Telangana High Court
Mrs.Rubina A4 vs The State Of Telangana on 26 September, 2018
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL PETITION NO.5925 OF 2018
ORDER:
This criminal petition is filed under Section 482 Cr.P.C to quash the proceedings against the petitioners herein/A-4 to A-9 in C.C.No.1346 of 2010 pending on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections 498-A, 406 IPC and Sections 3 & 4 of Dowry Prohibition Act.
The second respondent/defacto complainant filed a private complaint before the Magistrate, stating that she is the legally wedded wife of the accused No.1 and the marriage between them was performed on 05-06-2004 at Sayeed Function Hall, Kurmaguda, Hyderabad with a deferred dower of Rs. 25,000/- and 2 dinar-o-sharsi. At the time of marriage, the parents of the complainant gave jahez articles worth Rs. 2,00,000/- and also ghoda Joda amount of Rs. 2,00,000/- totaling to Rs. 4,00,000/-. Accused No.2 is the mother of the accused No 1, accused No.3 and 4 are the sisters of the accused No 1, accused No 5 is the uncle of the accused No.1, accused No.6 is the step father of the accused No.1, accused No.7 is the aunty of the accused No 1 and accused No.8 and 9 are the uncles of the accused No. 1.
It is stated in the complaint that, after the marriage, the complainant went to the house of the accused No.1 for leading marital life at Santhosh Nagar, Hyderabad and resided happily for a period of four weeks. Thereafter, the accused persons have started harassing the complainant for additional dowry of Rs. 1,00,000/-, for which the complainant did not agree and MSM,J Crl.P_5925_2018 2 expressed her inability to make arrangement of payment of Rs. 1,00,000/-. On 11-7-2004 at 8:00 PM, the accused persons gathered at the house of the accused No.1 and demanded for additional dowry of Rs.1,00,000/- from the complainant, the complainant called her father Syed Rahimuddin and brother Syed Tajuddin and Uncle Basheeruddin by telephone. Thereafter, her father, brother and uncle of the complainant came to the house of the accused No.1 and the accused persons have attacked her father, brother and uncle when they refused to give additional dowry of Rs. 1,00,000/-. Her father, brother and Uncle sustained minor injuries. The accused persons threw out father of the complainant, her brother and uncle stating that unless they pay the additional dowry amount of Rs. 1,00,000/-, they should not come to the house. The accused persons started harassing the complainant and they also threatened the complainant with dire consequences of murder of complainant as well as her parents.
Further, it is stated that, the complainant is carrying third month pregnancy and on 23-7-2004, when mother-in-law i.e. accused No.2 taken the complainant for the purpose of abortion of child in Marie Stopes Nursing Home, the complainant did not agreed for the abortion. One Dr. Bala Kumari called her father by telephone, thereafter the father of the complainant approached the Hospital, and Dr. Bala Kumari handover the custody of the complainant to him and from there the complainant along with her father, brother came to their house at Yakutpura, Hyderabad. On 24-08-2004 at 10:00 P.M. the accused persons came to the house of the complainant Yakutpura, Hyderabad along with some unsocial elements and again demanded for additional dowry of MSM,J Crl.P_5925_2018 3 Rs. 1,00,000/-, when the parents of the complainant failed to pay the dowry amount, they have picked up quarrel with father of he complainant and also beat the complainant as well as her father and brother. The complainant, her father and brother have sustained bodily injuries due to the attack by the accused persons and also suffered mental torture and agony. The accused persons are also trying to sell the jahez articles which were given at the time of marriage to the third persons, thereby, accused persons have committed the offence of breach of trust, as such they are liable for prosecution for the offences punishable under Sections 498-A, 406 IPC and Sections 3 & 4 of Prohibition Act.
On receipt of the complaint, the police registered crime against the petitioners herein/A-4 to A-9 and issued F.I.R. During investigation, the police examined as many as six witnesses, recorded their statements under Section 161 Cr.P.C and on the strength of the evidence collected during investigation, concluded that there is prima facie material to proceed against these petitioners and filed charge-sheet against these petitioners herein/A-4 to A-9 and also other accused 1 to 3, for the offences punishable under Sections 498-A & 406 IPC and Sections 3 & 4 of Dowry Prohibition Act.
The Magistrate took cognizance of the offences against the petitioners and other accused issued process. The present criminal petition is filed to quash the proceedings in C.C.No.1346 of 2010 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad, on the ground that, even if the allegations made in the private complaint and evidence collected during investigation, if MSM,J Crl.P_5925_2018 4 accepted on its face value, no offence is made out against these petitioners prima facie and in the absence of satisfying the ingredients to constitute those offences, filing of charge-sheet based on the material allegedly collected by the Investigating Agency against these petitioners is a serious illegality. Further, it is contended that, taking cognizance of the offences punishable under Sections 498-A & 406 IPC and Sections 3 & 4 of Dowry Prohibition Act is without applying mind and issuing process against these petitioners will seriously affect the fundamental rights of these petitioners.
It is also contended that, the criminal proceedings against A-3 were quashed by this Court vide Crl.P.No.11740 of 2011 dated 02.01.2018. Earlier, Crl.P.No.11218 of 2011 which was filed by the same petitioners was dismissed as infructuous, wherein, the learned Public Prosecutor for the State of Telangana reported that the matter was compromised and the matter was closed. But, it is pending before competent Court. Therefore, the petitioners renewed their request in the present petition to quash the proceedings in C.C.No.1346 of 2010 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad.
The second respondent filed counter, reiterating the allegations made in the private complaint, alleging that these petitioners/A-4 to A-9 gathered at the house of A-1 and demanded additional dowry of Rs.1 lakh from her, it is also contended that, petitioners/A-4 to A-9 are also liable to be proceeded for the offence punishable under Section 498-A IPC.
MSM,J Crl.P_5925_2018 5 Further, it is also contended that, the petitioners herein along with one Sameera Ismail (A-3) filed Crl.P.No.1693 of 2006 before this Court, and the same was dismissed on 28.06.2006, holding that there is a prima facie case to proceed against these petitioners and prayed to dismiss the petition.
Considering rival contentions, perusing the material available on record, the points that arises for consideration are as follows:
1. Whether dismissal of Crl.P.No.1693 of 2006 vide order dated 28.06.2006 is a bar to quash the proceedings in C.C.No.1346 of 2010 pending on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad?
2. Whether the allegations made in the charge-sheet against the petitioners constitutes offences punishable under Sections 498-A & 406 IPC and Sections 4 & 6 of Dowry Prohibition Act. If not, whether the proceedings against these petitioners are liable to be quashed by exercising power under section 482 Cr.P.C?
P O I N T No.1:
The Investigating Agency examined as many as six witnesses during investigation and recorded their statements under Section 161(3) Cr.P.C. The conclusions arrived by the Investigating Agency is that the evidence on record revealed that the first accused and the second respondent are the legally wedded husband and wife respectively and they were married on 05.06.2004 at Hyderabad. A-2 is the mother-in-law of the second respondent. It is the allegation that, at the time of marriage, as per the demand of A-1 & MSM,J Crl.P_5925_2018 6 A-2, the parents of the second respondent apart from giving dower of Rs.25,000/- and gave Rs.4 lakhs towards dinar-e-sharai, Jehez articles and ghoda jhoda (customary celebration at the time of marriage). Soon after marriage, the second respondent joined the company of the first accused to lead matrimonial life and she led happy marital life for four weeks. Thereafter, the second respondent was subjected to harassment by A-1 to A-2 for her failure to meet the additional dowry of Rs.1 lakh. When the parents of the second respondent expressed their inability to meet the illegal demand of dowry, A-1 to A-2 subjected her to cruelty. Thus, A-1 & A-2 demanded dowry at the time of marriage and misappropriated Jehaz articles, thereby, committed offences punishable under Sections 498-A & 406 IPC and Sections 3 & 4 of Dowry Prohibition Act.
On receipt of notices under Section 172(2) Cr.P.C, the second respondent filed a protest petition, questioning the elimination of A-3 to A-9 in the charge-sheet. The sworn statements, if accepted, the allegations at best would show that the first respondent did not take up any proceedings against R-4 to R-9 i.e petitioner nos.1 & 6, though they are residing with the first accused. The police examined only four witnesses produced by the second respondent and the proceedings against R-3 to R-6 were dropped, even though material is available and they subjected the second respondent to cruelty/harassment, both physically and mentally for her failure to meet the illegal demand of additional dowry.
MSM,J Crl.P_5925_2018 7 On the basis of the protest petition and sworn statement of the second respondent, the Court took cognizance against these petitioners for the offences punishable under Sections 498-A & 406 IPC and Sections 3 & 4 of Dowry Prohibition Act.
The allegations made in paragraph 2 of the private complaint disclosed the relationship of the A-1 with other accused. While A-2 is the mother of A-1, A-3 & A-4 are the sisters of A-1. A-5 being his uncle, A-6 is his step father, A-7 is his aunty and A-8 & A-9 are the uncles of A-1.
The addresses given in the private complaint are relevant at this stage. It is stated that A-1 to A-3 are the residents of D.No.17-1-304/A/3, Santosh Nagar, Hyderabad, whereas, A-4 & A-5 are the residents of D.No.17-6-294, Dabeerpura, Hyderabad, A-6 is the resident of D.No.17-2-639, Madanpet, Hyderabad and A-7 to A-9 are the residents of D.No.18-7-230/7/6/A, Talabkatta, Hyderabad. Thus, from the description of the petitioners and their residential address particulars mentioned in the long cause title of the complaint, itself discloses that A-1 to A-3 are the residents of Santosh Nagar, A-4 & A-5 are the residents of Dabeerpura, A-6 is the resident of Madanpet and A-7 to A-9 are the residents of Talabkatta. The description and address particulars of the petitioners herein would disclose that they are living separately in different places. Though the residential areas of A-4 to A-9 are near to Santosh nagar, they are leading their life independently either by working or carrying on business. But, in paragraph 4 of the complaint, the second respondent/defacto complainant specifically asserted that, on 11.07.2004 at about 08:00 P.M, all the accused MSM,J Crl.P_5925_2018 8 persons gathered at the house of A-1 and demanded for additional dowry of Rs.1 lakh from the complainant. When the complainant called her father Syed Rahimuddin, brother Syed Tajuddin and uncle Basheeruddin by telephone, all the above three persons came to the house of A-1 and the accused persons have attacked her father, brother and uncle of second respondent, when they refused to give additional dowry of Rs.1 lakh. It is further stated in paragraph No.4 that, her father, brother and uncle of the second respondent sustained minor injuries and the accused persons threw out all four persons, stating that unless they pay additional dowry amount of Rs.1 lakh, they will not allow the second respondent to enter into their house. Further, the accused persons started harassing the complainant and they also threatened the complainant with dire consequences to murder the complainant, as well as her parents. But, this fact is not supported by any material. Moreover, the allegations made in paragraph 5 are relevant at this sage. According to the second respondent, on 24.08.2004 at 10:00 P.M, the accused persons came to the house of the complainant at Yakutpura along with some anti-social elements and again demanded for additional dowry of Rs.1 lakh and when the parents of the second respondent failed to meet the illegal demand of additional dowry, it is alleged that the accused have picked up quarrel with the father of the complainant and also bet the complainant as well as her father and brother and also threatened them with dire consequences.
Thus, no specific overt acts have been attributed to the petitioners, except omnibus allegations, roping the petitioners into the offences conveniently. Even, the statements recorded by the MSM,J Crl.P_5925_2018 9 police during investigation, does not disclose commission of any specific offences by these petitioners on any of the dates, except alleging that on 11.07.2004 and 24.08.2004, all the accused gathered at the matrimonial house of A-1 and demanded dowry of Rs.1 lakh and thus, the second respondent narrated the two incidents referred in paragraphs 3 & 4 of the complaint.
Father of the second respondent was examined who spoke about the incident that occurred on 11.07.2004 regarding demand of additional dowry by all the accused and nothing was staed by him about the second incident. Brother and uncle of the second respondent also stated in the lines of the father of the second respondent about the incident. Thus, the incident allegedly took place on 11.07.2004 is supported by the testimony of other witnesses. But, the second incident that occurred on 24.08.2004 was not spoken by anyone of the other witnesses, except the second respondent/defacto complainant.
If, really the incident had taken place on 24.08.2004 at the residence of the second respondent's parents house, her father, brother or her uncle would have spoken something about the incident. But, there was no whisper regarding the incident that occurred on 24.08.2004. Similarly, the sworn statement is also silent as to the details of alleged cruelty or harassment she meted in the hands of these petitioners for non-payment of additional dowry. Except the statement of P.W.1, recorded under Section 161(3) Cr.P.C, no other witness spoke about the incident that allegedly took place on 24.08.2004 at 10:00 PM. According to the material available on record, on 11.07.2004 all the accused MSM,J Crl.P_5925_2018 10 persons gathered at the house of A-1 and demanded the second respondent for additional dowry and when father, brother and uncle of the second respondent entered into the scene, all the accused caused bodily injuries and threatened with dire consequences. But, this fact is not supported by any material. However, except accused 1 & 2 who are the husband and mother- in-law respectively, of the second respondent, rest of the accused are remotely related to the first accused and that too, they are residing in separate houses at different areas, as stated supra.
In K. Subba Rao v. State of Telangana, rep by its Secretary, Department of Home1, the Supreme Court has cautioned the courts while proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths and held that, kith and kin should not be roped in, on the basis of omnibus allegations in matrimonial cases. The Apex Court further held as follows:
"Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out."
In view of the judgment of the Supreme Court referred supra, roping in the kith and kins of the husband for the offences punishable under Section 498-A IPC is a serious illegality and the Court can exercise power under Section 482 Cr.P.C to quash the proceedings. If the principle laid down in the above judgment is 1 Crl.A.No.1045 of 2018 dated 21.08.2018 MSM,J Crl.P_5925_2018 11 applied to the present facts of the case, the petitioners herein/A-4 to A-9 cannot be proceeded in trial for the offence punishable under Section 498-A IPC.
The other offence allegedly committed by these petitioners is punishable under Section 406 IPC. This Court already took a view that, no offence is made out against A-3, who is allegedly staying with A-1 & A-2 and being the sister of A-1 and daughter of A-2. Apart from that, the entire material on record, does not disclose entrustment of any property to these petitioners to rope them with the offences punishable under Section 406 IPC.
Section 406 IPC deals with punishment for criminal breach of trust and according to it, whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. But, Section 405 IPC defined the term 'criminal breach of trust' and it is as follows:
"Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
When Stridhana properties were entrusted to husband and there was misappropriation or conversion, it will amount to criminal breach of trust (vide Rashmi Kumar v. Mahesh Kumar Bhada2). When entrustment is proved, prosecution need not prove misappropriation. (vide State of H.P. Vs. Karanvir3) 2 1997 (2) SCC 397 MSM,J Crl.P_5925_2018 12 If, the principles laid down in the above judgments are applied to the present facts of the case, when the parents of the second respondent apart from giving dower of Rs.25,000/- and gave Rs.4 lakhs towards dinar-e-sharai, Jehez articles and ghoda jhoda, entrustment is only with A-1 & A-2, but not with any other persons/petitioners herein. In such case, proceeding against these petitioners for the offence punishable under Section 406 IPC is illegal. Even, the statements recorded by the police and the sworn statement of the second respondent recorded by the police is totally silent with regard to entrustment of any of properties to these petitioners and misappropriation or conversion of the same, in contravention of the directions. Therefore, the proceedings against these petitioners for the offence punishable under Section 406 IPC are liable to be quashed.
The other offences allegedly committed by the petitioners are punishable under Sections 3 & 4 of Dowry Prohibition Act.
Section 3 of Dowry Prohibition Act deals with penalty for giving or taking dowry. But, the complaint filed by the second respondent/defacto complainant is barred under Rule 5(c) r/w Rule 10 of the Andhra Pradesh Dowry Prohibition Rules, 1998, as according to Rule 5(c) r/w Rule 10 of the Rules, any complaint shall be made either on the demand of dowry or accepting dowry within a period of one year. Therefore, the offence punishable under Section 3 of Dowry Prohibition Act is barred by limitation and on this ground alone, the proceedings against these petitioners are liable to be quashed.
3 AIR 2006 SC 2211 MSM,J Crl.P_5925_2018 13 With regard to the offence punishable under Section 4 of Dowry Prohibition Act, the same is barred in view of the judgment of the Supreme Court in K. Subba Rao v. State of Telangana, rep by its Secretary, Department of Home (referred supra) and these petitioners cannot be proceeded for the offence punishable under Section 4 of Dowry Prohibition Act. Accordingly, the point is answered. However, as earlier Crl.P.No.1693 of 2006 was dismissal on the same grounds, this petition cannot be allowed. P O I N T No.1:
The second respondent in her counter contended that the petition filed by these petitioners earlier in Crl.P.No.1693 of 2006 ended in dismissal and the very same petitioners along with A-3 filed Crl.P.No.1693 of 2006 under Section 482 Cr.P.C, this court dismissed the petition. When earlier petition was dismissed on the same grounds, this Court cannot entertain subsequent petition on the same ground to quash proceedings.
One of the contentions raised by the learned counsel for the second respondent in counter affidavit is that, the very same petitioners filed Crl.P.No.1693 of 2006 which ended in dismissal by this Court. When this Court dismissed Crl.P.No.1693 of 2006 filed by these petitioners on the same grounds, this Court cannot entertain the second application on the same grounds to record its findings afresh, since, it amounts to review of the judgment of the Court, which is barred under Section 362 Cr.P.C and filing of such applications one after the other is nothing but abuse of process of the Court.
MSM,J Crl.P_5925_2018 14 In Supdt. and Remembrancer of Legal Affairs W. B. v. Mohan Singh4, the Supreme Court held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the Respondent clearly lays down, following the judgment of the Apex Court in U.J.S. Chopra vs. State of Bombay5 held that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review on revision can be entertained against that judgments as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.
In Hari Singh Mann V. Harbahjan Singh Bajwa6 Apex Court held that, there is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. The Supreme 4 AIR 1975 SC 1002 5 AIR 1955 SC 633 6 (2001)1 SCC 169 MSM,J Crl.P_5925_2018 15 Court in State of Orissa v. Ram Chander Agarwala7, held as follows:
"Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides in Talab Haji Hussain vs. Madhukar Purshottam Mondkar and Anr (AIR 1958 SC 376) relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the Appellant to be at large cancelled the bail, distinguishing the decision in Lala Jairam Das and Ors. vs. Emperor (AIR 1945 PC 94) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under S.561A. In Sankatha Singh v. State of U. P. (AIR 1962 SC 1208), this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for a re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of S. 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and re-hear the appeal observing that "Section 369 read with S. 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs W.B. v. Mohan Singh, AIR 1975 SC 1002 by Mr. Patel, learned Counsel for the Respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the Respondent clearly lays down, following Chopra' s case AIR 1955 SC 633: (1955 Cri LJ 1410) (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court.
The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code."
7 AIR 1979 SC 87 MSM,J Crl.P_5925_2018 16 In view of the law declared by the Supreme Court in long line of catena of judgments referred supra, I am of the considered view that, it is not a fit case to quash the proceedings, as it amounts to renewal of the order passed by this Court earlier in Crl.P.No.1693 of 2006, which ended in dismissal. On this ground alone, the petition is liable to be dismissed.
In the result, the criminal petition is dismissed. Consequently, miscellaneous petitions pending if any, shall also stand dismissed. No costs.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:26.09.2018 SP