Gogineni Sri Satyavardhan, Usa 3 ... vs Guttikonda Kishore, Vijayawada ...
2023 Latest Caselaw 136 AP

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     IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

         THE HON'BLE SRI JUSTICE NINALA JAYASURYA

              CRIMINAL PETITION NO.1387 of 2016

Between:-

Gogineni Sri Satyavardhan & 3 others         .... Petitioners/Accused 1 to 4

                                      And

Guttikonda Kishore & another                .....       Respondents


Counsel for the Petitioners       :         Smt.K.Sesha Rajyam,
                                            learned Senior Counsel

Counsel for the 1st Respondent :            Mr.A.Radha Krishna

Counsel for the 2nd Respondent :            Mr. Soora Sainath,
                                            learned Addl. Public Prosecutor

ORDER:

The present Criminal Petition is filed seeking to quash the

proceedings in C.C.No.578 of 2015 on the file of the Court of II

Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate at

Vijayawada, Krishna District.

2. The petitioners herein are arrayed as Accused Nos.1 to 4 in the

said case for the offences punishable under Sections 498-A, 506 of

Indian Penal Code (for short 'IPC') and Sections 3 & 4 of Dowry

Prohibition Act (for short 'D.P. Act').

3. Heard Smt.K.Sesha Rajyam, learned Senior Counsel appearing

for the petitioners, Mr.A.Radha Krishna, learned counsel for the

1st respondent and Mr.Soora Sainath, learned Additional Public

Prosecutor appearing for the 2nd respondent-State.

4. The brief facts of the case are that the daughter of the

1st respondent herein and the wife of the 1st petitioner by name

Ms. Lakshmi Gowthami (herein after referred to as the de facto

complainant) lodged a complaint on 16.06.2014 at Mahila Police

Station, Vijayawada City, stating that her marriage was performed with

the 1st petitioner on 14.06.2012 and that he was working at United

States of America. As per the wishes of the 1st petitioner's parents and

grandfather, an amount of Rs.50,00,000/- towards dowry was given in

the presence of one Mr.Boppana Subbarao at the time of engagement

and that they also gave further sum of Rs.50,00,000/- to the 1st

petitioner in the presence of his parents and grandfather at the time of

marriage. In the said complaint, it is also stated that apart from the

said amount, they gave 200 sovereigns of gold, two plots situated in

Vijayawada and a Building situated at Hyderabad. In the complaint, it is

further stated that after the marriage, the 1st petitioner/A.1 at the

instigation of the other petitioners i.e., A.2 to A.4 abused the de facto

complainant, threatened her, demanded to bring cash by disposing the

properties as additional dowry and that they will not allow her to lead

marital life with the 1st petitioner. It was stated that the de facto

complainant informed her father i.e., the 1st respondent about the

demand of additional dowry and thereafter she came down to India on

her own as the 1st petitioner travelled to India alone without purchasing

a ticket to the de facto complainant. It is also stated that on enquiry, it

is learnt that the 1st petitioner was in Bangalore, on request the 1st

petitioner, his parents, grandfather came to Vijayawada and in the

presence of elders viz., one Mr.Boppana Subbarao and Mr.Kodanda

Bala Krishna, discussions took place and despite the advice of elders,

the 1st petitioner, his parents as also his grandfather demanded

additional dowry of Rs.8,00,00,000/- and told that the 1st petitioner

would continue the matrimonial life only if an amount of

Rs.8,00,00,000/- is paid. It is stated that thereafter she left to U.S.A.,

for studies and subsequently her husband i.e., the 1st petitioner came

to U.S.A., there also he demanded additional dowry and his parents

and grandfather continued to demand an amount of Rs.8,00,00,000/-

towards additional dowry.

5. Pursuant to the said complaint, the police after registration of

the crime for the offences punishable under Sections 498-A, 506 of IPC

and Sections 3 & 4 of D.P. Act, conducted investigation and filed a final

report on 27.02.2015 referring the case as 'false' after obtaining

permission from the Assistant Commissioner of Police, Central Zone,

Vijayawada. Aggrieved by the said final report, the 1st respondent who

is father of the de facto complainant lodged a protest

petition/complaint under Sections 190, 200 & 173(8) of Criminal

Procedure Code (for short 'Cr.P.C.'), the cognizance of which was

taken in C.C.No.578 of 2015 on the file of the II Additional Chief

Metropolitan Magistrate-cum-Mahila Magistrate at Vijayawada, Krishna

District. Seeking to quash the same, the present Criminal Petition is

filed.

6. Smt. Sesha Rajyam, learned Senior Counsel, inter alia, submits

that the complaint of the daughter of the 1st respondent dated

16.06.2014 is a counter-blast to the divorce proceedings initiated by

her husband i.e., the 1st petitioner in U.S Courts on 12.05.2014. She

submits that after receipt of summons in the said proceedings, the de

facto complainant i.e., the daughter of the 1st respondent came to

India and lodged the said complaint. She submits that the police after

thorough investigation by examining as many as 16 witnesses referred

the case as "false".

7. The learned counsel submits that after filing of the final report

by the police, notice was given to the de facto complainant, but she did

not take any action. However, the protest petition/complaint was filed

by her father i.e., the 1st respondent herein and the same is not

maintainable. She submits that the protest petition/complaint filed by

the father of the de facto complainant is legally impermissible and no

further proceedings can be continued in the absence of any protest

petition/complaint by the de facto complainant. She also submits that

the protest petition/complaint as lodged by the 1st respondent is lacking

in merits and bona fides. Therefore, the same deserves to be rejected.

She submits that even assuming, without conceding, the demand for

additional dowry, was allegedly made at U.S.A., but only with a view to

attract the jurisdiction of the Court at Vijayawada, in the complaint,

mediation in the presence of some elders was introduced. Referring to

Section 188 of Cr.P.C., the learned Senior Counsel would urge that

when any offence is committed outside India by a citizen of India, he

would be dealt with in respect of such offences only after obtaining the

previous sanction of the Central Government. She submits that in the

present case, no such sanction was obtained from the Central

Government and therefore, continuation of proceedings against the 1st

petitioner is wholly unsustainable.

8. Learned Senior Counsel further submits that to the two

miscellaneous applications i.e., I.A.Nos.2 & 3 of 2019 seeking

permission to file additional material, which is crucial and supports the

case of the petitioners, no counters have been filed and this itself

manifests that the 1st respondent, only with a view to drag on the

proceedings and thereby cause mental agony and hardship to the

petitioners, is bent upon to continue the proceedings with mala fide

intention. The learned counsel contends that the depositions of the so

called elders filed along with additional material papers further falsifies

the case of the 1st respondent. She also submits that the daughter of

the 1st respondent i.e., the de facto complainant had married again and

the relevant proof in this regard was filed in the additional material

papers. The learned counsel while drawing the attention of this Court

to the complaint lodged by the de facto complainant as also the protest

petition/complaint filed by her father i.e., the 1st respondent herein

contends that the same are vague and omnibus allegations have been

made against the petitioners, without any material details and no

offence can be made out on the basis of bald and baseless allegations.

Relying on the decisions of the Hon'ble Supreme Court in

1) Bhagwant Singh v. Commissioner of Police and Another1, 2)

Vishnu Kumar Tiwari v. State of Uttar Pradesh 2 , 3) Bikash

Ranjan Rout v. State3, 4) Amanullah v. State of Bihar4 and 5)

(1985) 2 SCC 537

(2019) 8 SCC 27

(2019) 5 SCC 542

(2016) 6 SCC 699

Thota Venkateswarlu v. State of Andhra Pradesh5, the learned

Senior Counsel seeks to allow the quash petition.

9. Learned Additional Public Prosecutor, on the other hand, while

vehemently opposing the submissions made on behalf of the

petitioners, contends that the Criminal Petition is devoid of merits and

misconceived. It is his submission that the 1st respondent herein, who

filed the protest petition/complaint against the final report of the police,

is none other than the father of the de facto complainant, therefore he

can as well maintain the protest petition/complaint and the same

cannot be found fault with. Referring to Section 198-A of Cr.P.C., the

learned Additional Public Prosecutor would contend that in the light of

the said provision of Law, the protest petition/complaint as made by

the father of the aggrieved person i.e., the de facto complainant is

maintainable. He submits that the demand for additional dowry also

took place at Vijayawada and therefore, the arguments advanced with

reference to Section 188 of Cr.P.C., have no legs to stand. He further

submits that the allegation of mala fides attributed to the 1st

respondent is without any valid basis. He also submits that the 1st

respondent and the de facto complainant have a very good case on

merits and the petitioners instead of facing the Trial, for obvious

reasons, are trying to avoid it with a view to escape from their possible

(2011) 9 SCC 527

conviction against the background of the factual and legal position of

the case. Learned Additional Public Prosecutor in support of his

contentions placed reliance on the decisions reported in 1) Vishnu

Kumar Tiwari v. State of Uttar Pradesh 6 , 2) Sartaj Khan v.

State of Uttarakhand7, 3) Mohd.Rafiuddin Ahmed v. State of

Telangana8 , and prays for dismissal of the Criminal Petition.

10. Learned counsel for the 1st respondent while supporting the

arguments advanced by the learned Additional Public Prosecutor also

seeks dismissal of the Criminal Petition.

11. On a consideration of the submissions made by the learned

counsel on both sides, the points that fall for adjudication by this Court

are:-

1. Whether the protest petition/complaint filed by the 1st respondent is legally maintainable/sustainable?

2. Whether permission is required under Section 188 of Cr.P.C., in the facts and circumstances of the case?

3. Whether the protest petition/complaint is lacking in bona fides ?

12. Point No.1: Elaborate submissions were made by the learned

counsel on both sides with reference to the point in question, by relying

(2019) 8 SCC 27

2022 SCC Online SC 360

(2015) SCC Online 188

on the decisions of the Hon'ble Supreme Court, which would be dealt

with at the appropriate stage.

13. The relevant aspects, which are germane for determining the

present issue are that the initial complaint alleging harassment for

additional dowry etc., was made by the daughter (de facto

complainant) of the 1st respondent on 16.06.2014, pursuant to which a

crime in F.I.R.No.56 of 2014 was registered for the offences punishable

under Sections 498A & 506 of IPC and Sections 3 & 4 of D.P. Act. Prior

to that the 1st petitioner i.e., the husband of the de facto complainant

and the son-in-law of the 1st respondent herein, initiated divorce

proceedings before the Courts at U.S.A., and a decree for divorce was

ultimately granted by Judgment dated 12.05.2016. With a Caveat that

this Court is not examining the validity or otherwise of the said

Judgment, it may be noted from the same, the stand of the respondent

therein i.e., the 1st petitioner's wife (de facto complainant) that she had

not received notice in the divorce case on 15.05.2014 was categorically

rejected. Thus, it goes to show that the daughter of the 1st respondent

herein is well aware of the proceedings initiated by her husband in the

Courts at U.S.A., and instead of defending the same, for her own

reasons, lodged a complaint on 16.06.2014 referred to supra.

14. Be that as it may, the police pursuant to the said complaint,

conducted investigation and filed final report on 27.02.2015, referring

the case as 'false'. In protest of the same, the father of the de facto

complainant i.e., the 1st respondent herein lodged a protest

petition/complaint. From a reading of the same, it would appear that it

was filed by the 1st respondent himself and there is no averment, that

he was authorized to file the same on behalf of the de facto

complainant. Even in his deposition before the Trial Court in

C.C.No.578 of 2015, no statement was made by him that he is duly

authorized to lodge the protest petition/complaint. Further, in the said

deposition, he stated that "after completion of her studies, she came to

India, gave report to Mahila P.S., against A.1 to A.4 and register crime,

but they did not file Charge Sheet and served a notice to me. After

receiving the notice, I filed a private complaint before this Court".

15. Thus, it would appear that at the relevant point of time, the

de facto complainant i.e., the daughter of the 1st respondent is in India,

but no reasons are forthcoming as to why she did not choose to file

protest petition on police referring the case as 'false'. Even assuming

that the de facto complainant is pursuing her career outside India at

the relevant point of time, the same would not come in the way or

disable the de facto complainant in lodging a protest petition herself.

Non-filing of a protest petition by the de facto complainant, according

to the considered view of this Court, is fatal.

16. At this juncture, it may be appropriate to deal with the

contentions advanced by the learned Additional Public Prosecutor with

reference to Section 198-A Cr.P.C. The said provision of Law may be

extracted for ready reference:-

198-A. Prosecution of offences under section 498A of the Indian Penal Code: No Court shall take cognizance of an Offence Punishable Section 498-A of the Indian Penal Code except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

17. There is no dispute about the above provision of Law. As

mentioned supra, the initial/original complaint alleging commission of

offences under 498-A IPC etc; was made by the 1st respondent's

daughter and not by her father or other relatives. The above referred

section of Law, provides specifically that no Court shall take cognizance

of an offence punishable under Section 498-A IPC except upon a police

report or upon a complaint by the aggrieved person or by her father,

mother, brother etc., who are specifically referred to therein or by any

other person related to her by blood, marriage or adoption, with the

leave of the Court. In the case on hand, the complaint was lodged by

the aggrieved person i.e., the daughter of the 1st respondent herself.

18. Though the learned counsel for the respondents tried to impress

upon this Court that the protest petition/complaint can be maintained

by the 1st respondent by virtue of Section 198-A of Cr.P.C, this Court is

not inclined to accept the same.

19. In Vishnu Kumar Tiwari's case referred to supra, the Hon'ble

Supreme Court inter alia held that if a protest petition fulfills the

requirement of a complaint, the Magistrate may treat the protest

petition as a complaint and deal with the same as required under

Section 200/202 Cr.P.C. The Hon'ble Supreme Court reiterated that the

Law mandates notice to the informant/complainant where Magistrate

contemplates to accept the final report and on receipt of the same, the

informant may address the Court ventilating his objections to the final

report, which is usually does in the form of a protest petition. In the

present case, the question is as to whether the 1st respondent who is

admittedly not an "informant/complainant", can maintain the protest

petition/complaint.

20. The Hon'ble Supreme Court in Gangadhar Janardan Mhatre

v. State of Maharashtra and others9 had categorically opined that

"there is no provision in the Code of Criminal Procedure to file a protest

petition by the informant who lodged the first information report. But,

this has been the practice." In the said decision of the Hon'ble Supreme

(2004) 7 SCC 768

Court, after referring to the earlier Judgment in Bhagwant Singh's

case referred to supra, it was held that "there is no shadow of doubt

that the informant is entitled to a notice and an opportunity to be

heard at the time of consideration of the report". The said view of the

Hon'ble Supreme Court was referred to in Vishnu Kumar Tiwari's

case, referred to supra, wherein at Para 22, the Apex Court observed

as follow:-

"22. This Court, in Gangadhar Janardan Mhatre, also stressed on the need to issue notice to the informant in the following discussion: (SCC p.774 para 12)

"12. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh case the right is conferred on the informant and none else." (emphasis supplied)

21. In Bikash Ranjan's case referred to supra, the Hon'ble

Supreme Court, in the context of the action that may be taken by the

learned Magistrate after receipt of investigation report by police under

Section 173(2) of Cr.P.C., at Para No.7 inter alia held that "If the

Magistrate disagrees with the report and drops the proceedings, the

informant is required to be given an opportunity to submit the protest

application and thereafter, after giving an opportunity to the informant, the

Magistrate may take a further decision whether to drop the proceedings

against the accused or not. If the learned Magistrate accepts the objections,

in that case, he may issue process and/or even frame the charges against the

accused."

22. From the expression of the Hon'ble Supreme Court in the above

referred decisions, the irresistible conclusion would be that the

"informant" alone is entitled to lodge a protest petition, if he/she is

aggrieved by the police report and that it is only by way of practice,

such petitions are being entertained.

23. In the present case, the de facto complainant i.e., the

"informant" for the reasons best known to her, had not availed the

opportunity of filing protest petition/complaint, which could have been

entertained by practice much less as a right. In such circumstances, the

1st respondent, though is the father of the de facto complainant, but

not being the "informant", is not entitled to lodge the protest

petition/complaint, as such a right, if at all, is conferred on the

"informant/de facto complainant". The 1st respondent cannot be

treated or equated with that of the "informant"-his daughter(de facto

complainant). Further, to the mind of this Court, the complaint

mentioned in Section 198-A Cr.P.C., is referable to initial complaint,

lodged either by the aggrieved person or her relatives, but not to

protest petition. Therefore, the protest petition/complaint, as lodged by

the 1st respondent and entertaining of the same, by the learned

Magistrate, in the opinion of this Court, is not sustainable in Law.

24. In Bhagwant Singh's case referred to supra, a three Judge

Bench of the Hon'ble Supreme Court had dealt with an important

question of Law, as to whether in a case, where First Information

Report is lodged and after completion of investigation initiated on the

basis of the same, the police submits a report that no offence appears

to have been committed, the Magistrate can accept the report and drop

the proceedings without issuing notice to the first informant or to the

injured or in case the incident has resulted in death, to the relatives of

the deceased.

25. In the said case, the Hon'ble Supreme Court was dealing with a

matter, wherein the victim died as a result of burns received by her

and allegedly she was burnt by her husband and his parents on

account of failure to satisfy their demand for dowry. The Hon'ble Court

had extensively dealt with the relevant provisions of Code of Criminal

Procedure with reference to the Chapter XII of the Code and discussed

about the action to be taken by the police on receipt of information

relating to commission of a cognizable offence and steps to be taken by

the learned Magistrate on receipt of the report by the concerned police.

26. In Para 2 of the said judgment, the Hon'ble Supreme Court

observed that "Sub-section (2) (i) of Section 173 Cr.P.C provides that

as soon as investigation is completed, the officer in charge of the police

station shall forward to the Magistrate empowered to take cognizance

of the offence on a police report, a report setting out various

particulars including whether any offence appears to have been

committed and, if so, by whom."

27. The Hon'ble Apex Court further observed that Sub-section (2)(ii)

of Section 173 Cr.P.C states that the officer shall also communicate, in

such manner, as may be prescribed by the State Government, the

action taken by him, to the person, if any, by whom the information

relating to the commission of the offence was first given and that when

a report was forwarded by the officer in charge of a police station to

the Magistrate under Sub-Section 2(i) of Section 173 Cr.P.C comes up

consideration by the Magistrate, one of two different situations may

arise. It was also inter alia observed that "the report may conclude that

no offence appears to have been committed by a particular person or

persons and in such a case, the Magistrate a) may accept the report

and drop the proceedings; or (b) may disagree with the report, take

cognizance of the offence and issue process; or (c) may direct further

investigation to be made by the police under Section 156(3) Cr.P.C and

require the police to make further report. The Hon'ble Supreme Court

at Para No.4, held as follows:

" ......when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognized by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report......"

28. The Hon'ble Supreme Court in the ultimate analysis of the

relevant provisions of the Code at Para 5 held as follows:-

"5. The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the

report comes up for consideration by the Magistrate. We cannot spell out either from the provisions of the Code of Criminal Procedure, 1973 or from the principles of natural justice, any obligation on the Magistrate to issue notice to the injured person or to a relative of the deceased for providing such person an opportunity to be heard at the time of consideration of the report, unless such person is the informant who has lodged the First Information Report. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. The injured person or any relative of the deceased, though not entitled to notice from the Magistrate, has locus to appear before the Magistrate at the time of consideration of the report, if he otherwise comes to know that the report is going to be considered by the Magistrate and if he wants to make his submissions in regard to the report, the Magistrate is bound to hear him. We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative or relatives of the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report."

29. Thus, the above Judgment of the Hon'ble Supreme Court makes

it clear that the learned Magistrate is required to issue notice to the

injured person or to a relative of the deceased for providing such

person an opportunity of being heard at the time of consideration of

the report, unless such person is the "informant", who has lodged the

First Information Report. In the case on hand, it is not as though the

police have not acted on the complaint of the 1st respondent's daughter

and thereby a private complaint is lodged. The police as mentioned

earlier, filed a final report referring the case as 'false' and on filing of

the same before the learned Magistrate, notice was issued to the de

facto complainant/informant. But she did not choose to lodge any

protest petition, which is fatal. In the light of the factual and the legal

position, the 1st respondent, who is "not the informant", and not lodged

the First Information Report, in the considered opinion of this Court,

cannot maintain a protest petition/complaint and therefore no further

proceedings pursuant to the same can be continued.

30. The Judgments relied on by the learned Additional Public

Prosecutor in the light of the above decision of the Hon'ble Supreme

Court are of not much aid and are not applicable to the facts of the

case on hand. Accordingly, point No.1 is answered in favour of the

petitioners/accused.

31. Point Nos.2 & 3: Though ample material is available on record

to deal with these points for consideration, this Court, in the light of the

conclusions arrived at supra, with regard to the point No.1

i.e., maintainability of the protest petition/complaint by the 1st

respondent, deems it not necessary to adjudicate the same.

32. In the aforesaid view of the matter and the conclusions, on the

basis of the factual and legal position, the Criminal Petition is allowed.

The proceedings in C.C.No.578 of 2015 on the file of the Court of the

II Additional Chief Metropolitan Magistrate-cum-Mahila Magistrate at

Vijayawada, Krishna District are hereby quashed, in exercise of powers

under Section 482 Cr.P.C., as continuation of the same amounts to

abuse of process of Law.

There shall be no order as to costs. As a sequel, all pending

applications shall stand closed.

_______________________ JUSTICE NINALA JAYASURYA

Date: 06.01.2023

IS

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

Crl.P.No.1387 of 2016

Date: 06.01.2023

IS