HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Criminal Petition Nos.4512 & 4976 of 2019
ORDER:
A brief conspectus of facts is necessary for disposal of these two criminal petitions.
2. The 1st petitioner married the 2nd respondent (hereinafter referred to as 'the complainant') on 18.02.2009 at Annavaram, East Godavari District, in the presence of the parents of the complainant. Subsequently, the parents of the 1st petitioner were informed about the marriage and a second marriage ceremony was again performed at the house of the parents of the 1st petitioner on 06.08.2009 in Vinjamuru, Nellore District. After the marriage, performed on 18.02.2009, both the 1st petitioner and the complainant shifted to the United Kingdom and worked there. On 05.01.2011 the complainant gave birth to a girl child in the United Kingdom. Thereafter, the family shifted to the United States of America where a second girl was born on 12.05.2013. The first complaint, regarding the disputes between the 1st petitioner and the complainant, came to be filed in United States by the complainant to the police in San Diego, California in United States, in the year 2016. This complaint was a case of domestic violence against the 1st petitioner, which resulted in conviction of the 1st petitioner.
3. On 22.02.2017, the 1st petitioner filed for legal separation from the complainant in the superior Court in San Diego, California. The complainant filed for divorce before the family Court, Visakhapatnam in June 2018, which was subsequently withdrawn on 01.04.2019. The complainant also filed a Domestic Violence Case in the superior Court San 2 RRR,J Crl.P.Nos.4512 & 4976 of 2019 Diego, California on 14.02.2018 and an application for divorce on 01.03.2018 in the superior Court at San Diego, California. The 1st petitioner, in turn, filed an application for child custody and visitation of his two daughters before the superior Court in San Diego, California on 14.05.2018. On 19.09.2019 the superior Court San Diego, California dissolved the marriage between the 1st petitioner and the complainant and settled all the issues relating to the division of property etc. However, custody and visitation rights of the children had not been settled.
4. While these cases were pending, the complainant filed F.I.R.No.17 of 2019 on 12.01.2019 before the Women Police Station, Visakhapatnam against the petitioners herein. The accused No.1 is the petitioner-husband, accused No.2 is the father of the 1st petitioner, accused No.3 is the mother, accused No.4 is the brother and accused No.5 is the sister-in-law of the 1st petitioner being the wife of the accused No.4. After investigation, a charge sheet was filed on 09.02.2019 and the case was taken up as C.C.No.816 of 2019 in the Court of the I Additional Chief Metropolitan Magistrate, Visakhapatnam. The complainant had also filed a Domestic Violence Case before the Family Court-cum-IV Additional Chief Metropolitan Magistrate, Visakhapatnam bearing D.V.C.No.46 of 2019 on 15.02.2019. A Non Bailable Warrant was also issued against the 1st petitioner.
5. The petitioners have now filed Criminal Petition No.4512 of 2019 to quash the charge sheet in C.C.No.816 of 2019 as well as the order of the I Additional Chief Metropolitan Magistrate, Visakhapatnam, dated 07.03.2019 taking cognizance and issuing summons to petitioners 2 to 5 while issuing Non-Bailable Warrants to the petitioner in C.C.No.816 of 2019.
3 RRR,J Crl.P.Nos.4512 & 4976 of 2019
6. The petitioners have filed Criminal Petition No.4976 of 2019 to quash the proceedings in D.V.C.No.46 of 2019 on the file of the IV Additional Chief Metropolitan Magistrate, Visakhapatnam.
7. The contention of the petitioners in Criminal Petition No.4512 of 2019 is that the charge sheet does not make out any prima facie case against the 1st petitioner for the offences under Section 498-A IPC and Sections 3 & 4 of the Dowry Prohibition Act, 1961 as no specific overt acts have been attributed to the petitioners; that in any event no offence is made out; that the police at Visakhapatnam do not have jurisdiction to register F.I.R and investigate the case and file charge sheet; that in view of the closure of proceedings between the 1st petitioner and the complainant in the superior Court at San Diego, California, no issues remain between the parties; that the proceedings in the United States would show that no such complaint of demand of dowry or harassment of dowry had been made earlier and these complaints are being made only for the purpose of filing a false case at Visakhapatnam to coerce the 1st petitioner and his family members to agree to her terms; that the investigating officer did not consider any of the documents produced by petitioners 2 to 5 about the proceedings pending before the Court in San Diego, California and the charge sheet was filed by the investigating officer and the learned Magistrate had taken cognizance of the case mechanically; that since separation and divorce cases between the 1st petitioner and the complainant were pending before the Court at the time of the filing of the present petition, the disputes between them would have to be resolved in the Court at United States and that the original complaint and the subsequent charge sheet would have to be discarded and quashed.
4 RRR,J Crl.P.Nos.4512 & 4976 of 2019
8. The petitioners, in Criminal Petition No.4976 of 2019 and Criminal Petition No.4512 of 2019 being the same, they essentially raised the same issues before this Court.
9. Sri Sricharan Telaprolu, learned counsel for the petitioners reiterates the contentions in the Criminal Petitions and prays for quashing of the proceeding in the said criminal cases. He submits that on account of the pending proceedings relating to the custody of the children and visitation rights to the children the complainant continues to prosecute the case for arm twisting the 1st petitioner according to settle the issues relating to custody and visitation rights of the children on her terms.
10. Sri V.S.R. Anjaneyulu, learned counsel appearing for the de facto complainant would submit that Criminal Petition No.4976 of 2019 is not maintainable as a Domestic Violence Case cannot be quashed under Section 482 Cr.P.C. He further submits that even Criminal Petition No.4512 of 2019 is not maintainable and relies upon the judgment of the Hon'ble Supreme Court in Rakhi Mishra v. State of Bihar and Ors.1. He further submits that the non-bailable warrants issued against the petitioners are still pending and as such a person, who does not submit himself to the jurisdiction of the Courts at India, should not be given any indulgence. He further submits that the de facto complainant has made detailed allegations against the petitioners and in such a situation this Court would not interfere in the course of trial as the de facto complainant has made out a prima facie case attracting the charges of Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act.
1
AIR 2017 SC 4019
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Crl.P.Nos.4512 & 4976 of 2019
CONSIDERATION OF THE COURT
Crl.P.No. 4976 of 2019.
11. The prayer in this petition is to quash D.V.C. No.46 of 2019 in the Family Court-cum-IV Additional Chief Metropolitan Magistrate, Visakhapatnam. The relief sought in the said D.V.C. is payment of various sums of money. Sri V.S.R. Anjaneyulu would submit that an application to quash a Domestic Violence Case under Section 482 of Cr.P.C., is not maintainable. A learned Single Judge of this Court dealt with this issue in the case of Giduthuri Kesari Kumar and Ors., v. State of Telangana and Ors.2, and after a review of the law on the said issue had held that petitions under Section 482 of the Criminal Procedure Code cannot be filed for quashing Domestic Violence Cases, except in exceptional circumstances. The operative portion of the said judgement reads as follows:
"14) To sum up the findings:
i) Since the remedies under D.V Act are civil remedies, the Magistrate in view of his powers under Section 28(2) of D.V Act shall issue notice to the parties for their first appearance and shall not insist for the attendance of the parties for every hearing and in case of non-appearance of the parties despite receiving notices, can conduct enquiry and pass exparte order with the material available. It is only in the exceptional cases where the Magistrate feels that the circumstance requires that he can insist the presence of the parties even by adopting coercive measures.
ii) In view of the remedies which are in civil nature and enquiry is not a trial of criminal case, the quash petitions under Sec. 482 Cr.P.C on the plea that the petitioners are unnecessarily 2 2015 (2) ALD (CRL) 470 6 RRR,J Crl.P.Nos.4512 & 4976 of 2019 arrayed as parties are not maintainable. It is only in exceptional cases like without there existing any domestic relationship as laid under Section 2(f) of the D.V. Act between the parties, the petitioner filed D.V. case against them or a competent Court has already acquitted them of the allegations which are identical to the ones levelled in the Domestic Violence Case, the respondents can seek for quashment of the proceedings since continuation of the proceedings in such instances certainly amounts to abuse of process of Court."
Crl.P.No. 4512 of 2019
12. The Hon'ble Supreme Court in the case of Amit Chopra Vs. State of Uttar Pradesh in Criminal Appeal No. 597 of 2019, decided on 30.04.2019, had considered a similar situation. The Hon'ble Supreme Court considered the following judgments, which had considered the scope of applications under Section 482 of Cr.P.C.
i) Rakhi Mishra v. State of Bihar and Ors.,3
ii) Sonu Gupta v. Deepak Gupta4
iii) K Subba Rao & Ors., v. State of Telangana5
iv) State of Haryana v. Bhajanlal6
v) Vinit Kumar & Ors., v. State of Uttara Pradesh and Anr.,7
13. Thereafter, the Hon'ble Supreme court went into the facts of the case, which are similar to the present facts. In the case before the Hon'ble Supreme Court, the husband and wife were living in the United States and had separated. Divorce proceedings were already initiated between them when a complaint under section 498-A IPC was filed by the 3 (2017) 16 SCC 772 4 (2015) 3 SCC 424 5 (2018) 14 SCC 452 6 (1992) Supplement-1 8 SCC 335 7 (2017) 13 SCC 369 7 RRR,J Crl.P.Nos.4512 & 4976 of 2019 father of the wife as the agent of the wife. The divorce proceedings ended, during the pendency of the complaint, with a settlement of all the issues between them including alimony, division of property, mutual release of claims, etc., The contents of the complaint showed general sweeping statements such as " they started harassing the daughter of the Applicant demanding additional dowry of one Crore". In view of the pleadings and facts, the Hon'ble Supreme Court had held that category 7 set out in State of Haryana v. Bhajanlal (6 supra) would be applicable to the case, and quashed the Complaint.
14. In the complaint filed by the complainant on 12.01.2019 the allegations made against the respondents were -
A) The First marriage was performed on 18.02.2009 secretly and only after her father gathered Rs.50 lakh dowry, 48 Tulas of gold including a Gold Vaddanam an open second ceremony of marriage was performed on 06.08.2009;
B) The First daughter was born on 05.01.2011, the date of birth was fixed by father-in-law (A.2) and she was made to go through painful procedures;
C) During stay in Vinjamuru after birth of child, she was tortured by A.2 to A.5 for not giving birth to a male child;
D) Husband (A.1) and in-laws (A.2 and A.3) harassed her parents for more dowry so she worked;
E) Father-in-law (A.2) attacked her daughter and fractured her arm and brother-in-law and sister-in-law (A.4 and A.5) were aggressive;
F) Husband (A.1) was violent and beat her and throttled her throat. In one such instance in United States of America when her 8 RRR,J Crl.P.Nos.4512 & 4976 of 2019 brother-in-law & sister-in-law (A.4 and A.5) were there she complained to the police. Husband was arrested;
G) Husband sexually assaulted by threatening to abuse daughter;
H) Dowry demands were made continuously and Husband took away all the money. The parents of the husband made threatening calls and the father-in-law (A.2) assaulted the father of the complainant on a visit to Visakhapatnam;
I) In United States of America she was held hostage and not allowed to travel to India; and J) Second daughter born on 12.05.2013 required passport renewal which was not allowed as husband was not consenting.
15. In the charge sheet the alleged assault by the father-in-law (A.2) on the elder daughter of the complainant is given up and it is stated that the elder daughter sustained fracture due to negligence of the in-laws of the complainant. Similarly, the alleged attack on the father of the Complainant, in Vishakhapatnam, is also given up. As far as A.2 is concerned, the allegations against him are general in nature except an allegation that the "accused" quarrelled with the father of the complainant that he had not given the money as demanded. Except these allegations, there are no other specific allegations against A.2.
16. There are no specific allegations against A.3 except stating that A.3 made demands for dowry and participated in harassing the complainant along with the other accused.
17. The allegations against A.4 and A.5 are also general allegations of harassment with no specifics given except one instance.
9 RRR,J Crl.P.Nos.4512 & 4976 of 2019 This instance is said to be an assault by A.1 in the year 2016 in San Diego, California on account of instigation of A.4 and A.5. However, the statement made by the complainant in the Court at United States in relation to this incident is as follows:
"Sesi Lothugedda told me that she was in the bedroom and her husband came in and tried to pull the blanket off her. Sarath did not ask for it, he just grabbed it and Sesi held onto the blanket. Sarath told Sesi that it was colder tonight and he wanted to give his brother another blanket. Sesi got loud and started arguing with Sarath. Sarath used his hand to cover Sesi's mouth to stop her from yelling. Sarath only held it there until Sesi stopped talking.
Sesi denied telling the officers that her husband tried to strangle (smother) her, Sesi says that she knew he was only trying to quiet her down. Sarath did not want his brother, bharath and Bharath's family to know that Sesi was having a problem with them staying at the residence.
Sesi Lothugedda was not injured as a result of the incident. See the attached case report for Sesi Lothugedda's statement."
18. This is in direct contradiction to the statements made by the complainant both in her complaint as well as the statement given under Section 161 Cr.P.C. In any event, her statement before the Court at United States is a total variance with the allegation in the charge sheet.
19. In these circumstances, it must be held that general, sweeping statements are not sufficient and it would have to be held that there is no case against Accused No. 2 to 5.
20. As far as the allegations against A.1 are concerned, the complainant has made various allegations against A.1. The veracity of such allegations as well as the contradictions with her stand earlier in the 10 RRR,J Crl.P.Nos.4512 & 4976 of 2019 Court proceedings in the United States are matters which cannot be appropriately dealt with in a proceeding under Section 482 Cr.P.C., in view of the specific allegations. As far as the Non bailable Warrant, issued against the 1st petitioner, is concerned, the said issue would be left to the Trial court. However, in a connected litigation, the Complainant had obtained orders from this Hon'ble Court directing the passport officer to revoke the passport of the 1st petitioner on the ground that he was evading a non bailable warrant. The said issue is before this court in W.P.No. 16491 of 2019, which is being disposed of by way of a separate order. The issue of the Non bailable Warrant was also not preceded with knowledge to the 1st petitioner about the criminal case filed against him by the complainant. In these circumstances, it would be appropriate to set aside the non Bailable warrant.
21. For the reasons given above:
A. Criminal Petition No. 4976 of 2019 is dismissed. However, the trial judge will not insist for the attendance of the parties for every hearing and permit the case to go on in the presence of the counsel appearing for the parties.
B. Criminal Petition No. 4512 of 2019 is allowed to the extent of quashing C.C. No. 816 of 2019 on the file of the I Additional Chief Metropolitan Magistrate, Visakhapatnam as far as Petitioners 2 to 5 are concerned.
C. The NBW issued on 07-03-2019 is set aside with a direction to the accused No.1 to present himself before the trial Court within three months from today and file an application to obtain necessary orders from the trial Court regarding his future 11 RRR,J Crl.P.Nos.4512 & 4976 of 2019 appearance in the case. Upon such application being made by accused No.1, the trial Court shall consider and pass orders as to the dispensing with the appearance of accused No.1 and/or the manner of appearance of accused No.1 in the case. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ R. RAGHUNANDAN RAO, J.
12th February, 2021 Js.
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Crl.P.Nos.4512 & 4976 of 2019
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Criminal Petition Nos.4512 & 4976 of 2019
12th February, 2021
Js.