Andhra Pradesh High Court - Amravati
Gugulothu Ravindar Naik, vs The State Of Andhra Pradesh, on 2 September, 2022
Author: K. Sreenivasa Reddy
Bench: K. Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
CRIMINAL PETITION NO.7191 OF 2021
ORDER :
This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), is filed to quash the proceedings in C.C.No.1808 of 2020 on the file of the V Additional Judicial Magistrate of First Class, Rajamahendravaram, registered for the offences punishable under Sections 417 and 354D of the Indian Penal Code, 1860 (for short, 'IPC'). Petitioner herein is sole accused in the said case.
2. On the strength of a report lodged by 2nd respondent herein, police registered a case in crime No.58 of 2000 of II Town L&O police station, Rajamahendravaram and after completion of investigation, laid charge sheet, which was registered as the aforesaid C.C. The allegations, in brief, may be stated as follows.
In the year 2018, 2nd respondent/defacto complainant got a seat in NIT at Raipur. Her mother approached father of petitioner/accused to verify as to how to join in NIT and to pursue her studies. Later, her mother telephoned the petitiner/accused and asked him about the procedure of joining in NIT. On that, the petitioner/accused stated that she could not understand and asked her to tell her 2 daughter to speak to him. When 2nd respondent telephoned him, the petitioner/accused told her the procedure to study in NIT. Thereafter, the petitioner/ accused developed acquaintance with 2nd respondent and often used to tell 2nd respondent that they belong to same caste. One day, petitioner/accused telephoned to her and stated that he saw her photo and loves her very much, and would marry her and he cannot live without talking to her. One day, the petitioner/accused went to Raipur and telephoned to her and asked her to come outside, and thereafter, they both went outside and spent time from morning to evening. After return from Raipur, petitioner/ accused used to make video calls and speak to 2 nd respondent with alluring words and asked her to come with him alone. 2nd respondent agreed to go with petitioner/ accused and asked him not to tell her parents. The petitioner/accused requested her not to tell her parents. When 2nd respondent went to her house for Dasara holidays, marriage proposals came to her and the bridegroom photo was shown to her. When she telephoned to the petitioner/accused, her mother observed the same and asked her about the phone call. On that, she narrated the facts as to what transpired between her and the petitoner/ accused. Later, her parents asked the petitioner/accused to marry 2nd respondent, but the 3 petitioner/accused refused to marry her on some pretext or the other. Therefore, 2nd respondent resorted in filing the present report stating that with his alluring words, she had fallen in love with him but he refused to marry her. Basing on the same, police registered the aforesaid case and filed charge sheet after completion of investigation.
3. Learned counsel for the petitioner contended that even accepting the entire accusations to be true, still the offences alleged would not attract as against the petitioner for the reason that there is no dishonest intention on the part of the petitioner/accused to cheat 2nd respondent/ defacto complainant and that a clear indication of disinterest on the part of 2nd respondent was absent on her part.
4. On the contrary, learned counsel for 2nd respondent contended that going by the averments contained in the charge sheet would make out a prima facie case for the offences punishable under Sections 417 and 354 D IPC since the petitioner/accused lured 2nd respondent/ defacto complainant and by virtue of the deceitful words made by the petitioner/accused, she had fallen in love with him and thereafter, the petitioner/accused refused to marry her.
5. The learned Assistant Public prosecutor appearing for 1st respondent-State concurred with the contentions 4 advanced by the learned counsel for 2nd respondent and opposed the quashing of the impugned proceedings stating that in order to arrive at the correctness or truthfulness, it is essential that trial has to take place wherein truth will be culled out.
6. There cannot be any dispute that inherent powers of this Court under Section 482 CrPC can be exercised to prevent abuse of process of Court or to give effect to any order under the code or to secure the ends of justice.
7. This Court is also conscious of the fact that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases and that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the report. On this aspect, it is pertinent to refer to the judgment of the Hon'ble Apex court in State of Haryana Vs. Ch.Bhajanlal and ors.1, wherein the Apex Court held, "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the 1 AIR 1992 SC 604 5 following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code; (3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent 6 person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8. Perused the record.
9. Admittedly, petitioner/accused is a senior in the college to 2nd respondent. They belong to same place. They got acquaintance because mother of 2nd respondent and also 2nd respondent called the petitioner/accused to help her in joining NIT College and pursue studies in the college. Thereafter, both started talking to each other. On one day, when the petitioner/accused proposed her to come outside with him, 2nd respondent did not refuse for the same and she went along with petitioner/accused and they both spent time from morning to evening. When marriage proposals came for 2nd respondent, as she was interested in the petitioner/accused, she proposed for the 7 marriage with the petitioner/accused, but he refused to marry her. Hence, she filed the present case.
10. Section 417 IPC prescribes punishment for cheating. Section 415 IPC defines 'cheating. The essential elements to attract the offence of cheating are -
"(1) Deception of any person;
(2) (a) Fraudulently or dishonestly inducing that person-
(i) to deliver any property to any person; or
(ii)to consent that any person shall retain property; or
(b) Intentionally inducing that person to do or omit to do anything which he would not do or omit, if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property."
First part of the offence of cheating would relate to property and second limb of the provision would not relate to the property. That the person should intentionally induce the complainant to do or omit to do a thing. In the second part inducing must be intentional and a guilty intention is essential ingredient for the offence of cheating.
11. Section 354D IPC deals with 'Stalking'. According to Section 354 D IPC, "(1) Any man who- (i) follows a woman and contacts, or attempts to contact such woman to foster 8 personal interaction repeatedly despite a clear indication of disinterest by such woman; or (ii) monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking.
12. In the judgment dated 09.12.2021 in Criminal Appeal No.119 of 1999 in Kashinath Narayan Gharat v. State of Maharashtra rendered by the High Court of Bombay, it is held thus: (paragraph 9) "In the instant case, the evidence on record indicates that the prosecutrix and the accused were known to each other. They had indulged in sexual relationship for a period of over three years. The evidence of PW1- prosecutrix does not indicate that she had sexual relationship with the accused under misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception accused did not intend to marry her. In the absence of evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC."
In Pramod Suryabhan Pawar v. State of Maharashtra and another2, it is held thus: (paragraphs 18 and 21) "To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception 2 (2019) 9 SCC 608 9 of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred."
13. In the case on hand, the averments contained in the charge sheet would go to show that the petitioner/accused and 2nd respondent/defacto complainant were only exchanging messages and on one day they both had gone out to spend time from morning to evening. It is not the 10 case of 2nd respondent that the petitioner/accused had any sexual intercourse or has taken advantage of the situation there. There is absolutely no averment in either the First Information Report or statements under Section 161 CrPC or charge sheet.
14. There is absolutely no averment that that the petitioner/accused had any sexual relationship on misconception of fact, as stipulated under Section 90 IPC. Mere refusal to marry her would not constitute the offence punishable under Section 417 IPC.
15. A perusal of Section 354D IPC would go to show that any man who follows a woman and contacts or tries to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman. The main ingredient in the above provision would go to show that despite the fact that the woman is disinterested, if the man goes on wooing her or keeps on sending messages against her will, then the offence under Section 354 D IPC would attract as against the said person.
16. In the case on hand, there is absolutely no such accsuation. It is, in fact, 2nd respondent/defacto complainant is the person who called up the petitioner/ accused. Thereafter, whenever the accused was sending 11 messages or making calls to her, she was responding to the same without showing any inclination of disinterest. Apparently, going by the contents in the charge sheet, it would go to show that 2nd respondent/defacto complainant was very much interested. She goes to the extent of stating that she had fallen in love with petitioner/accused. 'Disinterest' has been defined as 'detachment and lack of interest'. But, as per the averments contained in the charge sheet, it goes to show that 2nd respondent/ defacto complainant presented the complaint for the reason that the petitioner/accused refused to marry her. When such is the situation, question of stalking would not arise.
17. In view of the foregoing discussion, this Court is of the considered opinion that even if the entire allegations in the First Information Report, statements of witnesses under Sections 161 CrPC and the charge sheet are taken as true and correct, no prima facie case for the offences punishable under Sections 417 and 354D IPC is made as against the petitioner/accused. The case on hand falls under guideline No.3 as laid down in Bhajanlal's case (1 supra). Hence, continuation of the impugned proceedings agaisnt the petitioner is nothing but abuse of process of Court. 12
18. In the result, the Criminal Petition is allowed and the proceedings in C.C.No.1808 of 2020 on the file of the V Additional Judicial Magistrate of First Class, Rajamahendravaram are quashed.
Miscellaneous Petitions, if any, pending in this Criminal Petition, shall stand closed.
___________________________________ JUSTICE K. SREENIVASA REDDY .08.2022.
DRK 13 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.7191 OF 2021 .08.2022 DRK