Telangana High Court
Leon Christopher Emanuel vs The State Of Telangana on 25 June, 2024
THE HON'BLE SMT. JUSTICE K.SUJANA
CRIMINAL PETITION No.810 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash the proceedings against the petitioners/accused Nos.1 to 4 in C.C.No.8007 of 2022 on the file of the learned XV Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 498-A, 494, 417, 506 and 406 read with Section 34 of the Indian Penal Code, 1860 (for short 'I.P.C.') and Sections 3 and 6 of the Dowry Prohibition Act, 1961 (for short 'the Act').
2. The brief facts of the case are that respondent No.2 lodged a complaint before the Police, WPS Police Station, North Zone, Begumpet, Secunderabad, stating that her marriage with petitioner No.1 was solemnized on 30.09.2011. After the marriage, she joined with petitioner No.1 and they lived happily for some time. Prior to the marriage, she used to work in Swiss International Airlines, Dubai, and petitioner No.1 is working as a Director in E-Man Group of Companies. After the marriage, she left the job and used to assist 2 SKS,J Crl.P.No.810 of 2024 petitioner No.1 in business affairs along with matrimonial duties. Her in-laws and their younger son were also working in the same company and they all are residing together under one roof. After some time, the petitioners used to harass respondent No.2 mentally and physically. When respondent No.2 joined with petitioner No.1, she was forced to fulfill his fetish for unnatural sex and she bore all such acrimonious acts of petitioner No.1, which were supported by her in laws.
3. Later, respondent No.2 came to know that petitioner No.1 is having illicit relationship with another woman. In October 2015, respondent No.2 was forcefully sent to India and warned her not to return to marital home. Thereafter, with a mala fide intention, petitioner No.1 filed a petition, vide F.C.O.P.No.93 of 2016, before the Family Court, Secunderabad, for dissolution of marriage. While the marriage of respondent No.2 is still in existence, petitioner No.1 married German women by name Natasha Hassel Berg and approached the Director General of Immigration, Lusaka for including her name in his passport. It is further stated that the petitioner Nos2 to 4 were instigating and supporting the unlawful acts of petitioner No.1.
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4. Basing on the said complaint, the Police registered a case in Crime No.108 of 2021 for the offences punishable under Sections 498-A, 494, 417, 506 and 406 read with Section 34 of the IPC and Sections 3 and 6 of the Act. After completion of investigation, the Police filed charge-sheet and the same was numbered as C.C.No.8007 of 2022 on the file of the learned XV Additional Chief Metropolitan Magistrate, Hyderabad.
5. Heard Sri P. Vamsheedhar Reddy, learned counsel appearing on behalf of the petitioners as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf respondent No.1-State. Though notice was served upon respondent No.2, none appeared on her behalf.
6. Learned counsel for the petitioners submitted that even if the entire complaint is taken in toto, the offences as alleged in the complaint do not constitute. He further submitted that the marriage between petitioner No.1 and respondent No.2 was performed in Mumbai on 30.09.2011. Thereafter, they visited Hyderabad and respondent No.2 left to Dubai, where she was working and petitioner No.1 went to Africa, where he was working. After 15 months of the marriage, respondent 4 SKS,J Crl.P.No.810 of 2024 No.2 joined with petitioner No.1 at Africa to lead their marital life.
7. Learned counsel for the petitioners further submitted that a bare perusal of the complaint reveals that respondent No.2 with an intention to harass the petitioners, filed the present complaint after five years of initiation of divorce proceedings and the ex-parte order is in favour of petitioner No.1. He further submitted that after completion of statutory period petitioner No.1 married the German women i.e., Natasha Hassel Berg as there was no communication pertaining to set aside the ex-parte order. He further submitted that F.C.O.P.No.93 of 2016 was dismissed on 12.07.2022.
8. In support of his submission, learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in State of Andhra Pradesh vs. Madhusudhan Rao, wherein it is held as under:
"Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than notresults in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only get bereft of the advantage of 5 SKS,J Crl.P.No.810 of 2024 spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained."
9. Learned counsel for the petitioners further relied upon the judgment of the High Court of Madras in J. Srinivasan vs. The State, wherein it is held as under:
"There is no reason as to why there was such a long delay of two years in giving the complaint. The respondent police surprisingly had registered the FIR on the same day on which the complaint was given even without making a preliminary enquiry as required by the Hon'ble Supreme Court in Lalitha Kumari vs. Government of Uttar Pradesh reported in 2013 (6) CTC
353.
A preliminary enquiry ought to have been conducted for two reasons. The first reason is that there was an enormous delay in giving the complaint against the accused persons and the second reason is that the issue involves a matrimonial dispute wherein the preliminary enquiry has to be conducted before an FIR is registered."
10. Learned counsel for the petitioners further contended that as on the date of marriage, neither there is any communication nor any notice was served upon petitioner No.1 with regard to the set aside petition filed in 6 SKS,J Crl.P.No.810 of 2024 F.C.O.P.No.93 of 2016. He further submitted that after obtaining the ex-parte order and after completion of the statutory period only, petitioner No.1 performed another marriage. Therefore, the offence under Section 494 of IPC does not attract as alleged in the complaint.
11. Learned counsel for the petitioners further submitted that respondent No.2 initiated the proceedings under the Domestic Violence Act in Mumbai at Kurla, vide C.C.No.11/DV/2018 and further she filed miscellaneous application i.e., Ex.17 for return of Stridhan and the same was rejected. Later, respondent No.2 preferred appeal vide Criminal Appeal No.211 of 2023 and the same was dismissed and disposed of on 13.09.2023. Therefore, the offence under Section 406 of IPC also does not attract as alleged in the complaint.
12. Learned counsel for the petitioners also contended that the entire allegations made against the petitioners are vague and the same pertains to Botswana, Africa, and that there was no single allegation with regard to harassment of respondent No.2 in India. He further submitted that no complaint was lodged before the concerned authorities at Botswana, Africa 7 SKS,J Crl.P.No.810 of 2024 about the harassment by the petitioners. After several years, with an intention to harass the petitioners, without there being any jurisdiction, lodged the complaint against them.
13. Learned counsel for the petitioners further submitted that even if the allegations are taken in toto, the Police cannot prosecute the petitioners without following the procedure contemplated under Section 188 of Cr.P.C. In the present case, the charge sheet is filed without following the due process as contemplated under Section 188 of Cr.P.C. Though there are catena of judgments of the Hon'ble Supreme Court and various High Courts, learned counsel for the petitioners relied on the judgment of this Court in Bhanu Prasad Variganji vs. The State of Telangana, wherein it is observed as under:
'The petitioner and the 3rd respondent lived in India only for three days and the allegations contained in the complaint and charge sheet are regarding the occurrences in the United State of America. It is further submitted that no sanction has been obtained under Section 188 of Cr.P.C., which mandates that no Court shall take congnizance except the previous sanction by the Central Government when an offence is committed outside the jurisdiction of India."8
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14. Learned counsel for the petitioners further submitted that there were omnibus and general allegations and Investigating Officer have failed to gather necessary prima facie evidence. Further, there is no material evidence to constitute the offences as alleged in the complaint and at any point of time, there was no demand for dowry. Therefore, he prayed the Court to quash the proceedings against the petitioners.
15. On the other hand, learned Assistant Public Prosecutor opposed the submissions made by the learned counsel for the petitioners and submitted that the allegations leveled against the petitioners are serious in nature, which requires trial. The jurisdiction issue and other issues as contended by the learned counsel for the petitioners have to be decided by the trial Court. Further, the allegation against petitioner No.1 is that during the subsistence of marriage, petitioner No.1 married another woman. Therefore, at this stage, it cannot be decided and prayed the Court to dismiss the petition.
16. In the light of the rival submissions made by the parties and having gone through the material available on record, it appears that the allegations against petitioner No.1 is that, he 9 SKS,J Crl.P.No.810 of 2024 is having illicit relationship with another woman and married the German woman. Further, petitioner No.1 used to harass respondent No.2 and forced her to fulfill his fetish for unnatural sex. The allegations against petitioner Nos.2 and 3 are that they supported petitioner No.1 and harassed respondent No.2 and they intervened into the personal life of respondent No.2 and asked her to act according to their directions. Further, the articles which were presented at the time of marriage of respondent No.2 and petitioner No.1 are with the custody of petitioner Nos.2 and 3. Petitioner No.4 is the brother-in-law of respondent No.2 and the younger brother of petitioner No.1 and the allegation against him is that he supported his brother i.e., petitioner No.1 and entered into the personal and private life of respondent No.2.
17. On going through the above said allegations, admittedly, petitioner No.1 married another woman in the year 2020, and according to him, he obtained ex-parte divorce and after expiry of the statutory period, he married another woman. Learned counsel for the petitioners informed the Court that petitioner No.1 has not received any notice for setting aside the ex-parte order, as such, he is not liable for punishment 10 SKS,J Crl.P.No.810 of 2024 under Section 494 of IPC. It is further noted that there are no other specific allegations against petitioner No.1 that he used to harass respondent No.2 physically or mentally and demanded additional dowry. Whether petitioner No.1 married the German woman i.e., Natasha Hassel Berg before setting aside the or after setting aside the ex-parte decree order has to be decided after full-fledged trial only. Therefore, there are serious allegations against petitioner No.1, as such, the petition against him is liable to be dismissed.
18. Thereafter, the allegation against petitioner Nos.2 and 3 is that the dowry articles which were presented by the parents of respondent No.2 at the time of her marriage are in their custody, whereas respondent No.2 initiated the proceedings under the Domestic Violence Act, at Additional Chief Metropolitan Magistrate, Mumbai at Kurla Court vide C.C.No.11/DV/2018 for return of Stridhan and the same was rejected on 12.05.2022. Later, aggrieved by the said rejection order, she preferred appeal vide Crl.A.No.211 of 2023 and the same was dismissed and disposed of on 13.09.2023. Therefore, the allegations against petitioner Nos.2 and 3 are 11 SKS,J Crl.P.No.810 of 2024 vague and baseless, as such, the petition against them are liable to be quashed.
19. Further, the allegation against petitioner No.4 is that he entered into the private and personal life of respondent No.2 and he supported his brother i.e., petitioner No.1. Except that, there is no other specific allegation against petitioner No.4 to constitute the alleged offences. Therefore, the petition against him is also liable to be quashed.
20. In view of the above discussion, the criminal petition is allowed-in-part and the proceedings against petitioner Nos.2 to 4 in C.C.No.8007 of 2022 on the file of the learned XV Additional Chief Metropolitan Magistrate, Hyderabad, are hereby quashed and the proceedings against petitioner No.1 is dismissed and the prosecution is directed to proceed further.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 25.06.2024 SAI