Telangana High Court
Satyam Sudarshan vs The State Of Telangana on 3 August, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.1513 of 2019
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure by the petitioner - accused for quash of the proceedings against him in C.C.No.1522 of 2018 on the file of learned XII Additional Metropolitan Magistrate, Ranga Reddy District at Kukatpally registered for the offence under Sections 448, 497 and 506 of the Indian Penal Code.
2. The facts in brief as can be gathered from the record available before this Court are that the de-facto complainant, who has been working as Delivery Manager at Tata Consultancy Service Limited, Hyderabad has filed a complaint against the petitioner and five others under Section 200 of the Code of Criminal Procedure alleging that they have committed the offence punishable under Sections 383, 420, 497, 506 read with Section 34 of the Indian Penal Code. The facts of the said private complaint in brief are as under:
a) The marriage of the de-facto complainant was performed with one Priti in the year 2002. After working at different locations, the de-facto complainant and his wife started living in 2 Golf View Apartment, Nanakram Guda, Hyderabad in the year 2014. The de-facto complainant came to know that in his absence and in the absence of his children, the petitioner-
accused No.1 used to visit his house and used to have sexual intercourse with his wife. On 11.03.2014 the de-facto complainant came to know that hiss wife left along with the petitioner-accused No.1 and came back in the evening and on questioning, his wife informed that the petitioner-accused No.1 is his paramour and that he has been in sexual relationship with her at his house and hotels since 2012. The petitioner- accused No.1 was working as Vice President in Tata Communication Services Private Limited, Madhapur. During the course of discussion, the wife of de-facto complainant has also revealed that the petitioner-accused No.1 has also introduced accused Nos.2 to 6, with whom she had developed sexual relationship.
b) When the de-facto complainant has questioned all the accused, they have threatened him and also blackmailed him that they would post the nude photographs of his wife in face book and other social media and make wide publicity apart from demanding huge amount from him. The de-facto complainant had number off meetings with accused No.1 and his wife and 3 also accused Nos.2 to 6 and also with the parents of his wife and in all the meetings his wife Priti confessed that she has illicit sexual relationship with accused Nos.1 to 6. The de-facto complainant has recorded all the conversations. It is also stated in the complaint that his wife has visited Goa and Bangalore and other places and had sexual relationship with one of the accused each. Finally the complainant is filed to initiate action against them.
c) Learned Magistrate has forwarded the said complaint under Section 156 (3) of Code of Criminal Procedure to the Police concerned and in turn the Police concerned has registered a case in Crime No.186 of 2016 for the offence under Sections 448, 497 and 506 of the Indian Penal Code and issued FIR. During the course of investigation, the Police have recorded the statement of the de-facto complainant and other witnesses. The statement of maid servant of the house of the de-facto complainant, wherein the wife of de-facto complainant Priti was residing, was also recorded, wherein she has stated that the petitioner used to visit her house and the said statement is corroborating with the de-facto complainant. The statement of Security Manager of Raddission Hostel, Gachibowli was recorded, wherein he has stated that the petitioner-accused 4 No.1 and wife of de-facto complainant used to stay in the hotel. The statement of LW5 was recorded and his statement also corroborated with the statement of de-facto complainant. The Police have collected the digital voice recorder from the de-facto complainant. The petitioner-accused No.1 also appeared before the Police and confessed that he had illicit relationship with wife of de-facto complainant. On conclusion of investigation, Police have filed charge sheet against the petitioner-accused no.1 and other accused stating that in the course of investigation, if their names are released, they would file another charge sheet, which was numbered as C.C.No.1522 of 2018 on the file of learned XII Additional Metropolitan Magistrate, Ranga Reddy District at Kukatpally.
3. Aggrieved by the proceedings in C.C.No.1522 of 2018 on the file of learned XII Additional Metropolitan Magistrate, Ranga Reddy District at Kukatpally, the present criminal petition is filed by the petitioner-accused No.1 on the following grounds:
i) Section 497 of the Indian Penal Code do not attract against the petitioner-accused as the Hon'ble Supreme Court 5 has declared Section 497 of the Indian Penal Code as unconstitutional in Joseph Shine v. Union of India1.
ii) Section 448 of the Indian Penal Code do not attract against the petitioner-accused as there is no evidence.
iii) The wife of de-facto complainant was not made as one of the witnesses in the charge sheet.
4. Now the point for determination is:
"Whether the proceedings against the petitioner-accused No.1 in C.C.No.1522 of 2018 on the file of learned XII Additional Metropolitan Magistrate, Ranga Reddy District at Kukatpally, can be quashed under Section 482 of the Code of Criminal Procedure?
5. Heard Sri N.Vinesh Raj, learned counsel for the petitioner and Sri Mohd. Azhar, learned counsel for the respondent No.2 as well as learned Assistant Public Prosecutor.
6. Learned counsel for the petitioner has submitted that Section 497 of the Indian Penal Code has already been declared as unconstitutional by the Hon'ble Supreme Court and thereby case against him cannot be continued under Section 497 of the 1 (2019) 3 SCC 39 6 Indian Penal Code. In respect of other offences i.e., Sections 448 and 506 of the Indian Penal Code, there is no material against the petitioners before the Court and therefore ultimately prayed to quash the charge sheet against the petitioner.
7. On the other hand learned counsel for the respondent No.2 has submitted that entire material collected by the prosecution squarely reveal that there is strong prima-facie case against the petitioner and therefore, the case against the petitioner cannot be quashed. In respect of Section 497 of the Indian Penal Code, learned counsel for the respondent No.2 has submitted that case has been registered against the petitioner prior to declaration of section 497 of the Indian Penal Code as unconstitutional by the Hon'ble Supreme Court and therefore, the case against the petitioner shall go on and charge sheet against the petitioner cannot be quashed.
8. Charge sheet filed by the Police would reveal that the petitioner-accused No.1 and wife of the de-facto complainant have confessed that they are in sexual relationship since 2012 onwards and evidence collected in the form of other witnesses would also go to show that the petitioner used to visit the house of the de-facto complainant in his absence and in the absence of 7 children. Not only that the de-facto complainant used to spend time along with the petitioner in the hotels also in the cars and other places and used to have sexual intercourse.
9. However, it is to be noted that the Hon'ble Supreme Court has declared Section 497 of the Indian Penal Code as unconstitutional in Joseph Shine v. Union of India (supra), which was decided on 27.09.2018. It is contended by the learned counsel for the respondent No.2 that this case was registered prior to 27.09.2018 and thereby the proceedings against the petitioner for the offence under Section 497 of the Indian Penal Code cannot be quashed. As per the record before the Court, the trial Court has taken cognizance of the case against the petitioner on 09.05.2018, which means the cognizance was taken against the petitioner prior to declaration by the Hon'ble Supreme Court that Section 497 of the Indian Penal Code as unconstitutional. Therefore, now the question arises as to whether the declaration of Section 497 of the Indian Penal Code as constitutional on 27.09.2018 applies to the cases, which are already pending.
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10. The Hon'ble Supreme Court has decided in Major General A.S.Gauraya and another v. S.N.Thakur2 that declaration of law by the Hon'ble Supreme Court applies to all the pending proceedings even with retrospective effect. Therefore, on considering the above authority of the Hon'ble Supreme Court, even though Section 497 of the Indian Penal Code was declared as unconstitutional on 27.09.2018, still it is applicable to the cases, which are pending even as on that date. Further, the High Court of Punjab and Haryana in a decision rendered on 28.02.2019 between Chetan Kumar v. State of Punjab and others3 ruled that striking down of Section 497 of the Indian Penal Code as unconstitutional on 27.09.2018 in case of Joseph Shine v. Union of India (supra) as constitutional being voilative of Articles 14, 15 and 21 of the Constitution of India also applies to the cases which are pending. Similarly in Criminal Revision Petition No.1081 of 2013 the High Court of Jharkand at Ranchi also held that declaration of Section 497 of the Indian Penal Code as unconstitutional in Joseph Shine v. Union of India (supra) also applies to the pending cases.
11. Considering the above discussion and principle laid down in the above said authorities, the law laid down by the Apex 2 (1986) 2 SCC 709 3 2019 0 Supreme (P & H) 221 9 Court in Joseph Shine v. Union of India (supra) also applies to the case on hand. Therefore, the proceedings against the petitioner cannot be permitted to proceed against the petitioner for the offence under Section 497 of the Indian Penal Code.
12. It is also alleged that the petitioner has committed other offences i.e., Sections 448 and 506 of the Indian Penal Code. It is contended by the learned counsel for the petitioner that there is no material against the petitioner that he has trespassed and criminally intimidated.
13. It is the contention of the learned counsel for the respondent No.2 that the statement of de-facto complainant and other witnesses recorded by the Police reveal that the petitioner- accused No.1 used to visit the house of the de-facto complainant when the wife of de-facto complainant was alone. Similarly when the de-facto complainant has questioned the petitioner-accused No.1, the petitioner stated to have threatened the de-facto complainant with dire consequences that he would post the nude photographs of his wife in face book and other social media and make wide publicity apart from demanding huge amount from him. Therefore, when there is such strong positive evidence, it cannot be said that there is no material 10 against the petitioner to proceed for the offence under Sections 448 and 506 of the Indian Penal Code. It is for the trial Court to examine the de-facto complainant and other witnesses to give a finding for the offences under Sections 448 and 506 of the Indian Penal Code against the petitioner. Therefore, basing on the material available before the Court, there is strong prima- facie case against the petitioner proceed against him for the offences under Sections 448 and 506 of the Indian Penal Code.
14. In view of the above facts and circumstances, it is a fit case to quash the proceedings against the petitioner-accused No.1 for the offence under Section 497 of the Indian Penal Code. However, in respect of offences under Sections 448 and 506 of the Indian Penal Code, there is prima-facie material, hence, the case against the petitioner-accused No.1 for the said offences cannot be quashed.
15. Accordingly, the Criminal Petition is allowed in part by quashing the proceedings against the petitioner-accused No.1 for the offence under Section 497 of the Indian Penal Code in C.C.No.1522 of 2018 on the file of learned XII Additional Metropolitan Magistrate, Ranga Reddy District at Kukatpally. The criminal petition to the extent of quashing the proceedings 11 against the petitioner for the offence under Sections 448 and 506 of the Indian Penal Code is dismissed.
As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 03.08.2022 AS