Mr. Thippareddy Sarath vs The State Of Ap
2021 Latest Caselaw 794 AP

            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June 2018, which was subsequently withdrawn on 01.04.2019.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.

    AIR 2017 SC 4019
                                               5                                    RRR,J
                                                           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

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

(2017) 16 SCC 772

(2015) 3 SCC 424

(2018) 14 SCC 452

(1992) Supplement-1 8 SCC 335

(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.

                           12                                    RRR,J
                                        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.