Telangana High Court
Abhishek Yash, Gaziabad, Up And 2 Others vs The State Of A.P., Rep.By Public ... on 18 October, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.5054 of 2011
ORDER:
This Criminal Revision case is filed by the petitioners-A1 to A3 under Section 482 Cr.P.C. to quash the proceedings in CC No.907 of 2010 on the file of XIII Additional Chief Metropolitan Magistrate (Mahila Court) at Hyderabad, for taking cognizance of the offences under Sections 498-A, 406, 325 IPC and 3 and 4 of Dowry Prohibition Act (for short 'DP Act')
2. The case of the prosecution in brief against the petitioners was that the 2nd respondent - de facto complainant lodged a complaint before the CID Police on 11.05.2010 at 11.00 AM stating that she got married with A1, who belonged to Vyshali, Gaziabad, U.P. on 13.12.2006 at Marvel Pavilion (Jewel Garden), Secunderabad as per Hindu rites and customs. Before marriage, at the time of engagement (tilak ceremony), as per the demand of A1 and his mother (A2) and brother (A3), the parents of the complainant gave cash of Rs.10.00 lakhs, gold and silver ornaments, household articles and furniture towards dowry. After marriage, A1 to A3 harassed her both ::2::
Dr.GRR,J crlp_5054_2011 physically and mentally by finding fault with her parents about the gifts. On 22.12.2006, A1 picked up quarrel with her on a petty matter, abused and bet her without any reason. They also did not allow her to talk with her parents and restricted her movements as they were not satisfied with the dowry given by her parents. On 24.12.2006 at the time of reception at Marvel Club, New Delhi, her husband and in- laws ill-treated her and her parents and humiliated them before their relatives and friends. However, both A1 and the complainant left for USA on 11.01.2007. Thereafter, A1 at the instigation of A2 and A3 (over telephone) started harassing her physically and mentally and insisted her to come down to India along with him. When she objected, he immediately left to India in the month of January, 2007 and blocked all means of communication. In order to satisfy him, she came down to India in the month of June, 2007 and stayed at her in- laws' house. During her stay at her in-laws' house, her husband and in-laws harassed her mentally and physically with a demand to bring all her earnings. Whenever she expressed her inability, A1 became wild, abused and beat her severely. Again the complainant went to USA and joined duty. Later A1 also came to USA and started harassment. On 07.07.2007 due to the continuous harassment and ::3::
Dr.GRR,J crlp_5054_2011 beatings of A1, the complainant lodged a complaint to the police at USA. The police warned A1 and escorted him up to the Airport. The complainant sustained a herniated disc in the spine and was bed ridden for a few months due to the beatings of A1 and lost her job. A1 to A3 having taken advantage of the innocence of the complainant and her parents ruined them financially and caused severe mental and physical harassment and threatened them with dire consequences.
3. Basing on the said complaint, the CID registered a case in Crime No.6 of 2010 for the offences under Sections 498-A, 406 IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. The Deputy Superintendent of Police, Women Protection Cell, CID, Hyderabad conducted investigation and after completion of investigation filed charge sheet against A1 to A3 for the offences under Sections 498-A, 406 IPC and Sections 3, 4 and 6 of DP Act. A1 was also charged for the offence under Section 325 IPC for assaulting the complainant physically. The XIII Additional Chief Metropolitan Magistrate, (Mahila Court) at Hyderabad had taken cognizance of the above offences and numbered the case as CC No.907 of 2010.
::4::
Dr.GRR,J crlp_5054_2011
4. Heard learned counsel for the petitioners and the learned Assistant Public Prosecutor for respondent No.1 and the learned counsel for the respondent No.2.
5. The learned counsel for the petitioners brought to the notice of this court that the 2nd petitioner - A2 died during the pendency of this petition.
6. Learned counsel for the petitioners submitted that the 2nd respondent was a Non-Resident Indian (NRI) since 2001, whereas the 1st petitioner was a resident of New Delhi. Even at the time of marriage, the 2nd respondent was a resident of USA and the 1st petitioner was a resident of New Delhi. The 2nd respondent came to India for the purpose of marriage. She never stayed at the matrimonial house in New Delhi and proceeded to USA, till date she continued to reside in USA. The logic of continuing offence could not be applied in the absence of a specific allegation that part of cause of action arose where the complaint was lodged. There was not even iota of allegation either in the FIR or in the 161 Cr.P.C. statement that either of the petitioners received dowry or demanded for additional dowry at Hyderabad. The investigation conducted by the Investigating Officer ::5::
Dr.GRR,J crlp_5054_2011 and the cognizance taken by the Magistrate would suffer from non-
application of mind as there was no territorial jurisdiction to take cognizance of the accused. The allegations against the petitioners No.2 and 3 were vague. No specific overt acts were attributed against them. The charge sheet or the statements of the witnesses would not reflect the list of the items which were entrusted to the petitioners except a vague word that gold ornaments were taken away. In the absence of not mentioning the gold items entrusted to the petitioners, the Hon'ble Apex Court held that such testimony could not be believed. The 2nd respondent filed divorce petition on 05.11.2009 at Superior Court, Family Law Court Operation, Orange county California, USA and the same was decreed on 01.12.2010. The decree of divorce was valid unless it was challenged in the Indian courts.
The decree of divorce attained finality as the 1st petitioner had not challenged it. The 2nd respondent filed divorce petition on the ground of irreconcilable differences and there was no allegation of any kind, as made out in the instant complaint, which would demonstrate that the complaint was filed with malafide intentions and lacked merits.
The petition filed by the 2nd respondent before the Superior Court, USA would bear the date 05.10.2008 as the date of separation from ::6::
Dr.GRR,J crlp_5054_2011 the 1st petitioner. The complaint filed with CBCID at Hyderabad would bear the date as 11.05.2010 which would show that there was a delay of about 2 years in filing the complaint, which was an afterthought and done with an ulterior motive to wreck vengeance due to personal grudges. The 2nd respondent instead of filing complaint with the local police directly filed complaint with CBCID, Hyderabad.
The CBCID without considering the point of jurisdiction registered the case. The 2nd respondent had not come with clean hands and she suppressed the material facts in her complaint as well as in 161 Cr.P.C. statement that before approaching them she had filed a no fault petition for dissolution of marriage under irreconcilable differences at Superior Court, USA on 05.11.2009 and prayed to quash the case against the petitioners 1 and 3 in CC No.907 of 2010 on the file of XIII Additional Chief Metropolitan Magistrate (Mahila Court), Hyderabad.
7. The learned Assistant Public Prosecutor submitted that there was a prima facie case against the petitioners as per the charge sheet filed by the Deputy Superintendent of Police CID, WPC, Hyderabad and also the statements of witnesses recorded under Section 161 Cr.P.C. for the offences registered against the petitioners under ::7::
Dr.GRR,J crlp_5054_2011 Sections 498-A, 406, 325 IPC and Sections 3, 4 and 6 of DP Act and prayed to dismiss the petition.
8. The learned counsel for the 2nd respondent contended that as per the grounds raised by the petitioners in the criminal petition itself, the petition filed by the 2nd respondent was decreed on 01.12.2010 i.e. subsequently after lodging the report by the 2nd respondent to the Additional DGP, CID, Hyderabad on 11.05.2010, as such, the contention raised by the learned counsel for the petitioners about suppression of fact of grant of divorce by the 2nd respondent was not correct. The list of gold and silver ornaments which were entrusted to the petitioners was also given by the 2nd respondent along with the complaint to the police which was there in page No.10 of the petition book. The CBCID investigating a case for the offence under Section 498-A IPC was not a rare phenomenon and prayed to dismiss the petition filed by the petitioners.
9. Perused the record. The main contention of the learned counsel for the petitioners was that no part of cause of action took place in Hyderabad, the petitioners were residents of New Delhi and the 2nd respondent was a resident of USA even by the date of their marriage.
::8::
Dr.GRR,J crlp_5054_2011 The 2nd respondent resided with the petitioner only for a short period. Even as per the complaint filed by the 2nd respondent the marriage was held on 13.12.2006 and after the marriage, the 1st petitioner and the 2nd respondent left for Honeymoon to Mauritius and reception took place at New Delhi on 24.12.2006 and both the 1st petitioner and the 2nd respondent left to USA on 11.01.2007. Subsequently, also no cause of action took place at Hyderabad. The 2nd respondent in her complaint stated that, she came to India in the month of June, 2007 and stayed with the family of the 1st petitioner at New Delhi only for a short period and left to USA and that she returned to Delhi in February, 2008 when her father in law expired. The 2nd respondent stayed only for a short period with the family of the petitioners in India that too in New Delhi. No cause of action took place at Hyderabad to lodge the complaint at Hyderabad and that too with CID police. There was no such procedure that CID Police had to investigate the matter and no explanation or no reason was given for CID Police investigating the matter and relied upon the judgment of the High Court of A.P. in T. Balaji Rao v. State of A.P. and others1, wherein it was held that: 1
2006 (1) ALD Cri 725 ::9::
Dr.GRR,J crlp_5054_2011 "If no cause of action relating to offence arises within territorial jurisdiction of Court, then Court cannot punish person for that offence."
10. He relied upon the judgment of the Hon'ble Apex Court in Y. Abraham Ajith and others v. Inspector of Police, Chennai and another2, wherein it was held that:
"While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 CrPC, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression not really make the position different. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; group of operative facts giving rise to one or more basis for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. Thus, it consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, 2 2004 (8) SCC 100 ::10::
Dr.GRR,J crlp_5054_2011 which is necessary to prove such fact, comprises in "cause of action"".
11. As per the complaint filed by the 2nd respondent, she was a resident of F. No.G-1, Suresh Residency, Ferozguda, Hyderabad. Her parents would reside at Hyderabad, she pursued her studies at Hyderabad and the marriage took place at Marvel Pavilion, Secunderabad. The Hon'ble Apex Court in Rupali Devi v. State of U.P.3, held that:
"Even in cases where there is no allegation of harassment or demand of dowry at the parental place of the complainant, the complainant who come to take refuge at her parental place, she could lodge FIR in the said police station, which can be investigated by the Officer of the said police station and the trial court having jurisdiction on the said police station would have jurisdiction to try the said case."
12. In Priti Kumari v. the State of Bihar and others4, the Hon'ble Apex Court held that:
"The courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code."
3
2019 (5) SCC 384 4 Crl.A.No.1387/2019 dated 13.09.2019 ::11::
Dr.GRR,J crlp_5054_2011
13. Thus, as per the latest judgments of the Hon'ble Apex Court, the place where the wife resides after leaving the matrimonial home will have jurisdiction to entertain the complaint under Section 498-A IPC. The 2nd respondent was doing a job in USA, but her parents are residing at Hyderabad and the marriage of the petitioner No.1 and respondent No.2 also took place at Hyderabad. After disputes with her husband, she lodged the complaint at Hyderabad while staying with her parents at Hyderabad. Hence, the courts at Hyderabad are also having jurisdiction to entertain the complaint under Section 498- A IPC. As such, this Court does not find any merit in the contention of the learned counsel for the petitioners that there was no territorial jurisdiction for the court to take cognizance of the offence to deal with the matter.
14. The other contention taken by the learned counsel for the petitioners was that the charge sheet or the statements of the witnesses would not reflect the list or items which were entrusted to the petitioner, except a vague word that gold and silver ornaments were taken away, the 2nd respondent stated in her report that at the time when her father in law expired, she returned to Delhi in February, 2008 and during her stay her mother in law had taken all her jewellery ::12::
Dr.GRR,J crlp_5054_2011 (gold and silver ornaments) on the pretext of keeping them in safe custody and did not return to her, but had not given the descriptive particulars of the gold or silver ornaments and relied upon the judgment of the Hon'ble Apex Court in Varala Bharath Kumar and Ors. V. State of Telangana and Ors.5, wherein it was held that:
"9. The ingredients of criminal breach of trust are also not forthcoming from the records as against the appellants. The allegations contained in the complaint and the charge sheet do not satisfy the definition of criminal breach of trust, as contained in Section 405 of the I.P.C. In view of the blurred allegations, and as we find that the complainant is only citing the incidents of unhappiness with her husband, no useful purpose will be served in continuing the prosecution against the appellants. This is a case where there is a total absence of allegations for the offences punishable under Section 498A and Section 406 of the I.P.C. In the matter on hand, the allegations made in the First Information Report as well as the material collected during the investigation, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute the offences punishable under Section 498A and 406 of the IPC against the accused/appellants. So also the uncontroverted allegations found against the appellants do not disclose the commission of the offence alleged and make out a case against the accused. The proceedings initiated against the appellants are liable to be quashed."
15. He also relied upon the judgment of the Hon'ble Apex Court in Neelu Chopra v. Bharti6, wherein it was held that:
"6. The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery 5 AIR 2017 SC 4434 6 (2009) 10 SCC 184 ::13::
Dr.GRR,J crlp_5054_2011 articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them."
16. The 2nd respondent in the present case had specifically stated in her complaint about the 2nd petitioner (mother in law), taking her jewellery (gold and silver items) on the cause of keeping them in safe custody and did not return to her and she also enclosed the list of gold and silver items entrusted to the petitioners in her complaint. She specifically stated about 28 items in the said list by giving their descriptive particulars as:
List of Gold and Silver items:
1. Two Silver plates, two silver glasses, two silver bowls, two silver spoons, one kalash and silver coconut- amounting to 2 kgs of Silver.
2. One gold ring for Abhishek -20 gms.
3. One gold sovereign 8 gms.
4. One Silver glass - 500 gms
5. One Silver coin 20 gms.
6. One gold Ring 20 gms. 7. One diamond ring for Abhishek 25 gms. worth Rs. 40,000/-.
8. One gold chain 35 gms.
9. Two gold sovereign 8 gms each.
10. One silver plate, two bowls, one glass and spoon - amounting to 2 kgs of Silver.
::14::
Dr.GRR,J crlp_5054_2011
11. Silver coins to all relatives/baraatis 20 gms. Each- 50 coins total 12.
12. One Gold set with bangle 140 gms.
13. One pearl set with bangles.
14. One kundan set with bangles - 90 gms.
15. One gold chain with earrings, pendant and four bangles 16. Four gold sets (necklace and earrings)- 80 gms.
17. One pearl set (necklace and earrings) 18. One gold chain and earrings - 30 gms.
19. One set of Silver anklets 500 gms.
20. One silver set of anklets 60 gms.
21. Six sets of silver toe rings-20 gms
22. Silver keychain-20 gms 23. Silver lamps - 30 gms.
24. Two Silver plates, two bowls, two glasses, two spoons and kalash - 2kgs.
25. One Gold sovereign 8 gms.
26. One set silver pancha patra - 150 gms.
27. One silver itradaan - 10 gms.
28. One silver gulab daan - 10 gms.
Thus, the contention of the learned counsel for the petitioners in this regard does not hold valid.
17. The other contention taken by the learned counsel for the petitioner was that the 2nd respondent filed divorce petition before the Superior Court, Family Law Court Operation, Orange County, California, USA on 05.11.2009 and the same was decreed on 01.12.2010. She filed divorce petition on the ground of irreconcilable differences and no allegations of any kind as made out in the instant complaint were made by the 2nd respondent in the said petition. The complaint was filed on 11.05.2010 with a delay of two year after filing ::15::
Dr.GRR,J crlp_5054_2011 the divorce petition in the court of USA on 05.10.2008, as such, the present complaint was an afterthought and filed with an ulterior motive to wreck vengeance due to personal grudges and she also failed to state about divorce petition filed by her in the present complaint and relied upon the judgment of the High Court of the Madras in Arun Kumar v. The State and Ors.7, wherein it was held that:
"17. On perusal of the petition filed by the second respondent in H.M.O.P. No. 504 of 2017 for restitution of conjugal rights, she stated that only because of the parents of the petitioner herein, there was misunderstanding between them. She further stated that there is no difference of opinion whatsoever between the petitioner and the second respondent and their separation was not on account of them and it is because of her in laws. Therefore the present impugned proceeding is nothing but after thought and it is clear abuse of process of law. After filing the divorce petition, restitution of conjugal rights petition and also the domestic violence complaint, the present complaint has been lodged by the second respondent. Therefore it is nothing but only to wreck vengeance as against the petitioner, the complaint has been lodged by the second respondent."
18. On a perusal of the record, the 2nd respondent filed the divorce petition on 05.10.2008 and the said court decreed the divorce on 01.12.2010. The present complaint was filed by the 2nd respondent on 11.05.2010 i.e. prior to granting the decree of divorce on 01.12.2010. Thus, the contention of the learned counsel for the petitioners that the 7 MANU/TN/5440/2020 ::16::
Dr.GRR,J crlp_5054_2011 2nd respondent suppressed the fact of granting of divorce in the said complaint is not valid, as no divorce was granted by that date and the marital relationship between them was subsisting as on the date of lodging the report. Hence, this Court does not find merit in the contention of the learned counsel for the petitioner that the complaint was filed by the 2nd respondent suppressing the fact of grant of divorce in USA.
19. The learned counsel for the petitioners contended that the allegations against the petitioners 2 and 3 were vague and there were no specific allegations regarding demand of dowry and cruelty against them and no specific overt acts were attributed to them and relied upon the judgment of the Hon'ble Apex Court in Preethi Gupta and another v. State of Jharkhand and another8, wherein it was held that:
"33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been 8 2010 (7) SCC 667 ::17::
Dr.GRR,J crlp_5054_2011 living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. Such allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."
20. On a perusal of the charge sheet and the 161 Cr.P.C. statements of the witnesses, it would disclose that there were prima facie allegations against the 1st petitioner-A1 about the harassment caused by him to the 2nd respondent due to which she was constrained to report to the police at USA in July, 2007 and the 2nd respondent also stated that the 1st petitioner abused and beat her several times due to which she also sustained a herniated disc in the spine and was bed ridden for few months and she lost her job also. The complaint also would disclose that she made allegations against the 2nd petitioner, her mother-in-law, for taking all her jewellery on the guise of keeping them in safe custody and not returning them to her, due to which a charge under Section 406 IPC was also filed against the petitioners. Hence, the petition cannot be quashed against petitioners No.1 and 2, as there were prima facie allegations found against them for the ::18::
Dr.GRR,J crlp_5054_2011 offences under Sections 498-A, 406 IPC and Sections 3, 4 and 6 of DP Act. However, as the petitioner No.1 died, the case against her would be abated.
21. The 2nd respondent alleged in her complaint against the 3rd petitioner, her brother-in-law, that he was associated with press and media and threatened her that he would launch a character assassination campaign against her and her parents to defame them in the Society. But, there is no charge for the offence under Section 506 IPC or for defamation. There were no allegations of Section 498-A, 406 IPC and 3, 4 and 6 of DP Act against the 3rd petitioner-A3. Hence, it is considered fit to quash the proceedings in CC No.907 of 2010 against the 3rd petitioner-A3.
22. In the result, the Criminal Petition is partly allowed quashing the proceedings in CC No.907 of 2010 against the petitioner No.3 - A3 only. The petition is dismissed against the 1st petitioner - A1. As the learned counsel for the petitioners had reported about the death of the 2nd petitioner - A2 orally only, but not filed her death certificate before this Court, the petitioners are directed to file the ::19::
Dr.GRR,J crlp_5054_2011 death certificate of the 2nd petitioner - A2 before the trial court, so that the case could be closed against her as abated.
Pending miscellaneous petitions, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J October 18, 2022 KTL