HONOURABLE JUSTICE G. SRI DEVI
WRIT PETITION No.13309 of 2016
ORDER:
This Writ Petition is filed under Article 226 of the Constitution of India seeking a Writ of Certiorari calling for records relating to Crime No.76 of 2016 on the file of Women Police Station, Begumpet, Hyderabad (6th respondent herein) and to quash the same.
The averments made in the affidavit filed in support of the writ petition are that the marriage between the 1st petitioner and the 8th respondent herein was solemnized on 12.08.2000 and out of marriage, they were blessed with a son namely T.Suryansh Goud on 15.08.2004; that the 8th respondent abandoned the matrimonial home creating several inter se disputes and, therefore, the 1st petitioner filed F.C.O.P.No.220 of 2012 before the Family Judge, City Civil Court, Secunderabad, seeking divorce on the ground of cruelty and adultery etc., After receiving the notice in the said F.C.O.P.No.220 of 2012, the 8th respondent lodged a written complaint, dated 16.04.2012, against the 1st petitioner and his parents, which was registered as a case in Crime No.56 of 2012 of Women Police Station, Begumpet, for the offences punishable under Section 498-A, 323 of I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961 and he was initially granted interim order of not to arrest pending disposal of the anticipatory bail petition filed by him and during the pendency of the anticipatory bail petition, this Court conducted 2 GSD, J Wp_13309_2016 reconciliation proceedings since the 8th respondent has appeared in person and opposed the anticipatory bail and that all the efforts for reconciliation failed and thereafter this Court granted anticipatory bail to the 1st petitioner. The 8th respondent filed a counter along with counter-claim in F.C.O.P.No.220 of 2012. Thereafter, the 1st petitioner filed I.A.No.54 of 2015 to implead Kutadi Srinivas and others as party respondents in F.C.O.P.No.220 of 2012 and the same was ordered vide orders dated 14.03.2016. It is further stated that on 19.07.2015, the 8th respondent was admitted in Yashoda Hospital, Secunderabad, as an inpatient vide I.P.No.276858, wherein it is mentioned that the said K.Srinivas is the husband of the 8th respondent. Thereafter, the 1st petitioner filed I.A.No.509 of 2015 in I.A.No.54 of 2015 in F.C.O.P.No.220 of 2012 for summoning the entire medical record of the 8th respondent with I.P.No.276858 and the 8th respondent filed counter affidavit and opposed the I.A. Thereafter, the 8th respondent herein filed I.A.No.575 of 2015 seeking appointment of an expert to inspect the server of Yashoda Hospital and to examine the server to the extent of entries pertaining to the admission and her treatment with I.P.No.276858 and to ascertain whether there are any modifications/tampering/manipulation of records, subsequent to her admission on 19.07.2015 and the same was allowed on 19.08.2015. On 14.09.2015, the learned Family Judge dismissed I.A.No.509 of 2015 filed by the 1st petitioner. Aggrieved 3 GSD, J Wp_13309_2016 by the same, the 1st petitioner filed C.R.P.No.5089 of 2015 before this Court and by an order, dated 26.02.2016, this Court allowed the said C.R.P. It is further stated that on receipt of the notice in F.C.O.P., the 2nd respondent therein filed counter. It is also stated that the counter-affidavit filed by the 8th respondent and the counter filed by the 2nd respondent in F.C.O.P.No.220 of 2012 are inconsistent to each other, while the 8th respondent claims that she does not know the 2nd respondent in F.C.O.P.No.220 of 2012, but the 2nd respondent claimed to be their family friend and well known to the parents of the 8th respondent for the last 35 years. The discharge summary issued to the 8th respondent, dated 21.07.2015, clearly shows that she is the wife of K.Srinivas. Therefore, the 1st petitioner lodged a complaint before the police, Alwal Police Station, which was registered as a case in Crime No.352 of 2014 for the offences punishable under Sections 494, 506, 504 and 420 I.P.C and the said complaint was closed on the ground of civil in nature, which is unauthorized, illegal and ab initio void.
It is also stated in the affidavit that the 8th respondent lodged a complaint, dated 13.04.2016, against the petitioners and another, before the Women Police Station, Begumpet, which was registered as a case in Crime No.76 of 2016 for the offences punishable under Sections 494, 506 and 109 of I.P.C. It is further stated that the said complaint is filed as a counter blast to Ex.A33-medical record of 4 GSD, J Wp_13309_2016 Yashoda Hospital, which was marked in F.C.O.P.No.220 of 2012. The 8th respondent is habituated to file false criminal complaints not only against the 1st petitioner but also against his junior advocate colleagues. A perusal of the allegations made in the complaint, dated 13.04.2015, does not fulfill the ingredients of the offences alleged against the petitioners herein and, therefore, the present Writ Petition is filed.
Notice sent to the 8th respondent by "Registered Post with Acknowledgment Due" was returned as un-claimed. Taking it as deemed service in view of the provisions of General Clauses Act, the present Writ Petition is disposed of after hearing Sri Ashok Anand Kumar, learned Counsel appearing for the petitioners, learned Government Pleader for Home, appearing for respondents 1 to 7 and perused the record.
Reiterating the averments made in the affidavit, learned Counsel appearing for the petitioners would submit that the 1st petitioner herein filed F.C.O.P.No.220 of 2012, seeking divorce and after receiving the summons in the said F.C.O.P., the 8th respondent herein lodged a complaint on 16.04.2012, against the petitioners, which was registered as a case in Crime No.56 of 2012 of Women Police Station, Begumpet for the offences punishable under Sections 498-A, 323 I.P.C. and Sections 4 and 6 of Dowry Prohibition Act. 5
GSD, J Wp_13309_2016 After completion of investigation, the police filed charge sheet, which was taken cognizance as C.C.No.349 of 2012. While the said C.C. was pending, the parents of the 1st petitioner herein expired. Even after specific directions of this Court for disposal of C.C.No.349 of 2012, the 8th respondent was not proceeding with the trial. He further submits that the Family Court granted divorce and aggrieved by the same, the 8th respondent filed Family Court Appeal No.172 of 2017 before this Court, which was dismissed for default. He further submits that the 1st petitioner filed Crl.P.No.2461 of 2020 for quashing the proceedings in C.C.No.349 of 2012 and by an order, dated 09.11.2020, this Court allowed the said petition and quashed the proceedings against the 1st petitioner. He also submits that while the trial in F.C.O.P.No.220 of 2012 was going on, the 8th respondent made a second complaint, which was registered as a case in Crime No.76 of 2016 for the offences punishable under Sections 494, 506 and 109 of I.P.C. Since the 8th respondent had filed the said false complaint, while she was leading adulterous life with Kutadi Srinivas, having married him much prior to F.C.O.P.No.220 of 2012 itself, which was proved by Ex.A33-Medical record of Yashoda Hospital, dated 19.07.2015, the 1st petitioner along with his father filed the present W.P.No.13309 of 2016 seeking to quash the proceedings in Crime No.76 of 2016 and this Court granted interim stay of all further proceedings in the said crime. He further submits 6 GSD, J Wp_13309_2016 that the 8th respondent had neither appeared in the matter nor filed any counter, nor sought for vacating the interim order granted by this Court on 20.04.2016. Learned Counsel also submits that the 1st petitioner filed I.A.No.1 of 2021 in the said Writ Petition to receive the copy of common judgment and decree in F.C.O.P.No.220 of 2012, certified copy of Ex.A33 i.e., medical record of the 8th respondent, orders passed in Crl.P.Nos.348 of 2014 and 2461 of 2020 along with bunch of photographs uploaded by the 8th respondent on her Facebook account, which clearly show that she is living with her husband Kutadi Srinivas. He further submits that the 1st petitioner had lost his parents due to the harassment made by the 8th respondent and also lost his 14 years of precious life. In support of his contentions, he relied upon the following judgments:
1. Darla Srinivas v. Darla Sri Devi1
2. D.Venkata Rajam @ Venkaiah and others v. State of A.P.2
3. State of Haryana v. Bhajan Lal3
4. Dharshanala Dayanand and others v. Vajjala Swapna and another4
5. Vankina Chamundeswaranath v. S.H.O.
Nagarampalem L & O P.S. Guntur and another5,
6. Smt. Satyavathi v. State of A.P. and another6 1 1999 (2) ALD (Cri) 951 2 (2019) 2 ALT (Cri) 269 3 (1992) SCC (Cri) 426 4 (2019) 1 ALT (Cri) 462 5 (2010) 3 ALT (Cri) 321 6 (2006) 2 ALT (Cri) 350 7 GSD, J Wp_13309_2016
7. Kapil Agarwal and others v. Sanjay Sharma and others7 In State of Haryana v. Bhajan Lal (3 supra) in which the Apex Court has laid down the following guidelines.
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.7
(2021) SCC Online SC 154 8 GSD, J Wp_13309_2016
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155 (2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In the instant case, a perusal of the material available on record would show that admittedly, this is the second complaint filed by the 8th respondent herein against the petitioners and another. On a careful reading of the allegations made in the complaint, no allegation whatsoever in relation to the offences under Sections 506 and 109 of I.P.C. are made out against the 1st petitioner. Further, the allegations made in the impugned F.I.R. are almost similar to the allegations made in Crime No.56 of 2012 of Women Police Station, Begumpet, Hyderabad, wherein the police filed charge sheet before the XV Additional Chief Metropolitan 9 GSD, J Wp_13309_2016 Magistrate, Nampally, Hyderabad, against the petitioners and the same was taken cognizance as C.C.No.349 of 2012. The record further discloses that by an order, dated 09.11.2020, this Court quashed the proceedings against the 1st petitioner vide Crl.P.No.2461 of 2020.
So far as the offence under Section 494 of I.P.C. is concerned, in Smt. Satyavathi v. State of A.P. and another (6 supra), this Court held as under:-
"The charge-sheet filed as against the petitioner/A-2 in relation to the offence under Section 494 IPC cannot be sustained in the light of the clear language of Section 198 of the Code. In D.Vijaya Lakshmi v. D. Sanjeeva Reddy 2000 (2) ALT 136 (A.P.), it was held that the Court is precluded from taking cognizance of the offence under Section 494 I.P.C though the investigating agency can register a case and investigate into the offence and the bar is for the Court and not for the investigating agency and, hence, taking cognizance of the case was held to be bad. Hence, so far as the charge under Section 494 IPC as against the petitioner A-2 is concerned, the same cannot be further proceeded with and taking cognizance of the case on the strength of either police report or charge-sheet cannot be sustained.
7. Certain submissions were made in relation to the definition of "complaint". Section 2 of the Code deals with definitions and Section 2(d) specifies:
In this Code, unless the context otherwise requires "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report.10
GSD, J Wp_13309_2016 Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant, The words "the police officer by whom such report is made shall be deemed to be the complainant" no doubt would assume some importance. On the strength of the same, certain submissions were made that this can be treated as a private complaint and having been made by the 2nd respondent de facto complainant further proceedings may be proceeded with. This Court is not inclined to accept the same since the very cognizance was taken on the strength of the charge-sheet."
In order to make out an offence under Section 494 of I.P.C., the complaint should prima facie disclose that during the subsistence of the marriage the husband or wife has entered into another marriage. In the instant case, the only allegation levelled against the 1st petitioner is that he developed illegal contacts with one Deepika (Accused No.2) and begotten a female child from her. The specific stand taken by the 1st petitioner is that he does not know the person by name Deepika. A perusal of the complaint reflects that there is not even an allegation of a second marriage by the 1st petitioner. That apart, the complaint cannot be proceeded with further and even if any charge sheet is filed by the police, the same cannot be taken cognizance by the Magistrate in view of the bar under Section 198 of Cr.P.C. Hence, there is no supporting material in proof of the basic fact constituting an offence punishable under Section 494 of I.P.C. As far as the other offences under Sections 506 and 109 of 11 GSD, J Wp_13309_2016 I.P.C. are concerned, as already observed supra, absolutely there are no allegations against the 1st petitioner.
In view of the aforesaid discussion, I find that it is a fit case to quash the proceedings against the 1st petitioner in Crime No.76 of 2016 of Women Police Station, Begumpet, Hyderabad.
Accordingly, the Writ Petition is allowed and the proceedings against the 1st petitioner in Crime No.76 of 2016 of Women Police Station, Begumpet, Hyderabad, are hereby quashed. Since the 2nd petitioner died during the pendency of the writ petition, the Writ Petition is closed in so far as the 2nd petitioner is concerned.
Miscellaneous applications, if any, pending shall stand dismissed.
____________________ JUSTICE G. SRI DEVI 24.08.2021 Gsn/gkv