Telangana High Court
Mohd. Abdul Nayeem And 7 Others vs The State Of Telangana And Another on 6 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.9941 OF 2021
ALONG WITH I.A. Nos.1 AND 2 OF 2021
AND
CRIMINAL PETITION No.539 OF 2022
ALONG WITH I.A. Nos.1 AND 2 OF 2022
COMMON ORDER:
Crl.P. No.9941 of 2021 is filed under Section - 482 of the Code of Civil Procedure, 1973, to quash the proceedings in S.C. No.325 of 2021 on the file of I Additional Metropolitan Sessions Judge, Hyderabad, while Crl.P. No.539 of 2022 is filed to quash the proceedings in C.C. No.4233 of 2019 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad.
2. Both the aforesaid cases arise out of one and the same crime i.e., Crime No.149 of 2015 of Women Police Station, South Zone, Hyderabad City Commissionerate. The petitioners in Crl.P. No.9941 of 2021 are also the petitioners in Crl.P. No.539 of 2022, and so also respondent No.2. In order to avoid confusion, the parties in Crl.P. No.9941 of 2021 will be hereinafter referred to as the parties.
2
KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022
3. The petitioners herein are arraigned as accused Nos.1 to 8 in S.C. No.325 of 2021 and also in C.C. No.4233 of 2019, and both the proceedings arise out of one and the same Crime No.149 of 2015. Respondent No.2 herein is the de facto complainant. She is the wife of petitioner No.1. Petitioner Nos.2 and 3 are the parents of petitioner No.1; petitioner Nos.4 and 5 are the brothers of petitioner No.1. Petitioner No.6 is the wife of petitioner No.4, while petitioner Nos.7 and 8 are their children. Originally, the offences alleged against the petitioners herein are under Sections - 498A and 506 of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961.
4. Respondent No.2 herein filed a private complaint under Section - 200 of the Cr.P.C. before the XV Additional Chief Metropolitan Magistrate, Hyderabad, against the petitioners alleging that her marriage with petitioner No.1 was performed on 20.02.1997 as per Muslim Customs. Her parents gave net cash of Rs.1.00 lakh as dowry, gold jewellery worth 20 tolas and costly furniture, electronic items etc. to the parents of accused No.1. Her parents incurred about Rs.10.00 lakhs towards marriage dinner 3 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 expenses. After the marriage, respondent No.2 lived at her marital house happily for a month and, thereafter, disputes arose between her and petitioner No.1 herein. They blessed with three children, viz., two sons and one daughter.
i) It is also alleged that on 07.03.2009, the parents of respondent No.2 had given the share (Matruka) of Rs.8.00 lakhs to her out of her mother's property family settlement, and with the said amount, she had purchased 30 tolas of gold jewellery and open plot at Hyderabad and the remaining cash of Rs.2.00 lakhs was deposited at her account at Canara Bank, Mozamjahi Market Branch, Hyderabad.
ii) It is also alleged that soon after the marriage, she was harassed by her husband and his family members day and night.
The husband of respondent No.2 and his family members started harassing her mentally and physically for want of additional dowry of Rs.2.00 lakhs for expansion of their business and even beaten her on petty issues. Due to continuous harassment and force by her husband, respondent No.2 had withdrawn the above articles from the bank and gave to her husband. Again after three months, her 4 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 husband compelled her to bring further Rs.10.00 lakhs as he intends to open a new shop. When she expressed her inability, her husband and in-laws tortured her physically and mentally. Even her husband threatened her that he would divorce her and even started treating her as house maid and not allowed to speak to her mother and brother even on phone. The other accused also started harassing her. Accused No.6 developed close intimacy with her husband and started physical relationship with him from the date of her (accused No.6) husband fell sick due to some ailments.
iii) It is also alleged in the complaint that on the wee hours on 04.03.2014, respondent No.2 caught her husband red handedly with accused No.6 and raised her voice. Then, she was locked in the bedroom till 05.03.2014 morning. On 05.03.2014, accused No.1 and his family members started quarelling with her for additional dowry. When she expressed her inability, her parents-in- law instigated accused No.1 and others to kill her. However, she could manage to escape by promising to get the amount and reached Mirchowk Police Station on the same condition and lodged a complaint against her husband and in-laws. The Police sent her 5 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 to Osmania General Hospital, where she was treated under MLC Case. On 05.03.2014, accused No.1 in collusion with Police, Mirchowk requested her brother to withdraw the complaint and he promised that he would not harass her in future. Believing the same and at the intervention of elders and family members, she had withdrawn the said complaint. But, her husband did not allow her to enter into the house and he threatened that he would file false criminal case against her and her family members, if she does not bring the said additional dowry amount. On 05.03.2014, respondent No.2 and her daughter are staying with her mother and brother as her husband forcibly kept her two sons with him and necked out her from the matrimonial house.
5. Basing on the aforesaid allegations made in the complaint, the learned Magistrate referred to the said complaint to the Women Police Station, South Zone, Hyderabad City under Section - 156 (3) of the Cr.P.C. On receipt of the same, the Police registered a case vide Crime No.149 of 2015 for the offences under Sections - 498A, 324 and 506 read with 34 of IPC and Sections - 3 6 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 and 4 of the Dowry Prohibition Act, 1961 against all the petitioners herein.
6. The police after completion of investigation, filed the charge sheet against petitioner No.1 herein - accused No.1 only for the offences under Sections - 498A and 506 of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961 by deleting the names of accused Nos.2 to 8 as there was no evidence on criminal conspiracy against them and that there are no specific allegations against them.
i) In the said charge sheet, it is mentioned that on enquiry with the neighbours and local people, whose names are mentioned in the charge sheet, it is revealed that immediately after marriage, respondent No.2 and petitioner No.1 separated from his family members and living separately in the 2nd floor of the building and that accused Nos.2 to 8 are not interfering with the family matters of accused No.1 and respondent No.2. Every day, respondent No.1 only shouts on accused No.1. Accused Nos.2 to 8 hail from respectable family and they are living peacefully. Accused No.8 is 7 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 studying B.D.S. and living at Bangalore since three years. Despite several requests, respondent No.2 neither produced the witnesses nor medical certificate of treatment where she was treated. Thus, the Investigating Officer deleted the names of accused Nos.2 to 8 in the charge sheet and only filed the charge sheet against accused No.1.
7. Upon receipt of the said charge sheet, the learned XV Additional Chief Metropolitan Magistrate, Hyderabad, has taken cognizance against petitioner No.1 - accused No.1 only vide C.C. No.4233 of 2019 (as against the said proceedings, Crl.P. No.539 of 2022 is filed seeking quashment of the same) for the aforesaid offences on 28.05.2016, however issued notice to respondent No.2
- de facto complainant as the Investigating Officer deleted the names of accused Nos.2 to 8 in the charge sheet.
8. While the things stood thus, Respondent No.2 herein had filed a complaint before the VIII Additional Chief Metropolitan Magistrate, Hyderabad against the very same persons, viz., the petitioners herein and for the very same incident viz., 05.03.2014 8 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 for the offences under Sections - 307 and 506 of IPC, and the same was taken on file vide P.R.C. No.01 of 2017 by the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad.
9. During pendency of the proceedings in the said PRC, petitioner Nos.1 to 7 - accused Nos.1 to 7 filed a petition under Section - 482 of the Cr.P.C., vide Crl.P. No.3279 of 2017 to quash the proceedings in the said PRC. This Court, vide order dated 28.11.2017, disposed of the said criminal petition with the following observation:
"The said P.R.C.No.01 of 2017 is registered against accused Nos.1 to 8. The petitioners herein are accused Nos.1 to 7.
The main contention raised before this Court is that the respondent No.1 herein earlier filed another case for the offences punishable under Sections 498-A, 307, 324 and 506 read with 34 of I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act. The present P.R.C.No.01 of 2017 and the earlier case are related to the offences committed on the same date of offence i.e. on 05.03.3014.
The main allegation of the defacto complainant is that she was subjected to cruelty for her failure to meet the illegal demand of additional dowry and the petitioners are attempted to kill her on 05.03.2014.
When a case is registered on police report and charge sheet is filed by the police after completion of investigation, and taking cognizance of offence in complaint case, registered as P.R.C., the 9 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 procedure to be followed is contemplated under Section 210 (2) of Cr.P.C.
Section 210 (2) of Cr.P.C. reads thus:
(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
Therefore, by following the sub-section (2) of Section 210 of Cr.P.C., the Magistrate/Sessions Judge is required to try or enquire together both the cases filed on the basis of police report and complaint case. Filing of police report and complaint case does not amount to vexing the petitioners twice by applying the principle of double jeopardy; hence on that ground the proceedings cannot be quashed.
As two cases are pending viz. one case is filed on the basis of police report and the other is based on private complaint, the Magistrate concerned is directed to enquire both the cases together by following Section 210 (2) of Cr.P.C. and commit to Sessions Division if the offences are exclusively triable by Court of Sessions. With the above direction, the petition is disposed of. No costs."
10. After perusing the complaint filed by respondent No.2 herein and the evidence let in by her through PWs.1 to 4, the learned VIII Additional Chief Metropolitan Magistrate, Hyderabad, had taken cognizance for the offences under Sections - 307 and 506 10 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 of IPC against the petitioners herein. The petitioners herein also made their appearance in the said PRC. Since the learned Magistrate found that the offence under Section - 307 of IPC is exclusively triable by the District and Sessions Judge, the said case was committed to the said Court under Section - 209 (a) of the Cr.P.C. vide order dated 26.02.2020, with a direction to the petitioners to appear before the said Sessions Court. Pursuant to the said committal order, the said case was numbered as S.C. No.325 of 2021 and allotted to the Court of I Additional Metropolitan Sessions Judge, Hyderabad.
11. In view of the above, the petitioners herein have filed Crl.P. No.9941 of 2021 to quash the proceedings in the said S.C. No.325 of 2021 and another petition vide Crl.P. No.539 of 2022 to quash the proceedings in C.C. No.4233 of 2019 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad. It is relevant to note that in view of the taking cognizance by the Sessions Judge vide S.C. No.325 of 2021, the proceedings in C.C. No.4233 of 2019 should not be continued.
11
KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022
12. During the pendency of the proceedings in S.C. No.325 of 2021, the parties i.e., accused Nos.1 to 8 and de facto complainant have entered into compromise and pursuant thereto, respondent No.2 herein also filed I.A. Nos.1 and 2 of 2021 in Crl.P. No.9941 of 2021 and I.A. Nos.1 and 2 of 2022 in Crl.P. No.539 of 2022 to permit her to enter into compromise and to record the terms thereof by quashing the proceedings in the above two Cases against the petitioners herein.
13. Heard Mr. Mirza Safiulla Baig, learned counsel for the petitioners - accused Nos.1 to 8 in both the petitions, Mr. Mohd. Nadeem, learned counsel for respondent No.2 - de facto complainant, and learned Assistant Public Prosecutor appearing on behalf of respondent No.1 - State.
14. Learned counsel for the petitioners would submit that the petitioners are innocent of the offences alleged against them and the contents of the complaint lack the ingredients of the offences alleged. Having considered the same only, the Investigating Officer has deleted the names of accused Nos.2 to 8 in the charge sheet. This itself shows that respondent No.2 has 12 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 falsely implicated them in the above two cases. He would further submit that in view of the taking cognizance in S.C. No.325 of 2021, the proceedings in C.C. No.4233 of 2019 would become infructuous. However, during the pendency of the above cases, the parties entered into compromise amicably and pursuant to the same, respondent No.2 has come forward to withdraw the criminal proceedings against the petitioners and accordingly she has approached this Court by filing I.A. Nos.1 and 2 of 2021 in Crl.P. No.9941 of 2021 and I.A. Nos.1 and 2 of 2022 in Crl.P. No.539 of 2022 to permit her to enter into compromise and to record the terms thereof by quashing the proceedings in the above two cases against the petitioners herein.
15. The learned counsel for respondent No.2, on instructions, would submit that respondent No.2 has no objection to quash the proceedings against the petitioners herein in view of the compromise entered between the parties.
16. On the other hand, learned Assistant Public Prosecutor by referring to the principle laid down by the Apex Court in The 13 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 State of Madhya Pradesh v. Laxmi Narayan1 would submit that there are serious allegations against the petitioners herein and that the role of the petitioner in commission of offences is also specifically mentioned in the complaint. Further, the offence under Section - 307 of IPC is serious in nature and will have impact on the society and, therefore, on the ground of compromise by the parties out of Court, proceedings cannot be quashed. In view of the same, he sought to dismiss both the petitions.
17. Perusal of the contents of the complaint would reveal that as stated above, there are specific allegations against each of the petitioner made by respondent No.2 herein. The contention of the petitioners that they are innocent of the offences alleged against them and that they never involved in the commission of the offences etc., are all triable issues which have to be considered by the trial Court during trial, but not at this stage in a petition filed under Section - 482 of the Cr.P.C. on the ground of entering into the compromise by the parties.
1 2019 (5) SCC 403 14 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022
18. Further, in the affidavit accompanied by the aforesaid petitions, respondent No.2 herein has stated about filing the aforesaid complaint with the Court. She further stated that during pendency of the above cases, at the intervention of elders and well- wishers, the matter has been settled between her and the accused and accordingly, she has decided to withdraw her cases. Both the parties have also filed a joint memo to that effect. The said joint memo is placed on record.
19. In view of the above said submissions and considering the fact that case was registered for the aforesaid offences, it is relevant to refer to the parameters laid down by the Apex Court in Laxmi Narayan1 which are as under:
"i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the 15 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 parties have resolved the entire dispute amongst themselves;
ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;
iii) similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;
iv) offences under Section 307 IPC and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved 16 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 their entire dispute amongst themselves.
However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 17
KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022
v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."
20. As discussed supra, prima facie, there are serious allegations against all the petitioners. The offence under Section - 307 of IPC is serious one and will have impact on the society.
21. In view of the above discussion and considering the parameters laid down by the Apex Court in Laxmi Narayan1 and also considering the fact that one of the offences alleged against the petitioners is serious in nature and will have impact on the society, this Court is not inclined to quash the proceedings in the aforesaid S.C. No.325 of 2021 merely on the ground that the parties have entered into compromise. However, the proceedings in 18 KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022 C.C.No.4233 of 2019 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad, can be quashed as parallel proceedings cannot go on in respect of the very same allegations and offences against the same parties.
[
22. In view of the aforesaid discussion, I.A. Nos.1 and 2 of 2021 in Crl.P. No.9941 of 2021 are dismissed. Consequently, Crl.P. No.9941 of 2021 is also dismissed. However, this Court in exercise of its inherent power can pass order to secure the ends of justice.
i) Similarly, I.A. Nos.1 and 2 of 2022 in Crl.P. No.539 of 2022 are also dismissed. However, Crl.P. No.539 of 2022 is allowed quashing the proceedings in C.C.No.4233 of 2019 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad, against the petitioners herein - accused Nos.1 to 8. However, it is to be noted that the cognizance taken in S.C. Nos.325 of 2021 are for the offences under Sections - 307 and 506 of IPC against accused Nos.1 to 8, while the offences taken in C.C. No.4233 of 2019 are under Sections - 498A and 506 of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961.
19
KL,J Crl.P. Nos.9941 of 2021 & 539 of 2022
ii) Since the proceedings in C.C. No.4233 of 2019 are quashed, the learned Sessions Judge shall proceed with the offences under Section - 498A read with 34 of IPC and Sections - 3 and 4 of the Dowry Prohibition Act, 1961, along with Sections - 307 and 506 of IPC in S.C. No.325 of 2021.
As a sequel, miscellaneous petitions, if any, pending in the criminal petitions shall stand closed.
____________________ th 6 June, 2022 K. LAKSHMAN, J Mgr