1
Dr.GRR, J
CRLRC.No.1480 OF 2019
THE HONOURABLE DR.JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.1480 OF 2019
ORDER:
This Criminal Revision Case is filed by the petitioner who is the respondent-husband aggrieved by the judgment passed by the II Additional Metropolitan Sessions Judge, Hyderabad in Criminal Appeal No.1211 of 2018, dated 17.10.2019 confirming the judgment passed by the IV Metropolitan Magistrate, Hyderabad in DVC No.204 of 2015 dated 22.10.2018.
2. The parties are herein after referred as arrayed before the trial court.
3. The petitioner filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short 'the Act') against respondent Nos.1 and 2, seeking a protection order under Section 18 of the Act, residential order under Section 19 of the Act, for return of dowry, gold, silver, value of sarees, marriage expenses spent by them and amount given towards Aadapilla Katnam, maintenance order under Section 20 of the Act seeking maintenance of Rs.25,000/- per month and compensation of Rs.10,00,000/- towards mental and physical agony suffered by her in the hands of the respondents under Section 22 of the Act.
2
Dr.GRR, J CRLRC.No.1480 OF 2019
4. The respondent No.2 is the mother of the respondent No.1. No relief was granted against the respondent No.2.
5. The case of the petitioner was that she was married with the respondent No.1 as per Hindu rites and customs on 15.03.2015 and it was an arranged marriage. On demand by the respondents, her father had given 30 tulas of gold ornaments, 10 tulas of silver chembu and silver pooja samagri and some pattu and fancy sarees, ½ tula of gold ring and Rs.5,00,000/- towards dowry to the respondent No.1 and Rs.25,000/- towards Aadapilla Katnam to the respondent No.1's cousin sister and he also gave some household articles as per their demand.
5.1. The respondent No.1 suspected her character and made allegations against her that she had a boy friend in Bangalore and was having conversation with him while going to her office daily. He used to smell her body and say that someone used her. On 08.05.2015, while she was suffering with cough, he kicked her out of the bedroom and did not allow her to sleep in the room. He had not allowed her to utilize her salary and used to take the same. He demanded for additional dowry of Rs.5,00,000/- and threatened to give divorce, if the said demand was not met. He used to force the petitioner to see porn videos and demand her to co-operate with him as in the said videos. On her reluctance, he kicked her out of the bed and bet her. He threatened her that if 3 Dr.GRR, J CRLRC.No.1480 OF 2019 she would not co-operate as in the said videos, he would shoot the intercourse with her with a spy camera and upload in the website. He made allegations that she was not a virgin and had experience in pre-marital sex as on the date of marriage. He used to make publicity of all the bedroom activities to her colleagues at her workplace and lowered and damaged the reputation of the petitioner and necked her out of the house on 12.05.2015. Vexed with his attitude, the petitioner filed a criminal case under Sections 498 (A) and 506 of IPC and Sections 4 and 6 of Dowry Prohibition Act before Women Police Station, Begumpet. Before the CCS Police also, the respondent No.1 abused her on 30.05.2015.
6. The respondent No.1 filed counter denying the petition averments. He contended that the petitioner was adamant, aggressive and proud, being a working woman, she never cared about the needs and necessities of respondent No.1, she never used to cook food and serve to respondent No.1. The respondent No.1 himself used to do all household work besides his employment. He had given all comforts and support to her during her short stay of two months with him. Whenever she complained of medical problems, he took her to a doctor. He contended that on 12.05.2015, the petitioner without informing him, left the house by taking all her belongings, after he left to the office. On his return from office, he tried to call the petitioner and her parents, but his efforts went in vain. Twenty days later, the petitioner lodged a 4 Dr.GRR, J CRLRC.No.1480 OF 2019 complaint of dowry harassment with false allegations, which was registered as Crime No.107 of 2015 by Women Police Station, Begumpet. The Police after due enquiry, deleted the names of Padmaja Rani and Subba Rao. The High Court vide orders in Criminal Petition No.8051 of 2015, quashed the proceedings against his cousin sister Sridevi, and her husband Venkanna Dora, Bhavani Annapurna and Chitti Dora. The said crime was also pending only against him. The petitioner several times abused him as "manner-less fellow". She always used to state that her qualification and job was higher than him and that he should listen to her. The petitioner was working as an Assistant Manager in a Scheduled Commercial Bank, Union Bank of India and was receiving handsome salary. On the other hand, he was receiving a meager salary and from out of it, he had to maintain his mother and ailing sister and had to clear debts incurred for the purpose of marriage. The petitioner on her own left his company.
7. The respondent No.2 failed to file counter. The trial court forfeited the right of respondent No.2 for filing the counter.
8. The petitioner examined herself as PW.1 and examined her father as PW.2 and marked Exs.P.1 to P.5 on her behalf. The respondent No.1 examined himself as RW.1. No documents were marked on his behalf. 5
Dr.GRR, J CRLRC.No.1480 OF 2019
9. The trial court on considering the evidence on record opined that there was no domestic relationship between the petitioner and respondent No.2, as the respondent No.2 used to reside along with the sister of respondent No.1 at Ch.Nagapuram in Visakhapatnam District. As the petitioner and respondent No.1 alone used to reside in a shared household at Sai Nilayam, Begumpet, Hyderabad, considered that there was domestic relationship between them. As there was no cross-examination on PW.1 and as the evidence of PW.1 remained unchallenged, the trial court opined that the evidence of PW.1 established that she was met with domestic violence in the hands of respondent No.1 and granted the protection order, the residence order and an order under Section 19(8) directing the respondent No.1 to return cash of Rs.5,00,000/-, 30 tulas of gold ornaments, 10 tulas of silver ornaments given towards dowry and Rs.40,000/- towards worth of pattu sarees to the petitioner within six months from the date of the order and also awarded an amount of Rs.3,00,000/- towards compensation to the petitioner from the respondent No.1 and directed the respondent No.1 to pay the same within six months from the date of the order. The trial court rejected the order for maintenance, as the petitioner was an employee and capable of maintaining herself.
10. Aggrieved by the said order passed in DVC No.204 of 2015 dated 22.10.2018 by the IV Metropolitan Magistrate, Hyderabad, the respondent No.1
- husband preferred an appeal. The appeal was heard by the II Additional 6 Dr.GRR, J CRLRC.No.1480 OF 2019 Metropolitan Sessions Judge, Hyderabad vide Criminal Appeal No.1211 of 2018 and the learned II Additional Metropolitan Sessions Judge on considering the oral and documentary evidence on record, dismissed the appeal confirming the order passed by the IV Metropolitan Magistrate, Hyderabad in DVC No.204 of 2015 dated 22.10.2018.
11. Aggrieved further, the respondent No.1 - husband preferred this revision contending that the courts below were carried away with the version of PW.1, since she was not subjected to cross-examination. Not cross-examining PW1 itself, could not be a ground for allowing the case of the petitioner, as the petitioner was heavily burdened to prove her case and she miserably failed to discharge the said burden. No documentary evidence was adduced by the petitioner to prove the allegations made by her. The courts below failed to take into consideration the fact that the revision petitioner filed a petition to re-open the evidence of PW.1 for her cross-examination but the same was dismissed by the court below vide order in Criminal M.P.No.2239 of 2017 dated 17.01.2018 and deprived the revision petitioner (respondent) to disprove the case of the petitioner - wife. The courts below erred in observing that since the revision petitioner had not issued any notice for restitution of conjugal rights, he was at fault and that the petitioner proved her case. The observation of the court that, since he had not filed any divorce petition on the grounds of cruelty, he was not subjected to cruelty by the petitioner was unknown to law. Without there being 7 Dr.GRR, J CRLRC.No.1480 OF 2019 any oral or documentary evidence with regard to the petitioner giving dowry as alleged, the courts below came to the conclusion that the petitioner had given dowry and ordered for its return. The courts below failed to observe that the petitioner left the matrimonial home voluntarily and her allegation that she was necked-out by the revision petitioner was false. The petitioner while leaving his company, had taken all her clothes, jewellery and belongings of her and other articles along with her. The courts below failed to take into consideration the defence put forward by the revision petitioner and were completely carried away by the case put forward by the petitioner - wife. None of the documents filed by the petitioner would prove her case and prayed to set aside the judgments of the courts below.
12. The respondent No.1 filed counter contending that the revision petitioner deliberately dragged the matter from 11.05.2017 to 11.09.2017 without cross- examining the petitioner, though many opportunities were given to him and vexed with the attitude of the revision petitioner herein, the court below dismissed the re-call petition on 17.01.2018. Against the dismissal of the re-call petition, the revision petitioner preferred an appeal before the High Court. The same was also dismissed on 21.02.2017. The revision petitioner deliberately suppressed the said fact and filed the present case and prayed to dismiss the Criminal Revision Case.
8
Dr.GRR, J CRLRC.No.1480 OF 2019
13. Heard the learned counsel for the revision petitioner (husband) and the learned counsel for the respondent No.1 (wife).
14. The learned counsel for the revision petitioner argued on the same lines as raised in the grounds of revision and relied upon the judgment of the Hon'ble Apex Court in Chaturbhuj Pande and others v. Collector, Raigarh1on the aspect that though the witnesses examined on behalf of the appellants, had not been effectively cross-examined and no evidence was adduced in rebuttal, that does not mean that the court is bound to accept their evidence.
15. It was a case under Land Acquisition Act and the Hon'ble Apex Court observed that:
"As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants' claim as regard the value of the orchard. It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities."
16. The contention of the learned counsel for the revision petitioner was that, even though there was no cross-examination on PW.1, the courts ought not to 1 AIR 1969 SC 255 9 Dr.GRR, J CRLRC.No.1480 OF 2019 have believed the evidence of PW.1 without there being any support of documentary evidence to show that any dowry was given at the time of marriage and that the petitioner was subjected to any domestic violence. When the courts below considered that the petitioner was not subjected to physical abuse since there were no physical injuries found on her body, the same analogy could also be equally applied to the mental agony alleged by her and prayed to allow the revision.
17. The learned counsel for the respondent No.1 on the other hand, contended that the scope of revision was very limited and the revisional jurisdiction could not be invoked unless and until the decisions under challenge were grossly erroneous and the finding recorded was based on no evidence and judicial discretion was exercised arbitrarily or perversely and relied upon the judgment of the Hon'ble Apex Court in Amit Kapoor v. Ramesh Chander and Another in Criminal Appeal No.1407 of 2012, wherein it was held that:
"8. Before examining the merits of the present case, we must advert to the discussion as to the ambit and scope of the power which the courts including the High Court can exercise under Section 397 and Section 482 of the Code. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the 10 Dr.GRR, J CRLRC.No.1480 OF 2019 orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."
18. She further relied upon the judgment of the Hon'ble Apex Court in Amar Chand Agarwalla v. Shanti Bose and Another2, wherein it was held that:
"Even assuming that the High Court was exercising jurisdiction under Section 439, in our opinion, the present was not a case for interference by the High Court. The jurisdiction of the High Court is to be exercised normally under Section 439 of Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error or point of law and consequently there has been a flagrant miscarriage of justice. The High Court has not found any of these circumstances to exist in the case before us for quashing the charge and the further proceedings."
19. She also relied upon the judgment of the Delhi High Court in Taron Mohan v. State and Another, in Criminal Revision Petition No.646 of 2018 dated 25.01.2021, wherein it was held that:
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 Cr.P.C. gives the High Courts 2 1973 AIR 799 11 Dr.GRR, J CRLRC.No.1480 OF 2019 or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence."
20. On a perusal of the judgment of the trial court, PW.1 was examined in chief on 11.04.2017 and marked Exs.P.1 to P.5. There was no cross- examination on her though several opportunities were provided to the revision petitioner on 11.05.2017, 27.06.2017, 14.07.2017, 07.08.2017 and 11.09.2017. Costs of Rs.300/- were also imposed for adjourning the matter to 07.08.2017. As the revision petitioner failed to pay any costs or to cross-examine PW.1, the cross of PW.1 was treated as nil.
21, The respondent No.1 (revision petitioner) filed Crl.M.P.No.2239 of 2017 on 21.12.2017 for recall of PW.1 for cross examination. The said petition was dismissed by the trial court observing that despite imposing costs and passing conditional orders, the petitioner did not choose to comply the said orders and though he appeared on 15.11.2017, failed to file the re-call application of PW.1 on the said date. The Protection of Women from Domestic Violation Act 12 Dr.GRR, J CRLRC.No.1480 OF 2019 mandated to dispose the case within sixty (60) days of first hearing, but despite lapse of two(02) years, due to the absence of the respondent No.1 (revision petitioner herein) there was no progress in the case, having knowledge about the conditional orders and imposing of costs, the respondent did not choose to pay the costs and comply the condition and as there were no valid and justifiable grounds to allow the petition, dismissed the same.
22. No appeal was preferred against the order in Crl.M.P.No.2239 of 2017 as required under Section 29 of the Domestic Violence Act but the respondent No.1 (revision petitioner herein) filed Criminal Petition No.1185 of 2018 before this Court for quashing the order in Crl.M.P.No.2239 of 2017 dated 17.01.2018. The said Criminal Petition was dismissed by this Court on 21.02.2018 by referring to the full bench judgment of the Hon'ble Apex Court in Girish Kumar Suneja v. C.B.I. holding that, when there was a specific bar to prefer a revision against the interlocutory order of the Sub-Ordinate Court expressly under sub-section (2) of Section 397 of Cr.P.C., the inherent powers contained under Section 482 of Cr.P.C. were not available to the aggrieved person and the Criminal Petition was not maintainable on the said ground as well as on merits.
23. Thus, the order in Crl.M.P.No.2239 of 2017 passed by the IV Metropolitan Magistrate, Hyderabad dismissing the re-call petition of PW.1, became final.
13
Dr.GRR, J CRLRC.No.1480 OF 2019
24. Since, there was no cross-examination on PW.1 on the various allegations made by her against the respondent No.1 in her evidence affidavit, the trial court believed her evidence and basing on such evidence and as the same was corroborated by the evidence of her father, PW.2, who was cross- examined, the trial court granted the various reliefs as stated above.
25. The order of the trial court would disclose that it applied its mind, as such, had dismissed the case against the respondent No.2, the mother of respondent No.1 (the revision petitioner herein) and also not awarded the relief for maintenance as sought by the petitioner (respondent No.1 herein).
26. The lower appellate court also considered the evidence of the witnesses in detail and observed that the various allegations pleaded and deposed by PW.1 are substantiated by the evidence of PW.2 regarding harassment and cruelty. It also considered the several inconsistent versions in the defence taken by the revision petitioner herein. The lower appellate court also observed the status of the parties and their standard of living, while awarding compensation of Rs.3,00,000/- to the petitioner (respondent No.1 herein). Hence, considering all the aspects only, both the trial court and the lower appellate court awarded the various reliefs to the petitioner (respondent No.1 herein).
27. Hence, this Court does not find any reason to interfere with the judgments of the courts below in this Criminal Revision Case. This Court does 14 Dr.GRR, J CRLRC.No.1480 OF 2019 not find any glaring illegality in the procedure or any manifest error on the point of law which resulted in any miscarriage of justice to set aside the same in this revision.
28. In the result, the Criminal Revision Case is dismissed confirming the orders of the courts below in awarding the various reliefs to the petitioner (respondent No.1 herein).
Miscellaneous petitions pending, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J 27th December, 2022 nsk.