Telangana High Court
Smt.Kalpana vs The State Of Telangana.,Rep.,Pp And ... on 17 August, 2022
Author: D. Nagarjun
Bench: D. Nagarjun
THE HON'BLE DR. JUSTICE D. NAGARJUN
CRIMINAL PETITION No.16907 of 2016
ORDER:
This petition is filed by the petitioner/A5 seeking quashment of complaint in C.C.No.531 of 2015 cognizance of which was taken against the petitioner and others for the offences under Sections 114, 384, 496 and 498(A) read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act.
2. The facts in brief as per the private complaint filed by the de-facto complainant against the petitioner and others are as under:
a. The marriage of the de-facto complainant was performed with A1 on 18.06.2014. As on the date of marriage of the de- facto complainant with A1 on 18.06.2014 both of them were divorcees. Prior to the marriage of the de-facto complainant with A1, the family of the de-facto complainant was informed that the de-facto complainant was having property of Rs.1.5 crores, the accused have demanded Rs.20 lakhs towards dowry of which the family of the de-facto complainant paid Rs.4.5 lakhs and also Rs.15 lakhs. After the marriage, A6, who was the former wife of 2 A1, started calling A1 and threatening him with consequences, demanding him to leave the de-facto complainant and join her. On questioning by the de-facto complainant, A1 informed that he is trying to forget her and will continue the life only with the de- facto complainant. However, A6 continued to call him and interfere and used to speak over phone. A1 has stated to the de- facto complainant that he takes some time to forget A6. b. On 01.07.2014, A1 informed the de-facto complainant that on account of tensions, he cannot continue his job and wanted to resign and went to Vishakapatnam. A1 demanded the remaining dowry and subsequently, A1 did not come to the de- facto complainant. A6 continues to call A1 asking to come and join her and she has threatened A1, if he fails to join her. c. On 20.10.2014, A1 went to Puttaparthi and switched off his phone. The de-facto complainant and her family members have approached A2 to A4 and enquired about A1. Cognizance of the complaint was taken for the offence under Sections 114, 384, 496 and 498(A) read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act. Aggrieved by the same, this petition is filed by the petitioner/A5 seeking quashment of the complaint.3
3. Learned counsel for the petitioner/A5 has submitted as under:
The former wife of A1 has filed application in the family Court for setting aside the divorce, which was already granted. The de-facto complainant has filed DVC.No.114 of 2015 on the file of the III Metropolitan Magistrate, Hyderabad, against A1 and others. She has also field a private complaint in C.C.No.531 of 2015 against the petitioner and others. She has also filed another case in C.C.No.1883 of 2015 for the offence under Sections 406, 420, 120B read with 34 IPC. A1 and the de-facto complainant never stayed together at any point after 18.06.2014. The petitioner was never stayed with them at any time. Even as per the complaint offences under Section 114, 384, 496, 498A read with 34 and Sections 3 and 4 of the Dowry Prohibition Act would not constitute. There are no specific averments against the petitioner/A5. There are no pleadings, overt acts against the petitioner and therefore, sought for quashment of the complaint against the petitioner/A5.
4. The petitioner and other accused were allegedly committed offences under Section 114, 384, 496 and 498A read with 34 and Sections 3 and 4 of the Dowry Prohibition Act. On going through the contents of the complaint, it is clear that all the 4 allegations made by the de-facto complainant are only against A1, nothing has been specifically mentioned against any of the other accused, including the petitioner/A5. It is not the case of the de-facto complainant that the petitioner/A5 has been residing with A1 in the same house. The petitioner has been residing with her family at Vijayanagaram District, since the date of her marriage whereas the offences allegedly took place in Hyderabad.
5. According to the de-facto complainant, A1 has left the de- facto complainant after the marriage, on the pressure of A6, who is his former wife. It is specifically mentioned that only A1 has demanded the dowry. Though she has stated that the family members of the de-facto complainant have agreed to sell the property in order to pay the money as demanded by A1, she has not filed any document to that extent. She has not mentioned on what date, in whose presence, at what time, the petitioner demanded the dowry and when the dowry was paid. There are no serious allegations against this petitioner specifically, whatever allegations are levelled in respect of the petitioner/A5 are very generic in nature.
6. The de-facto complainant has alleged that the petitioner has also committed offence punishable under Section 114 IPC. 5 As per Section 114 IPC, the petitioner/A5 should have been an abettor and being an abettor, she must also present at the scene of offence. It is not the case of the de-facto complainant that the petitioner/A5 is not an abettor. According to the complainant, all the accused have demanded dowry. So far as Section 114 IPC is concerned, it explains a situation as to how a person, who has abetted the offence, is physically present at the scene of offence. Therefore, Section 114 IPC will not be applicable to the facts of the case and the trial Court should not have taken cognizance of Section 114 IPC against the petitioner.
7. The other offence alleged against the petitioner and other accused is Section 384 IPC. Section 384 IPC deals with the punishment for the offence of extortion. In order to prove the offence against the petitioner, the de-facto complainant has to brand the petitioner/A5 that she has been extorting money from the de-facto complainant, then only she can be fastened the liability under Section 384 IPC.
8. It is surprising to note that the allegation against the petitioner is harassment of dowry and demanding dowry. At any stretch of imagination, demanding dowry cannot be an extortion. Even if the offence is committed because giving of money, demanding of money in respect of marriage is defined as a dowry 6 under the Dowry Prohibition Act and collection of that money is also a penal provision. Demanding and taking dowry is also an offence under Dowry Prohibition Act. When such is the case, taking money and demanding dowry cannot be at any stretch of imagination be termed as extortion. On going through these provisions, it is clear that the de-facto complainant without any application of mind, without even considering as to what are the offences that can be attracted to the alleged acts or omissions of the petitioner and other accused. The trial Court also without applying its mind has blindly taken cognizance of all these offence, which is really deplorable. Therefore, there are no grounds to proceed against the petitioner for the offence under Section 384.
9. The other offence alleged against the petitioner is under Section 496 IPC. Even in respect of this offence also, there is not even a single ingredient against the petitioner. In order to fasten the liability under Section 496 IPC, the de-facto complainant has to prove that the person with fraudulent intention or with dishonest intention has passes through the ceremonies of marriage, knowingly fully well that he is not there by lawfully married.
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10. If at all any semblance of connection in respect of this offence, it would be only to A1, but even this provision is not applicable to A1. It is the case of the de-facto complainant that both A1 and the de-facto complainant have taken divorce officially from the respective family Courts and both of them got married. When A1 was already taken divorce, before he married the de-facto complainant, this provision will not apply. In any case, it is for the trial Court to consider against A1 and since the allegations under Section 496 IPC will not at all applicable to the petitioner/A5, the Court cannot proceed against the petitioner in respect of offence under Section 496 IPC.
11. The other offence alleged against the petitioner is under Section 498A IPC. So far as this offence is concerned, the de- facto complainant is expected to make allegations that the petitioner being family member of A1 subjects her with cruelty. On going through the entire complaint in detail, the de-facto complainant has not mentioned that the petitioner has subjected her with cruelty. The only allegation of the de-facto complainant is against A1 stating that even after giving divorce to A6, even after marrying the de-facto complainant, still A1 and A6, wherein taking terms over mobile and that A1 seems to have stated that he is unable to forget A6. In fact, it is not even the allegation of 8 the de-facto complainant that A6 and A1 have met subsequent to divorce of A1 with A6 and after her marriage with A1.
12. The complaint of the de-facto complainant will go to show that A1 is not interested to continue the relationship with A6 any more and even after showing reluctance, still A6 was after A1 over telephone. It is also mentioned by the de-facto complainant that A6 has threatened A1 over phone that in case A1 fails to join her, her people will kill A1. These aspects as narrated by the de-facto complainant demonstrate that A1 is not at all interested to join the company of A6. Even if those allegations are accepted to be true, the grievance of the de-facto complainant is not against the petitioner/A5.
13. Even otherwise, there is no mention in the complaint as to on what date, in whose presence, at which place, the petitioner/A5 has subjected the de-facto complainant with cruelty. It is not even mentioned what was the nature of the cruelty that the de-facto complainant was subjected by the petitioner.
14. Therefore, on going through the entire complaint, there is not even a small allegation levelled against the petitioner/A5. Therefore, continuation of proceedings against the petitioner/A5 9 amount to abuse of process of law. Therefore, the petition is liable to be allowed.
15. In the result, the criminal petition is allowed and the proceedings against the petitioner/A5 in C.C.No.531 of 2015 on the file of XIII Additional Chief Metropolitan Magistrate, Nampally are hereby quashed.
Miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. D. NAGARJUN, J Date: 17.08.2022.
ES