Andhra Pradesh High Court - Amravati

Jonnalagadda Nageswara Rao vs The State on 27 September, 2022

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

             CRIMINAL PETITION NO.5240 OF 2021

ORDER:-

        This Criminal Petition, under Section 482 Cr.P.C.,

is filed to quash the proceedings in C.C. No.1806 of 2018

on the file of the I Additional Chief Metropolitan

Magistrate, Visakhapatnam.             Petitioners herein are

arrayed as A.2, A.3, A.4 and A.6 respectively, in the said

case.

        2.     A charge sheet has been filed as against the

petitioners and others, for the offences punishable under

Section 498A IPC and 3 and 4 of the Dowry Prohibition

Act, 1961.        The allegations, in brief, may be stated as

follows.

        2nd respondent/defacto complainant is native of

Mumbai, Maharashtra State. A.1 is native of

Machilipatnam of Krishna District, Andhra Pradesh

State. A.1, while doing job in Mumbai as Merchant

Radio Officer in Global Shipping Company in the year

1998, developed intimacy with her, and thereafter

married her and registered the same in the office of the

Registrar, Bandra, Mumbai on 31.08.2001. The couple

led conjugal life in Mumbai for some years. Thereafter,

she went to her in-law's house with A.1 to

Machilipatnam, where they again married on 20.02.2003

in the presence of family members as per their caste

customs. She and A.1 stayed for a few years at the

house of A.2 to A.6 in Machilipatnam, and thereafter,

they shifted to Visakhapatnam city in the year 2007. It

is alleged that as their marriage is a love marriage, A.2 to

A.6 did not accept the same heartfully and started

harassing her by abusing, beating and demanding for

additional dowry. A.1 developed illicit intimacy with

one Gayathri in Visakhapatnam, and when she

questioned the same, A.1 subjected 2nd respondent to

cruelty by abusing, beating and also demanding

additional dowry. A.2 to A.6 supported A.1 and

neglected her in attending her needs.

On a report lodged by 2nd respondent, police

registered a case in crime No.49 of 2015 of Women police

station, Visakhapatnam city and filed charge sheet after

completion of investigation.

3. Heard the learned counsel for petitioners, the

Additional Public Prosecutor for respondent No.1-State

and the learned counsel for 2nd respondent. Perused the

record.

4. Learned counsel for the petitioners submitted

that marriage between A.1 and 2nd respondent was

dissolved by way of decree of divorce dated 28.11.2011

passed in H.M.O.P. No.94 of 2011 on the file of the

Senior Civil Judge, Machilipatnam, but she did not

mention the same in the report given by her to police. He

also submitted that omnibus accusation has been

leveled against all the accused that they harassed her,

and except the same, there is no other material to

connect the petitioners with the alleged offences.

5. On the contrary, learned counsel for 2nd

respondent contended that A.1 had given wrong address

of 2nd respondent and obtained the ex parte divorce

decree dated 28.11.2011; that prior to 28.11.2011 and

after the said date, both A.1 and 2nd respondent were

living together under the same roof. It is her submission

that even after the alleged decree of divorce dated

28.11.2011, they travelled together on 20.05.2021 and

the travel tickets and invoice issued by Athithi Hotel,

Mumbai would substantiate the same. It is her

submission that they also visited Krishna IVF Clinic at

Visakhapatnam for fertility treatment on 08.03.2013,

and they actively took participation in the marriage of

cousin of A.1 on 16.07.2013, but at no point of time, A.1

or other accused informed her about the decree of

divorce. It is also submitted that 2nd respondent

transferred an amount of Rs.5.00 lakhs on 14.12.2011

to the account of A.1 on his demand, from the

streedhana amount. Hence, she prayed to dismiss the

Criminal Petition.

6. There cannot be any dispute that inherent

powers of this Court under Section 482 CrPC can be

exercised to prevent abuse of process of Court or to give

effect to any order under the code or to secure the ends

of justice. This Court is also conscious of the fact that

the power of quashing a criminal proceeding should be

exercised very sparingly and with circumspection and

that too in the rarest of rare cases and that the Court

would not be justified in embarking upon an enquiry as

to the reliability or genuineness or otherwise of the

allegations made in the report. On this aspect, it is

pertinent to refer to the judgment of the Hon'ble Apex

court in State of Haryana Vs. Ch.Bhajanlal and ors.1,

wherein the Apex Court held,

"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 extraordinary 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 channelized and inflexible guidelines or rigid formulae

1 AIR 1992 SC 604

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; (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 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."

7. Admittedly, marriage between 2nd respondent

and A.1 is a love marriage. After the registered marriage,

they went to house of in-laws of 2nd respondent at

Machilipatnam and stayed along with petitioners 1 and 2

(A.2 and A.3) for a period of six years. It is alleged in

the charge sheet that all the other accused instigated A.1

to harass 2nd respondent, and by virtue of the same, A.1

subjected her to cruelty by beating and abusing her in

filthy language.

8. All the accusations made by 2nd respondent

are directed against A.1. It is the case of 2nd respondent

that A.1 obtained a decree of divorce dated 28.11.2011 in

H.M.O.P. No.94 of 2011 on the file of the Senior Civil

Judge, Machilipatnam behind her back, showing her as

staying in the house at Machilipatnam, where petitioners

1 and 2 were also residing. It is also stated that even

after passing the decree of divorce, they were moving

together to different place and there is material to show

that both of them went to Krishna IVT Clinic for fertility

treatment on 08.03.2013. Some of the material papers

viz. tickets and other papers, goes to show that both of

them stayed in a Hotel together. It would go to show

that apparently, the decree of divorce was obtained by

A.1 behind back of 2nd respondent. At no point of time,

the fact of divorce decree granted by the Court has been

informed to 2nd respondent either by A.1 or petitioners 1

and 2, who are none other than parents of A.1. There is

any amount of ambiguity whether parents of A.1 had

knowledge of passing of the decree of divorce against 2nd

respondent at the instance of A.1. At this stage, this

Court would not be in a position to come to the

conclusion whether they have knowledge of the said fact

or not. It is only during the course of trial, it can be

established whether petitioners 1 and 2 (A.2 and A.3)

had knowledge of obtaining of the decree of divorce by

A.1 against 2nd respondent. In view of the aforesaid

circumstances, truth or otherwise of the accusations

made against petitioners 1 and 2/A.2 and A.3 has to be

established in the course of trial, and this Court is not

inclined to interfere with the impugned proceedings

insofar as petitioners 1 and 2/A.2 and A.3 are

concerned.

9. In respect of other petitioners, they are

relatives of A.1. The only accusation as against them is

omnibus in nature. Except stating that they too

instigated A.1 to harass 2nd respondent, there is

absolutely no other material to connect them to the

crime. It is essential that specific acts have to be

attributed in respect of relatives of A.1. On a perusal of

the First Information Report, statements under Section

161 CrPC and the charge sheet allegations, there is

absolutely no material as against the petitioners 3 and 4

viz. A.4 and A.6, are concerned.

10. On this aspect, it is pertinent to mention to

the following decisions of the Hon'ble Apex Court.

(a) In Preeti Gupta and another v. State of Jharkhand & another2, wherein it is held thus: (paragraphs 30 to 34).

"30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

31. The courts are receiving a large number of cases emanating from Section 498-A of the Penal Code which reads as under:

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purposes of this section, 'cruelty' means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in

2 (2010) 7 SCC 667

the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations."

(b) In Mirza Iqbal @ Golu and another v. State of Uttar Pradesh and another,3 wherein it is held thus: (paragraphs 11 and 12).

"11. The appellants are brother-in-law and mother-

inlaw respectively of the deceased. A perusal of the complaint filed by the 2nd respondent, pursuant to which a crime was registered, does not indicate any

32021 SCC OnLine SC 1251

specific allegations by disclosing the involvement of the appellants. It is the specific case of the 1st appellant that he was working as a cashier in ICICI Bank at Khalilabad branch, which is at about 40 kms from Gorakhpur. The alleged incident was on 24.07.2018 at about 8 p.m. When the investigation was pending, the 1st appellant has filed affidavit before Senior Superintendent of Police on 08.08.2018, giving his employment details and stated that he was falsely implicated. It was his specific case that during the relevant time, he was working at ICICI Bank, Khalilabad branch, Gorakhpur and his mother was also staying with him. The Branch Manager has endorsed his presence in the branch, showing in-time at 09 : 49 a.m. and out-time at 06 : 25 p.m. Even in the statement of 2nd respondent recorded by the police and also in the final report filed under Section 173(2) of Cr.P.C., except omnibus and vague allegations, there is no specific allegation against the appellants to show their involvement for the offences alleged. This Court, time and again, has noticed making the family members of husband as accused by making casual reference to them in matrimonial disputes. Learned senior counsel for the appellants, in support of her case, placed reliance on the judgment of this Court in the case of Geeta Mehrotra v. State of Uttar Pradesh1. In the aforesaid case, this Court in identical circumstances, has quashed the proceedings by observing that family members of husband were shown as accused by making casual reference to them. In the very same judgment, it is held that a large number of family members are shown in the FIR by casually mentioning their names and the contents do not disclose their active involvement, as such, taking cognizance of the matter against them was not justified. It is further held that taking cognizance in such type of cases results in abuse of judicial process. Paras 18 and 25 of the said judgment, which are relevant for the purpose of this case, read as under:

"18. Their Lordships of the Supreme Court in Ramesh case [(2005) 3 SCC 507 : 2005 SCC (Cri) 735] had been pleased to hold that the bald allegations made against the sister-

in-law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband's relatives as possible. It was held that neither the FIR nor the charge-sheet furnished the legal basis for the Magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge-sheet, none of the alleged offences under Sections 498-A, 406 IPC and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant's husband who was undisputedly not living with the family of the complainant's husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister-in-law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.

25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of

the complainant wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding."

12. From a perusal of the complaint filed by the 2nd respondent and the final report filed by the police under Section 173(2) of Cr.P.C., We are of the view that the aforesaid judgment fully supports the case of the appellants. Even in the counter affidavits filed on behalf of respondent nos. 1 and 2, it is not disputed that the 1st appellant was working in ICICI Bank at Khalilabad branch, but merely stated that there was a possibility to reach Gorakhpur by 8 p.m. Though there is an allegation of causing injuries, there are no other external injuries noticed in the postmortem certificate, except the single ante-mortem injury i.e. ligature mark around the neck, and the cause of death is shown as asphyxia. Having regard to the case of the appellants and the material placed on record, we are of the considered view that except vague and bald allegations against the appellants, there are no specific allegations disclosing the involvement of the appellants to prosecute them for the offences alleged. In view of the judgment of this Court in the case of Geeta Mehrotra1, which squarely applies to the case of the appellants, we are of the view that it is a fit case to quash the proceedings."

18. "The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

11. A.4 is sister of A.1 and is a resident of a

different city and she is a married woman. Except an

accusation, which is omnibus in nature, there is no

4 2022 LiveLaw (SC) 141

specific act attributed as against her. Insofar as

petitioner No.4/A.6 is concerned, he is brother of A.1.

He is a Software Engineer working in Japan. Except

visiting his parents, whenever he visited India, there is

no other material to connect him to the subject crime.

Except omnibus accusation that he along with 3rd

petitioner, instigated A.1 to harass 2nd respondent, there

is no specific act attributed as against him. Since