e., on 24.6.1999. However, the process of investigation and filling of charge-sheet took its own time. The process of taking cognizance was consequentially delayed. There is also the further fact that the appellants filed Writ Petition (Crl.) No. 1719/2000 in the Bombay High Court for quashing the F.I.R. or in the alternative to direct its transfer to Mumbai. We are told that the High Court granted an ex parte interim stay. On 20.8.2001, the writ petition was permitted to be withdrawn with liberty to file a fresh petition. The charge-sheet was filed four months thereafter. It is in this background that the delay has to be viewed. The approach the Court has to adopt in considering the question of limitation in regard to the matrimonial offences was highlighted by this Court in the case of Arun Vyas (supra). While pointing out in effect that the two limbs of the enabling provision under Section 473 are independent, this Court observed thus : (SCC p.696, para 14) "14. .....The first limb confers power on every competent Court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and the second limb empowers such a Court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that is necessary so to do in the interests of justice. It is true that the expression "in the interest of justice"
8in Section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is "interest of justice". The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 CrPc in favour of a wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying the rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of the period of limitation in the interests of justice. This is only illustrative, not exhaustive."
11. In the view we are taking, it is not necessary for us to delve into the question of territorial jurisdiction of the Court at Trichy in detail. Suffice it to say that on looking at the complaint at its face value, the offences alleged cannot be said to have been committed wholly or partly within the local jurisdiction of the Magistrate's Court at Trichy. Prima facie, none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction of that Court. Almost all the allegations pertain to acts of cruelty for the purpose of extracting additional property as dowry while she was in the matrimonial home at Mumbai and the alleged acts of misappropriation of her movable property at Mumbai. However, there is one allegation relevant to Section 498-A from which it could be inferred that one of the acts giving rise to the offence under the said Section had taken place in Chennai. It is alleged that when the relations of the informant met her in-laws at a hotel in Chennai where they were staying on 13.10.1998, there was again a demand for dowry and a threat to torture her in case she was sent back to Mumbai without the money and articles demanded.
12. Thus the alleged acts which according to the petitioner constitute the offences under Sections 498-A and 406 were done by the accused mostly in Mumbai and partly in Chennai. Prima facie, there is nothing in the entire complaint which 9 goes to show that any acts constituting the alleged offences were at all committed at Trichy."
9. Learned Public Prosecutor opposes the same contending that though the allegations are omnibus in nature, still, it is a matter which requires enquiry by the trial Court.
10. It is to be noted here that petitioner No.1/A-2, who is the mother of A-1, is aged about 85 years. Petitioner No.2/A-3, who is the brother-in-law of A-1 and husband of petitioner No.3, is a businessman. Petitioner No.3, who is elder to A-1, got married about 40 years back. Petitioner No.4, who is the sister of A-1, was married and residing at Nellore and presently, settled in Ongole.
Petitioner Nos.5, 6 and 7 are the brothers of A-1. They are all married and living separately in Ongole. A perusal of the averments in the charge sheet clearly disclose that no specific allegation of harassment is alleged against the petitioners, who are accused Nos.2 to 8. Except making an omnibus allegation that all of them used to harass L.W.1 and abuse her in filthy language, there is no reference to any date or month or year of the said act.
In fact, the charge sheet shows that all of them are living in different places. Hence, the question of they abusing L.W.1 or harassing her together is impossible.
11. In view of the law laid down in the judgments referred to above and having regard to the nature of allegations made, which are omnibus and vague in nature, this Court is of the opinion that continuation of proceedings against the petitioners/accused Nos.2 to 8 would be an abuse of process of law.
1012. Accordingly, this Criminal Petition is allowed quashing the proceedings against the petitioners/accused Nos.2 to 8 in C.C.No.216 of 2013 on the file of the learned Additional Judicial Magistrate of First Class, Chirala, Prakasam District.
Miscellaneous petitions pending, if any, in this Criminal Petition shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR Date : 4.9.2020 AMD 11 215 THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR CRIMINAL PETITION No.7633 of 2013 Date : 4.9.2020 AMD