THE HONOURABLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1205 OF 2021
ORDER:
This petition is filed under Section 482 of Cr.P.C to quash the proceedings in Crime No.21 of 2021, pending on the file of P.S., Raidurgam, Cyberabad. The petitioners herein are accused Nos.1 to 4 in the said crime. The offences alleged against them are under Sections 342, 347, 504, 506, 358, 116, 384 read with 34 of IPC and under Sections 23 and 24 of Maintenance and Welfare of Parents and Senior Citizens Act, 2007.
2. The 1st petitioner is the son and the 2nd petitioner is the daughter-in-law, 3rd petitioner is granddaughter of the 2nd respondent/de-facto complainant. 4th petitioner is the father- in-law of the 1st petitioner/accused No.1. The husband of the 2nd respondent died on 24.02.2020. She has four children i.e., Shubhangi S Shah, Kishore D Doshi, Akshay D.Doshi and Sangita Gautama.
3. The allegations against the petitioners herein as per the complaint dt.17.01.2021 are as follows:
The petitioners herein have forced the 2nd respondent and her husband who are senior citizens with mental torture, threatened them by fraud scared them to sign three gift deeds with regard to her immovable properties. The details of the gift deed are specifically mentioned in the complaint. The 1st 2 petitioner has shown a knife and threatened the 2nd respondent and her husband to kill and also threatened them to commit suicide by consuming poison, if they do not sign gift deeds in respect of their properties only in his name and in the name of his daughter, though they have four children and five grand children. On some occasions, the 1st petitioner used to slap the husband of the 2nd respondent and would bang his head against the wall and shout at them using foul language for three to four hours. The 1st petitioner has even tried once to strangulate the 2nd respondent/de-facto complainant at home. The 1st petitioner scared the 2nd respondent and her husband, gave them tensions, pressurized them, forced them to go the Sub- Registrar Office and sign the gift deeds. Thus, the 1st petitioner has obtained the said four gift deeds by force, coercion, threat and by fraud. Therefore, the said gift deeds have to be cancelled.
4. The husband of the 2nd respondent also detailed some of the atrocities committed on them and the 2nd respondent in his letter dated 29.03.2019 written to the District Magistrate and Deputy Commissioner. She agreed the said letter. In the said letter, the husband of the 2nd respondent has confirmed that the petitioners made them to sign the three gift deeds and rectification deed illegally by force, coercion, threat and by fraud. Her husband has also give letter personally in her presence to her daughter Sangita Gautama (resident of USA) in January, 2020, when she visited Hyderabad to see them. Even 3 now, the petitioners 1 and 2 have hatred towards 2nd respondent and her husband and gave them lot of mental tensions.
5. After death of her husband, the petitioners 1 and 2 continued to threaten her by showing knife and threatened her to kill and commit suicide by showing rat poison that he shall consume poison, if she do not sign more papers.. Thus, the 2nd respondent was kept in confinement, not allowed to meet anybody or go anywhere. Her mobile phone was also confiscated by 1st and 2nd petitioners many times. They have not allowed the 2nd respondent to speak to her friend and to her own daughters i.e., Shubhangi & Sangeeta Gautama (resident of USA), both of whom looked after her when she has major health issues and operations. The 2nd petitioner never looked after her and she would even not give her and her younger son i.e., Akshay proper food to eat. Even recently, when the 2nd respondent has back ache, the 2nd petitioner left a hot water bag on her waist at the back and went away allowing it to burn her skin with elastic sticking to her skin. Petitioners 1 and 2 also stooped giving medicines which are prescribed by doctors to her younger son Akshay and tried to damage Akshay's health.
6. Thus, petitioners 1 and 2 stealthily taken away all their fixed deposits, cash, gold and jewellery, which they are entitled to return to her. With the said allegations, the 2nd respondent has lodged a complaint with the Police, Raidurgam, Cyberabad 4 on 17.01.2021, who in turn registered a case in Cr.No.21 of 2021 for the aforesaid offences against the petitioners herein.
7. Sri Dharmesh D.K.Jaiswal, learned counsel for the petitioners, would submit that there are property disputes between the 1st petitioner, 2nd respondent and her daughters i.e., Shubhangi & Sangeeta Gautama (resident of USA). He would further submit that the Police Raidurgam, Cyberabad have no jurisdiction to entertain the complaint and to register the said crime. It is Saifabad P.S., which is having jurisdiction. He has also relied upon the Truth Lab report and would contend that the allegations against the petitioners made by the 2nd respondent in the complaint are false and baseless. Referring to the contents of the plaint in O.S.No.283 of 2020, pending on the file of XXVI Additional Chief Judge, City Civil Court, Hyderabad, learned counsel for the petitioners would submit that the 2nd respondent, her two daughters filed the said suit against the petitioners 1 to 3 and Akshay-brother of the 1st petitioner and son of the 2nd respondent seeking partition and separate possession of the suit schedule properties therein. The said suit is pending. During the pendency of the said suit, the 2nd respondent has lodged the present complaint with a mala fide intention to implicate the petitioners herein at the instance of her daughters i.e., sisters of the 1st petitioner who are having disputes with regard to ancestral properties. By referring to the same, learned counsel for the petitioners would submit that the 2nd respondent is trying to criminalize the civil proceedings by 5 way of lodging the said complaint dt.17.01.2021 during the pendency of the civil suit vide O.S.No.283 of 2020. According to him, the contents of the complaint lack ingredients of offences alleged against the petitioners herein. He has relied on the principles laid down by the Hon'ble Apex Court in State of Haryana v. Bhajan Lal1, Prof. R.K. Vijayasarathy v. Sudha Seetharam2, Binod Kumar v. State of Bihar3, Jamila Begum v. Shami Mohd.4, M.P. Tej Babu v. State of Telangana5.
8. According to the learned counsel for the petitioners, continuation of criminal proceedings in Cr.No.21 of 2021 against the petitioners herein is an abuse of process of law and therefore the said proceedings in Cr.no.21 of 2021 are liable to be quashed by this Court by invoking its inherent powers under Section 482 of Cr.P.C.
9. Pursuant to the order dt.26.02.2021, learned counsel for the petitioners took out notice to the 2nd respondent and said cover was returned un-served with an endorsement 'door locked'. Learned counsel for th petitioners has filed a memo vide USR.No.17728 of 2021 dt.08.03.2021 along with postal tracking report. By referring to the same, learned counsel for the petitioners would submit that he has sent notice to the address of the 2nd respondent mentioned in the complaint and 1 1992 Supp (1) SCC 335 2 (2019) 16 SCC 739 3 (2014) 10 SCC 663 4 (2019) 2 SCC 727 5 (2016) SCC Online Hyd 733: (2017) 1 ALD (cri) 677 6 therefore the notice is deemed to be served on the 2nd respondent in view of the Section 27 of General Clauses Act, 1897.
10. On the other hand, learned Public Prosecutor, would submit that there are specific allegations against each of the petitioners. There are several factual aspects to be investigated into by the Investigating Officer during the course of investigation. There are specific allegations of threatening to kill the 2nd respondent with knife and attempting to kill her by strangling, by keeping hot water bag on the waist of the 2nd respondent when she got back pain. There is specific allegation that they have also stopped giving medicines to the 2nd respondent and her younger son Akshay and the 2nd petitioner has not even provided food to him. The said letter written by the husband of the 2nd respondent was specifically mentioned in the complaint. It is a matter to be investigated into by the Investigating Officer during the course of investigation. Jurisdiction aspect is also an aspect to be investigated into by the Investigating Officer during the course of investigation. In the event of lack of jurisdiction to the Investigating Officer of P.S., Raidurgam, Cyberabad in Cr.No.21 of 2021, he will send the file to the concerned P.s., which is having jurisdiction. On the ground of jurisdiction proceedings in Cr.No.21 of 2021 cannot be quashed. The said principle also laid down by the Hon'ble Apex Court. There are specific allegations that the petitioners are not taking care of welfare of the 2nd respondent, 7 mother, mother-in-law and grand mother of petitioners 1 to 3 respectively. Since the punishment for the offences alleged against the petitioners herein is seven years or below seven years, the Investigating Officer has already invoked the procedure laid down under Section 41-A Cr.P.C and issued a notice to the said effect. The petitioners have also submitted their replies. Thus, there are several factual aspects to be investigated into by the Investigating Officer during the course of investigation. Learned Public Prosecutor would further submit that during the course of investigation, if the Investigating Officer comes to a conclusion that the contents of the complaint do not constitute any offence alleged against the petitioners, he would drop the said charge against the petitioners. The petitioners herein instead of cooperating with the Investigating Officer by furnishing information and documents sought by him, approached this Court by way of filing the present petition. With the said submissions, learned Public Prosecutor sought dismissal of the present petition.
11. As stated above, prima facie, there are specific allegations against the petitioners 1 and 2 herein. The 4th petitioner is the father-in-law of the 1st petitioner and father of the 2nd petitioner in the complaint dated 17.01.2021. There are no allegations, much less specific allegations against the 4th petitioner except a general allegation that all the petitioners forced the 2nd respondent and her husband to sign some papers. Whether the 1st petitioner has obtained the gift deeds dt.04.09.2017, 8 08.11.2017 and rectification deed dt.16.10.2017 by force is matter to be investigated into by the Investigating Officer. Prima facie, there are specific allegations of threatening the 2nd respondent and her husband who died on 24.02.2020 with knife and threatened to kill them and commit suicide by consuming poison. There are specific allegations that 1st petitioner tried to strangulate the 2nd respondent once at her home. Thus, the 1st petitioner has given tensions and pressurized the 2nd respondent and forced her to go the Sub- Registrar Office and sign the gift deeds. There are also specific allegations that the 1st and 2nd petitioners are torturing the 2nd respondent after the death of her husband and threatened her to kill with knife. They have also threatened the 2nd respondent by saying that they would consume rat poison if she does not sign the papers. There is also a specific allegation that the 2nd respondent was kept in confinement of the house and not allowed her to meet anybody and go anywhere. The petitioners 1 and 2 confiscated her mobile phone many time and not allowed her to speak to her friend and even to her daughters. There is also an allegation that they have stopped giving medicines prescribed by the Doctors to her younger son Akshay. There is also specific allegation in the complaint dt.17.01.2021 that the petitioners 1 and 2 stealthily taken away her fixed deposits, cash, gold and jewelry.
12. This Court vide order dt.20.01.2021 in W.P.No.1126 of 2021 filed by the petitioners 1, 2 and 4 directed the 9 Investigating Officer to strictly follow the procedure laid down under Section 41-A Cr.P.C in accordance with law and also to receive the replies to be submitted by the 3rd petitioner therein (4th petitioner herein) and daughter of the 1st and 2nd petitioners through the 1st petitioner herein.
13. A perusal of the record would reveal that that the Investigating Officer has already issued a notice under Section 41-A of Cr.P.C dt.19.01.2021 itself. The above said suit vide O.S.No.283 of 2020 filed by the 2nd respondent and her two daughters seeking partition and separate possession of the suit schedule properties is also pending adjudication. Vide order dated 14.12.2020 in I.A.No.521 of 2021 in O.S.No.283 of 2020, the Court below has granted status-quo with regard to the suit schedule properties therein. According to the learned counsel for the petitioners, the said suit is pending, interim order is subsisting, the 2nd respondent has intentionally suppressed the said fact in the complaint dt.17.01.2021.
14. A perusal of the contents of the complaint dated 17.01.2021 would reveal that there are disputes between the 2nd respondent and her daughter and 1st petitioner with regard to the above said properties. The 2nd respondent is 83 years old woman. She has not mentioned about the filing of the above said suit and pendency of the same in the complaint dt.17.01.2021. Just because there is no mention about filing of the said suit, the proceedings in Cr.No.21 of 2021 cannot be 10 quashed. In view of the fact that there are specific allegations against the petitioners 1 and 2 in the said complaint dated 17.01.2021 with regard to the letter dated 29.03.2019 said to have been submitted by the husband of the 2nd respondent to the District Magistrate and Deputy Commissioner and with regard to the allegations therein, are the matters to be investigated into by the Investigating Officer during the course of investigation.
15. With regard to the contention of the petitioners that the P.S., Raidurgam is not having jurisdiction to entertain the said complaint is a matter to be investigated into by the Investigating Officer during the course of investigation. If the Investigating Officer in Cr.no.21 of 2021, pending on the file of P.S., Raidurgam comes to a conclusion that he is not having jurisdiction, he will the transfer the complaint to the P.S., having jurisdiction.
16. In the complaint itself, the 2nd respondent has specifically mentioned that she was also captivation by her son/petitioner No.1 and daughter-n-law/petitioner No.2 in her own house at Adarshnagar, Hyderabad on 13.11.2020. with the help of Saifabad Police, her daughter Shubhangi and her husband released her from captivity and took her with them for medical treatment and check up. Since she is afraid of going to her house, she is staying with her friends. Therefore, she has lodged the present complaint with P.S., Raidurgam, Cyberabad. 11 As held by the Hon'ble Apex Court, the limitation and jurisdiction etc., will be decided by the Investigating Officer during the course of investigation. On the said ground, the present proceedings in Cr.No.21 of 2021 cannot be quashed.
17. Whether the complaint dt.17.01.2021 lacks ingredients of offences alleged against the petitioner is the factual aspect to be investigated into by the Investigating Officer during the course of investigation. Sections 23 and 24 of the Maintenance and Welfare of Parents and Senior Citizens Act which are relevant and same are extracted below.
" 23. Transfer of property to be void in certain circumstances .-(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.
(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.
(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.
24. Exposure and abandonment of senior citizen .-Whoever, having the care or protection of senior citizen, leaves such senior citizen in any place with the 12 intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both."
18. Thus, as discussed above, there are specific allegations against the petitioners 1 and 2. They are not taking care of the 2nd respondent-mother of the 1st petitioner and there are specific allegations with regard to the same in the complaint dated 17.01.2021. In view of the specific allegations, it is not proper for this Court to interdict the investigation at the threshold. The principle laid down by the Hon'ble Apex Court in Bhajan Lal1, Prof. R.K. Vijayasarathy2, Binod Kumar3, Jamila Begum4 and M.P. Tej Babu5 relied on by the learned counsel for the petitioners has no application to the facts of the present case in view of the above said discussion.
19. In this regard, it is apt to refer to the decision rendered by the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra6, wherein the Apex Court has categorically held that quashing criminal proceedings was called for only in a case where complaint did not disclose any offence, or was frivolous, vexatious, or oppressive. If allegations set out in complaint did not constitute offence of which cognizance had been taken by Magistrate, it was open to High Court to quash same. It was not necessary that, a meticulous analysis of case should be done before trial to find out whether case would end 6 . AIR 2019 SC 847 13 in conviction or acquittal. If it appeared on a reading of complaint and consideration of allegations therein, in light of the statement made on oath that the ingredients of the offence are disclosed, there would be no justification for High Court to interfere. The defences that might be available, or facts/aspects which when established during trial, might lead to acquittal, were not grounds for quashing complaint at threshold. At that stage, only question relevant was whether averments in complaint spell out ingredients of a criminal offence or not. The Court has to consider whether complaint discloses that prima facie, offences that were alleged against Respondents. Correctness or otherwise of said allegations had to be decided only in trial. At initial stage of issuance of process, it was not open to Courts to stifle proceedings by entering into merits of the contentions made on behalf of Accused. Criminal complaints could not be quashed only on ground that, allegations made therein appear to be of a civil nature. If ingredients of offence alleged against Accused were prima facie made out in complaint, criminal proceeding shall not be interdicted.
20. In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh7, the Hon'ble Apex Court referring to the various judgments rendered by it, categorically held that the High Courts in exercise of its inherent powers under Section 482 of Cr.P.C has to quash the proceedings in criminal cases in 7 AIR 2021 SC 931 14 rarest of rare cases with extreme caution. In recent judgment in Criminal Appeal No.330 of 2021 reported in M/s. Neeharika Infrastructure Private Limited v. State of Maharashtra8, the three judges Bench of Hon'ble Apex Court laid certain conclusions, for the purpose of exercising powers by High Courts under Section 482 of Cr.P.C and also Article 226 of Constitution of India which are as under:
"....
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities.
The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
8. AIR 2021 SC 1918 15
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.
21. In view of the above said discussions and considering the fact that the prima facie there are specific allegations against the petitioners 1 and 2/son and daughter-in-law of the 2nd 16 respondent, which are to be investigated into by the Investigating Officer during the course of investigation.
22. The Hon'ble Apex Court in Bhajan Lal1 has also laid down 7 parameters for exercise of power by the High Court to quash the proceedings in a criminal case under Section 482 of Cr.P.C which are also relevant and the same are extracted below:
"(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 FIR 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.
(4) Where the allegations in the FIR 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.17
(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."
The facts of the case on hand do not fall in any of the above said categories.
23. This Court is not inclined to quash the proceedings against the 1st and the 2nd petitioners. As discussed there are no allegations, much less specific allegations against petitioners 3 and 4 i.e., grand daughter of 2nd respondent and father in law of the 1st petitioner, father of the 2nd respondent. The proceedings in Crime No.21 of 2021 against the petitioners 3 and 4 are quashed.
24. As stated supra, the Investigating Officer has already invoked the procedure laid down under Section 41A of Cr.P.C. by duly serving notice on the 1st and 2nd petitioner and they have already submitted their reply. In view of the same, the Investigating Officer in Crime No.21 of 2021pending on the file of the P.S. Raidurgam is directed to follow the procedure laid down under Section 41A of Cr.P.C. and the guidelines issued by the Apex Court in Arnesh Kumar v. State of Bihar9.
25. Accordingly, this Criminal Petition is allowed in part to the extent indicated above.
9 (2014) 8 SCC 273 18 As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
__________________ K. LAKSHMAN, J Date: 01.06.2021 dv