J.Janardhan Reddy vs State Of Ap
2023 Latest Caselaw 5533 AP

 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

          CRIMINAL PETITION No.3873 OF 2019

ORDER:

There is no representation from the 2nd respondent,

despite appearance is ordered.

2. The present Criminal Petition is filed to quash the

C.C.No.749 of 2019 on the file of the Special Judicial Magistrate

of First Class for trial of cases under Andhra Pradesh

Prohibition and Excise Act-cum-III Additional Junior Civil

Judge, Anantapur.

3. The Sub Inspector of Police has laid the charge sheet in

the following manner:

The Accused no.1 herein who is the husband of the

complainant has identified his son through his friend

Venkat Reddy and took son of the complainant from the

School. Then the Defacto Complainant has enquired

Venkat Reddy who admitted for the same. The husband of

the complainant has illegal intimacy with his Sister-in-law

Eswaramma and when the complainant questioned the

same, her brother-in-law beat her stating that do whatever

she wants to do. Since then her husband, brother-in-law,

co-sister and in-laws harassed her and then she insisted to

put separate family they all stated to resign to her job

where she working as Circle Inspector of Police and then

only they will keep separate family and also beat her and

asked her to get gold ornaments from her parents' house.

It is also asserted in the charge sheet during the pendency

of the Divorce Petition husband of the defacto complainant

made a phone call to her and threatened if she objects for

divorce he will cause harm to her son while staying alone in

her quarters. In the aforesaid allegations, police has

investigated the case and laid the charge sheet opining that

as the alleged Accused No.3 to 5 has not participated in

commission of offences and stated that Section 498A, 363

r/w 34 IPC is not attracted and investigated the case

against A1 and A2 with the remaining Section of Law 506

IPC and the same was submitted before the Hon'ble

Judicial Magistrate of First Class, Anantapuramu. As per

the Charge Sheet, A1 and A2 were charged for the offences

under Section 506 IPC alone, and not with any other

provisions of IPC.

4. Aggrieved by the filing of the charge sheet by the police in

deleting the names of the petitioners 3 to 5 herein and the

Defacto Complainant who is the Circle Inspector of Police has

filed protest petition. And the Court below has taken cognizance

for the offence under Section 498A IPC observing that Sections

363, 511 IPC does not attract against the accused. As per the

order dated 27.03.2019, the Court has taken cognizance under

Section 498A IPC against all the accused who are petitioners

herein in the present Criminal Petition.

5. The present Criminal Petition is filed to quash the charge

sheet in toto including the offences under Sections 498 A IPC

and 506 IPC where the learned magistrate has taken cognizance

on the grounds that there are no such ingredients asserted in

the charge sheet to attract the Section 498A and 506IPC, even

entire reading of the charge sheet whatsoever discloses any

offence against the petitioners herein and also would contend

that the Defacto Complainant has divorced on 03.12.2013 in

O.P. No.152 of 2012 has no relationship between (husband and

wife) Accused 1 and Defacto Complainant, as such the offences

under Section 498A has no application for the present facts of

the case. Hence, prayed to allow the Criminal Petition by relying

on the judgment of the Shiva Charan Lal Varma and others v.

State of Madhya Pradesh1wherein it was held thus:

"In view of the aforesaid constitution bench decision, two questions arise for consideration in this appeal. One, whether the prosecution under Section 498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr. Khanduja, learned counsel for the appellant so far as conviction under Section 498A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498A of the IPC."

1 2002 (2) Criminal SC 177

6. The Hon'ble Apex Court in the aforesaid judgment has

quashed the conviction and sentence imposed under Section

498A IPC on the ground when there is no subsisting valid

marriage in between the husband and wife, no offence under

Section 498A would attract. This Court in Criminal Revision

Case No.1740 of 2018 has allowed the Criminal Revision Case

on the same ground as there is no subsistence of valid marriage

in between the husband and wife.

7. In the present case the 2nd respondent complaint has

lodge a report to the police on 16.07.2016 and police has

investigated and filed charge sheet for the offences under

Section 506 IPC alone. The said report to the police was lodged

after lapse of almost 3 years after the marriage was dissolved or

nullified in O.P. No.152 of 2012 dated 03.12.2013, or it can be

said that subsequent to the nullifying of the marriage the

present complaint was filed. Therefore, in view of the

judgment of the Apex Court referred supra, when there is no

subsistence of marriage, the provision 498A IPC has no

implication, therefore, the complaint is liable to be quashed.

8. Even assuming that the first petitioner who is arrayed as

Accused No.1 has obtained the divorce forcibly vide Order dated

03.12.2013 in O.P. No.152 of 2012, Defacto Complainant has

not filed any petition or appeal against the said order. Hence,

shall be presumed that the Defacto Complainant is voluntarily

has not contested the O.P. filed for divorce by the 1st petitioner

herein.

9. Therefore, the allegation is that the first petitioner herein

has threatened not to contest the Divorce Petition which is filed

for divorce has no legs to stand as she has not filed any appeal

or petition to set aside the exparte order.

10. On entire reading of the Charge Sheet, there is no specific

allegation of demand of dowry or cruelty or harassment to

attract the provisions of Section 498A IPC, as such the police

has deleted the offence under Section 498A IPC r/w 34 IPC

against all the accused. The Court below has taken the

cognizance under Section 498A IPC without application of mind

and without considering judgment referred supra, though there

is no specific allegation about the harassment or cruelty in the

protest petition filed by the 2nd respondent-defacto-complainant.

The Hon'ble Supreme Court categorically held that Section 498A

do not attract when there is no subsistence of marriage in

between the husband and wife.

11. As per the Charge Sheet, petitioner no.1 is the husband of

the Defacto Complainant, alone has threatened the Defacto

Complainant not to contest the Divorce OP even it is accepted to

be true, the Defacto Complainant has not filed any petition or

appeal to set aside the exparte order which obtained by the first

petitioner herein, it shows that there is no threat or any force

was made by the first petitioner herein against the Defacto

Complainant. Therefore, the said allegation which is asserted in

the Charge sheet is untrue.

12. The learned Magistrate has erroneously without assigning

any reasons and without considering the averments in Charge

sheet in proper perspective has taken cognizance which shows

not only the non application of mind and it is contrary to the

judgment of Apex Court referred supra and even the entire

Charge Sheet does not reflect any harassment made by the

petitioner herein and there is no subsistence of the marriage in

between the first petitioner and defacto complainant.

13. In view of the above discussion, this Court founds that the

Court below has erroneously taken the cognizance for the

offence under Section 498 A IPC against the petitioners herein.

Learned Magistrate while allowing the protest petition has not

assigned any reasons.

14. Hence, in view of the above said reasons, the C.C. No.749

of 2019 on the file of the Special Judicial Magistrate of First

Class for trial of cases under A.P. Prohibition and Excise Act-

cum-III Additional Junior Civil Judge, Anantapuram is hereby

totally quashed against all the petitioners herein.

15. Accordingly, the Criminal Petition is allowed.

As a sequel, interlocutory applications, if any pending in

this Criminal Petition shall stand closed.

________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 16.11.2023 HARIN

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

Crl.P No. 3873 OF 2019

Date: 16-11-2023

Harin