Andhra HC (Pre-Telangana)
A.Vidya Sagar vs The State Of A.P., Rep. By Its Public ... on 12 September, 2014
Author: K.G.Shankar
Bench: K.G.Shankar
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.4105 of 2013
12-9-2014
A.Vidya Sagar Petitioner/Respondent
The State of A.P., Rep. by its Public Prosecutor, High Court of A.P.,
Hyderabad; and another Respondents
Counsel for the Petitioner:Sri P.Veerraju
Counsel for Respondent No.1: Public Prosecutor,
High Court, Hyderabad
Counsel for Respondent No.2: Sri S.Tulasi Das
<Gist:
>Head Note:
? Cases referred:
1. 1992 Supp (1) SCC 335
2. (2009) 9 SCC 682
3. (2006) 6 SCC 736
4. AIR 2011 SC 479
5. AIR 1999 AP 19(1)
HONBLE Dr. JUSTICE K.G.SHANKAR
Criminal Petition No.4105 of 2013
Date: 12-9-2014
Order:
The petitioner is the sole respondent in D.V.C.No.40
of 2012 on the file of the IV Metropolitan Magistrate,
Yerram Manzil, Hyderabad. It was a petition filed by the
2nd respondent. The petitioner seeks for the quashment
of D.V.C.No.40 of 2012 on various grounds.
2. The 2nd respondent sought compensation of
Rs.50 lakhs from the petitioner, maintenance at
Rs.50,000/- per month, residential order for shelter and
protection order under Section 12 of the Protection of
Women from Domestic Violence Act, 2005 (the D.V. Act,
for short). The petitioner is a senior IAS Officer. He is
presently working as Principal Secretary, Tribal Welfare
Department, Government of Andhra Pradesh. His wife is
also said to be a senior IAS Officer. The pair has two
children.
3. The 2nd respondent submitted a petition to the
Protection Officer cum Project Director, District Women
and Child Development Agency, Nampally, Hyderabad
against the petitioner herein. In the representation
describing it to be the complaint, the 2nd respondent
portrayed the petitioner as her husband. She claimed:
(a) The 2nd respondent herein worked as a publisher
and earned good reputation in the society. She came to
know the petitioner on account of her pursuit of Telugu
Literature. The petitioner developed intimacy with the
2nd respondent. He allegedly sought solace in the
company of the 2nd respondent on the ground that he did
not have happy conjugal life with his wife.
(b) The petitioner spent much of his time with the
2nd respondent. The petitioner proclaimed before the
2nd respondent that on account of some personal
obligations and entangles, he had been living with his
wife and that he was contemplating to divorce her at an
appropriate time. He also promised that he would
introduce the 2nd respondent as his wife to public after
his divorce with his wife. The 2nd respondent proclaimed
that she purchased agricultural properties at Kanigiri,
Prakasam District along with the petitioner and other.
When the petitioner borrowed agricultural term
loan from Andhra Bank, Sitarampuram Branch,
Hanumanthunipadu Mandal, Prakasam District, the
petitioner stood as co-obligant. The petitioner and the
2nd respondent cohabited together happily.
(c) The wife of the petitioner purchased
Ac.12-00 cents of land in the name of her mother,
Smt. K.Vimala Bai. The wife of the petitioner started
sending threatening and annoying messages to the
2nd respondent. Although the 2nd respondent forwarded
the messages to the petitioner, the petitioner evinced no
interest in dispelling the apprehensions of the
2nd respondent. The 2nd respondent claimed that the
petitioner and she regularly stayed at the house of the
2nd respondent situate in the First Floor, Mulk Villa,
Plot No.8, Road No.13, Banjara Hills, Hyderabad.
The petitioner used to resort to threatening the
2nd respondent with dire consequences on the one side
and also emotionally blackmailing the 2nd respondent on
the other side declaring that he would commit suicide if
the 2nd respondent reveals her relationship with the
petitioner. The petitioner subjected the 2nd respondent to
immense mental turmoil and anguish. Emboldened by
the attitude of the petitioner, his wife also started
threatening and intimidating the 2nd respondent through
phone calls.
(d) The petitioner got defamatory propaganda
against the 2nd respondent by printing, publishing and
circulating pamphlets with captions like Maya Lady
Bommisetti Vatsala and referred the 2nd respondent as
a land-grabber, cheat, criminal, blackmailer and
characterless woman. The 2nd respondent is not able to
effectively pursue her business or move in the society on
account of the high influence of the petitioner in the
society. In this background, she claims maintenance at
Rs.50,000/- per month, monetary compensation at
Rs.50 lakhs, residential order for shelter and protection
order.
(e) This is the gist of the complaint.
4. The petitioner seeks for the quashment of the
case in D.V.C.No.40 of 2012 on various grounds.
He primarily contended that the 2nd respondent is an
immoral lady and acquired assigned lands misusing the
name of the petitioner and his wife. As the petitioner
directed the Revenue authorities to take appropriate
action against the 2nd respondent, she lodged Crime
No.10 of 2011 under Section 436 IPC alleging that the
petitioner committed arson. After due investigation,
Police filed a referred charge-sheet recording that the
complaint was false.
5. It is contended by the petitioner that the
2nd respondent filed a false complaint against the
petitioner under Sections 507 and 506(2) IPC before the
Court, which was referred by the Court under
Section 156(3) Cr.P.C to Police. Hanumanthunipadu
Police Station registered the same as First Information
Report Report (FIR) in Crime No.2 of 2011. Further
proceedings of the same have been stayed through orders
of this Court in Criminal Petition No.2308 of 2011.
6. The petitioner contended that the 2nd respondent
has the habit of sending false and defamatory complaints
and mails against him, so much so, the petitioner and
his wife filed a complaint before the Court, which, on the
reference under Section 156(3) Cr.P.C by the learned
Magistrate was registered as Crime No.197 of 2011 on
the file of Central Crime Station, Hyderabad on
07-7-2011 against the 2nd respondent and two others for
the offences under Section 66-A of the Information
Technology Act, 2008 and under Sections 120-B,
182 and 384 read with Sections 511, 506 and 507 IPC.
Accused No.2 was arrested in connection with that case.
The case is pending as on today.
7. The petitioner claimed that he came to know that
Nallakunta Police Station registered a case against the
2nd respondent on a complaint by 3rd parties for the
offences under Sections 506 and 507 IPC. The same is
also pending. FIR in Crime No.67 of 2012 on the file of
Sultan Bazar Police Station was registered on the
complaint of the 2nd respondent for the offences under
Sections 182, 406, 420, 468 and 471 read with
Section 120-B, IPC through FIR dated 02-3-2012 against
personalities like Dr. C.Narayana Reddy, Sri K.Raju, IAS,
Additional Secretary and National Advisory Council,
Government of India and others the complaint being
lodged through her agent, by name A.Venkata Ramana.
Police, however, closed the FIR after due investigation,
recording that the complaint was false.
8. The petitioner submitted that the 2nd respondent
is claiming as if she is the wife of the petitioner with
a view to defame with the mala fide intention to make the
petitioner to succumb to her pressure and that the very
complaint is not maintainable and is liable to be
dismissed.
9. The learned counsel for the petitioner also
submitted that the Protection Officer forwarded the
complaint to the IV Metropolitan Magistrate, Yerram
Manzil, Hyderabad in a routine manner without Domestic
Information Report (DIR) and without complying with the
provisions of the D.V. Act. He submitted that taking
cognizance of the case on the basis of such a complaint is
illegal and is liable to be quashed.
10. The learned counsel for the petitioner advanced
exhaustive arguments. He argued for more than
2 hours. Perhaps if it becomes necessary for a party or
his counsel to take 2 hours to explain about the prima
facie falsity of the complaint, the very petition for
quashment would be fit to be dismissed in limine.
It is trite law that in a petition for quashment the Court
cannot go into intrinsic details and shall determine
whether a case is made out prima facie or otherwise.
I consider that if the nature of the allegations is such
that at once the allegations are shockingly unbelievable
or even if the contents are all true, the contents of the
complaint would not constitute any triable offence,
Court should interfere under the provisions of
Section 482 Cr.P.C to quash the case. The leading
authority on this issue is the now famous STATE OF
HARYANA v. BHAJAN LAL . It would be convenient to
extract para 102 of the judgment. Para 102 reads:
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 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 channelised
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 and other materials, if any,
accompanying the FIR 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 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
proceeding 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.
11. It is the contention of the learned counsel for
the petitioner that even if the allegations made in the FIR
are accepted at their face value, no prima facie case is
made out and that as one of the grounds envisaged by
BHAJAN LAL (1 supra) has been made out, the case in
DVC deserves to be quashed. He also contended that the
allegations made in the complaint are absurd and
inherently improbable on the basis of which no prudent
person would reach a conclusion that the petitioner is
guilty and that as the ground envisaged in Clause (5) of
para 102 of BHAJAN LAL (1 supra) is made out, the case
in DVC deserves to be quashed. He also submitted that
the criminal proceedings were manifestly malicious and
were instituted with an ulterior motive to wreak
vengeance against the petitioner, the case in DVC is
liable to be quashed. Such situation warranted
interference by the Court vide BHAJAN LAL (1 supra)
(para 102, Clause (7)).
12. The learned counsel for the petitioner relied
upon M.N. OJHA v. ALOK KUMAR SRIVASTAV .
The Supreme Court noticed in this case:
30. the High Court cannot refuse to exercise
its jurisdiction if the interest of justice so required
where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of
which no fair minded and informed observer can ever
reach a just and proper conclusion as to the existence
of sufficient grounds for proceeding. In such cases
refusal to exercise the jurisdiction may equally result
in injustice more particularly in cases where the
complainant sets the criminal law in motion with
a view to exert pressure and harass the persons
arrayed as accused in the complaint.
13. Some of the principles enunciated in BHAJAN
LAL (1 supra) were repeated in para 12 of INDIAN OIL
CORPN. v. NEPC INDIA LTD. relying upon the earlier
decisions of the Supreme Court. On the basis of these
decisions and on the basis of the available facts,
it is contended by the learned counsel for the petitioner
that this false case against the petitioner deserves to be
quashed.
14. Inter alia, the learned counsel for the petitioner
contended that the petitioner is a hapless Government
Servant pitting against an unscrupulous lady.
On the other hand, I consider that the petitioner being
a senior IAS Officer and his wife also being a senior IAS
Officer have much more power to wield against an
individual, who is neither rich nor otherwise powerful as
it is not the case of anybody that the 2nd respondent
possesses political influence or financial backing.
However, whether the petitioner is powerful or the
2nd respondent is a Titan is beside the point since the
question is whether the case in DVC is liable to be
quashed.
15. The learned counsel for the petitioner raised two
legal questions viz., whether a DVC case would lie
against an individual by a person other than his wife and
whether D.V.C.No.40 of 2012 could validly be taken
cognizance of by the learned IV Metropolitan Magistrate,
Yerram Manzil, Hyderabad without DIR.
16. Section 2(a) of the D.V. Act defines aggrieved
person as any woman who is, or has been, in a domestic
relationship with the respondent. Section 2(f) of the
D.V. Act defined domestic relationship. Section 2(f) of
the D.V. Act reads:
domestic relationship means a relationship between
two persons who live or have, at any point of time,
lived together in a shared household, when they are
related by consanguinity, marriage, or through
a relationship in the nature of marriage, adoption or
are family members living together as a joint family.
A plain reading of Section 2(f) of the D.V. Act shows
that domestic relationship is a relationship between two
persons who lived or have, at some time lived, inter alia,
in a shared house when they were related through
a relationship in the nature of marriage.
The 2nd respondent contended that she and the petitioner
have intimacy with each other, so much so, the petitioner
wanted to marry the 2nd respondent and the
2nd respondent was willing for the marriage with the
petitioner.
17. Added to it, the 2nd respondent contended in the
complaint to the Protection Officer that the petitioner
who used to regularly stay with me (the 2nd respondent)
at our house at First Floor, Mulk Villa, Plot No.8,
Road No.13, Banjara Hills, Hyderabad started
occasionally visiting me and on the one hand he used to
pick up quarrel on one aspect or the other and even used
to manhandle and threaten me that he would kill me and
see that even my dead body will not be available and on
the other hand, he used to emotionally blackmail me
stating that if I disclose about our relationship, he would
commit suicide as his name would be tarnished.
Thus, the 2nd respondent fairly spoke that the petitioner
and the 2nd respondent lived in a shared house through
a relationship in the nature of marriage.
18. The learned counsel for the petitioner placed
reliance upon D.Velusamy v. D.Patchaiammal where
relationship in the nature of marriage was examined by
the Court. In para 33 of the judgment, the Court held
that although there was no formal marriage,
(1) the couple must hold themselves out to society as
spouses, (2) they must be of legal age to marry,
(3) they must be otherwise qualified to enter into a legal
marriage, including being unmarried and (4) they must
be voluntarily cohabited and held themselves out to the
world as being akin to spouses for a significant period of
time. That the petitioner and the 2nd respondent were of
marriageable age is not in dispute. Regarding conditions
1 and 4 that the couple must have described themselves
to the society to be spouses or akin to spouses, there is
no allegation from the 2nd respondent that the petitioner
exhibited the 2nd respondent as his 2nd wife.
On the other hand, she contended that the petitioner was
emotionally blackmailing her not to reveal their
relationship. The learned counsel for the petitioner
submitted that the condition of relationship in the nature
of marriage thus has not been made out.
19. The learned counsel for the petitioner also
submitted that by the date of the alleged cohabitation
between the petitioner and the 2nd respondent, the
2nd respondent had already had a living spouse and that
as she did not divorce her spouse, she could not be said
to be in domestic relationship with the petitioner in the
nature of marriage. The learned counsel for the
petitioner tried to show that the 2nd respondent had
contacted marriage with another person. The record
however did not show whether the 2nd respondent was
earlier married and if so, whether the earlier marriage of
the 2nd respondent has been subsisting. At any rate,
the petitioner admittedly is a married person.
Thus, he would fall within Clause (3) of the conditions
envisaged in para 33 of D.Velusamys case (4 supra) that
the parties must be qualified to enter into legal marriage
including enjoying the status of not being married.
20. The Supreme Court in D.Velusamys case
(4 supra) went further to state that spending weekends
together or one night stand would not make it a domestic
relationship. It is contended by the learned counsel for
the petitioner that assuming that the contentions of the
2nd respondent are true, there is no domestic relationship
between the petitioner and the 2nd respondent.
The 2nd respondent contended that the petitioner used to
visit her house at Banjara Hills, Hyderabad frequently.
She did not state that their relationship was a weekend
affair or once in a lifetime contact. I therefore do not
consider that the petitioner and the 2nd respondent
satisfy the condition that they have been together for
more periods than simple weekends or at one night.
However, it predominantly is a question of fact.
I am afraid in a petition under Section 482 Cr.P.C., the
question of fact and the truth and genuineness of the fact
situation cannot be gone into.
21. The case of the 2nd respondent is that the
petitioner has domestic relationship with her and caused
domestic violence. She consequently claimed the reliefs
envisaged by the D.V. Act.
22. I may now examine whether the case fits in any
of the clauses of para 102 of BHAJAN LAL (1 supra).
The first clause of para 102 of BHAJAN LAL (1 supra)
envisages that even if the complaint is accepted at its
face value as true, if no offence could still be made out,
it would be a good ground for the High Court to interfere
under Section 482 Cr.P.C. In the present case, if the
contentions of the 2nd respondent are accepted at their
face value, it would be established that the petitioner and
the 2nd respondent have/had living relationship and that
the petitioner now disowns the 2nd respondent entitling
her to make a claim against him. Consequently, the
present case does not fall within the parameters provided
by the first clause in BHAJAN LALs case (1 supra).
23. It was also observed in BHAJAN LAL (1 supra)
that if the allegations are absurd and are inherently
improbable, it would be a ground to quash the
prosecution. I am afraid that there is nothing absurd
about the claim of the 2nd respondent, albeit whether the
claim is true or otherwise is a different question.
If the criminal proceedings are attended with mala fides
or where the proceedings were instituted maliciously,
it would be a fit case for quashment according to the
7th condition mentioned in BHAJAN LAL (1 supra).
Although the learned counsel for the petitioner contended
that the claim of the 2nd respondent is mala fide,
I am afraid that mala fides cannot be assumed or proved
merely because the petitioner has already a legally
wedded wife or because the 2nd respondent has been
residing elsewhere and has otherwise described herself to
be the daughter of B.Reddappa rather than as the wife of
the petitioner herein.
24. In BHAJAN LAL (1 supra), the Court suggested
that if there is an express legal bar in any of the
provisions of the Code or the concerned Act, it would be
appropriate to quash the proceedings. The learned
counsel for the petitioner contended that there was no
DIR, so much so, the claim is not maintainable even if
the other contentions of the 2nd respondent are true.
25. Section 9 of the D.V. Act prescribes the duties
and functions of a Protection Officer. Section 9(1)(b) of
the D.V. Act adumbrates that the Protection Officer shall
make a Domestic Incident Report to the Magistrate and
also forward copies to the police officer in charge of
a police station. Section 12 of the D.V. Act envisages
that an aggrieved person or a Protection Officer under the
D.V. Act or any other person on behalf of the aggrieved
person may present an application to the Magistrate
seeking the reliefs envisaged under the D.V. Act. Proviso
to Section 12(1) of the D.V. Act contemplates that before
passing any order on the application from an aggrieved
person or a Protection Officer or any other person, the
Magistrate shall take into consideration any Domestic
Incident Report received by him from the Protection
Officer or the service provider.
26. The learned counsel for the petitioner submitted
that a Magistrate is entitled to proceed with under
Section 12 of the D.V. Act on the basis of Domestic
Incident Report given under Section 9(1)(b) of the
D.V. Act by the Protection Officer and that the cognizance
of the case cannot be taken otherwise. He submitted
that Section 9(1)(b) of the D.V. Act shall be read with the
proviso to Section 12(1) of the D.V. Act.
27. Even a reading of the two provisions leads to
an inescapable conclusion that in the event there is any
Domestic Incident Report, the Magistrate shall take into
consideration such report. Section 12(1) of the D.V. Act
does not prohibit a Magistrate from proceeding with the
case unless there is a Domestic Incident Report.
The words used in proviso to Section 12(1) of the D.V. Act
are any Domestic Incident Report and not the
Domestic Incident Report. Thus, the proviso to
Section 12(1) of the D.V. Act contemplates that in the
event there is a Domestic Incident Report, the Magistrate
shall take it into consideration. If there is no Domestic
Incident Report, the question of the Magistrate
considering the same does not arise. Needless to state
that Section 12 of the D.V. Act does not contemplate that
the petition under Section 12 of the D.V. Act would not
lie without any Domestic Incident Report. I do not agree
with the contention of the learned counsel for the
petitioner that a Domestic Violence Case can be
instituted and taken cognizance of on the basis of the
Domestic Incident Report only and not otherwise.
Such a contention is not sustainable and is accordingly
rejected.
28. The learned counsel for the petitioner tried to
show that the 2nd respondent is not a wife of the
petitioner within the meaning of the Hindu Marriage Act.
There cannot be any doubt that the 2nd respondent
cannot be the wife as long as the marriage of the
petitioner with his wife is subsisting. However, whether
the 2nd respondent is entitled to maintenance and other
reliefs sought for under Section 12 of the D.V. Act are
matters to be considered in D.V.C.No.40 of 2012 and not
in this petition.
29. The learned counsel for the petitioner placed
reliance upon a Full Bench decision of this Court in
Abbayolla M. Subba Reddy v. Padmamma . In that
case, this Court observed that Section 25 of the Hindu
Marriage Act cannot be invoked to grant permanent
alimony to a woman who is not a legally wedded wife.
However, under the D.V. Act, any lady who has domestic
relationship with a man is entitled to seek certain reliefs
from such a man. This decision of the Full Bench of the
Andhra Pradesh High Court consequently has no
application for cases under the D.V. Act.
30. The learned counsel for the petitioner placed
reliance upon M.N. OJHA (2 supra). The Court held that
if the dispute is in respect of a civil remedy or where the
intention of the criminal proceedings is to prevent the
public servant from discharging his duties, such
complaints deserve to be quashed. In the present case,
the D.V. Act provides the reliefs sought for by the
2nd respondent. The petitioner failed to show at this
stage that the complaint is motivated. I therefore
consider that this is not a fit case where D.V.C.No.40 of
2012 deserves to be quashed at this stage. It would be
appropriate for the petitioner to raise his contentions
before the Trial Court and seek appropriate relief from
the Trial Court. I see no merits in this petition.
This petition deserves to be dismissed.
31. Where the petitioner is claimed to be a senior
IAS Officer and where the petitioner is denying domestic
relationship with the 2nd respondent, it would be
appropriate to exempt the petitioner from making
appearance before the Trial Court at the time of trial.
32. Accordingly, this criminal petition is disposed of
granting liberty to the Trial Court to proceed with the
trial of D.V.C.No.40 of 2012. The presence of the
petitioner before the Trial Court is dispensed with.
The Trial Court, however, is at liberty to call for the
personal appearance of the petitioner on any occasion
if the Trial Court deems it necessary that the petitioner
be present for proper conduct of the case.
The miscellaneous petitions, if any, pending in this
petition shall stand closed.
_____________________
Dr. K.G.SHANKAR, J.
12th September, 2014.