Telangana High Court

T. Surya Satish Goud S/O. T. ... vs The State Of Telangana on 24 August, 2021

Bench: G Sri Devi

            HONOURABLE JUSTICE G. SRI DEVI

               WRIT PETITION No.13309 of 2016

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India seeking a Writ of Certiorari calling for records relating to

Crime No.76 of 2016 on the file of Women Police Station, Begumpet,

Hyderabad (6th respondent herein) and to quash the same.

The averments made in the affidavit filed in support of the

writ petition are that the marriage between the 1st petitioner and the

8th respondent herein was solemnized on 12.08.2000 and out of

marriage, they were blessed with a son namely T.Suryansh Goud on

15.08.2004; that the 8th respondent abandoned the matrimonial home

creating several inter se disputes and, therefore, the 1st petitioner

filed F.C.O.P.No.220 of 2012 before the Family Judge, City Civil

Court, Secunderabad, seeking divorce on the ground of cruelty and

adultery etc., After receiving the notice in the said F.C.O.P.No.220 of

2012, the 8th respondent lodged a written complaint, dated

16.04.2012, against the 1st petitioner and his parents, which was

registered as a case in Crime No.56 of 2012 of Women Police Station,

Begumpet, for the offences punishable under Section 498-A, 323 of

I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961 and

he was initially granted interim order of not to arrest pending

disposal of the anticipatory bail petition filed by him and during the

pendency of the anticipatory bail petition, this Court conducted

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reconciliation proceedings since the 8th respondent has appeared in

person and opposed the anticipatory bail and that all the efforts for

reconciliation failed and thereafter this Court granted anticipatory

bail to the 1st petitioner. The 8th respondent filed a counter along

with counter-claim in F.C.O.P.No.220 of 2012. Thereafter, the 1st

petitioner filed I.A.No.54 of 2015 to implead Kutadi Srinivas and

others as party respondents in F.C.O.P.No.220 of 2012 and the same

was ordered vide orders dated 14.03.2016. It is further stated that

on 19.07.2015, the 8th respondent was admitted in Yashoda Hospital,

Secunderabad, as an inpatient vide I.P.No.276858, wherein it is

mentioned that the said K.Srinivas is the husband of the 8th

respondent. Thereafter, the 1st petitioner filed I.A.No.509 of 2015 in

I.A.No.54 of 2015 in F.C.O.P.No.220 of 2012 for summoning the

entire medical record of the 8th respondent with I.P.No.276858 and

the 8th respondent filed counter affidavit and opposed the I.A.

Thereafter, the 8th respondent herein filed I.A.No.575 of 2015 seeking

appointment of an expert to inspect the server of Yashoda Hospital

and to examine the server to the extent of entries pertaining to the

admission and her treatment with I.P.No.276858 and to ascertain

whether there are any modifications/tampering/manipulation of

records, subsequent to her admission on 19.07.2015 and the same

was allowed on 19.08.2015. On 14.09.2015, the learned Family Judge

dismissed I.A.No.509 of 2015 filed by the 1st petitioner. Aggrieved

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by the same, the 1st petitioner filed C.R.P.No.5089 of 2015 before this

Court and by an order, dated 26.02.2016, this Court allowed the said

C.R.P. It is further stated that on receipt of the notice in F.C.O.P., the

2nd respondent therein filed counter. It is also stated that the

counter-affidavit filed by the 8th respondent and the counter filed by

the 2nd respondent in F.C.O.P.No.220 of 2012 are inconsistent to each

other, while the 8th respondent claims that she does not know the 2nd

respondent in F.C.O.P.No.220 of 2012, but the 2nd respondent

claimed to be their family friend and well known to the parents of

the 8th respondent for the last 35 years. The discharge summary

issued to the 8th respondent, dated 21.07.2015, clearly shows that she

is the wife of K.Srinivas. Therefore, the 1st petitioner lodged a

complaint before the police, Alwal Police Station, which was

registered as a case in Crime No.352 of 2014 for the offences

punishable under Sections 494, 506, 504 and 420 I.P.C and the said

complaint was closed on the ground of civil in nature, which is

unauthorized, illegal and ab initio void.

It is also stated in the affidavit that the 8th respondent lodged a

complaint, dated 13.04.2016, against the petitioners and another,

before the Women Police Station, Begumpet, which was registered

as a case in Crime No.76 of 2016 for the offences punishable under

Sections 494, 506 and 109 of I.P.C. It is further stated that the said

complaint is filed as a counter blast to Ex.A33-medical record of

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Yashoda Hospital, which was marked in F.C.O.P.No.220 of 2012.

The 8th respondent is habituated to file false criminal complaints not

only against the 1st petitioner but also against his junior advocate

colleagues. A perusal of the allegations made in the complaint,

dated 13.04.2015, does not fulfill the ingredients of the offences

alleged against the petitioners herein and, therefore, the present

Writ Petition is filed.

Notice sent to the 8th respondent by "Registered Post with

Acknowledgment Due" was returned as un-claimed. Taking it as

deemed service in view of the provisions of General Clauses Act, the

present Writ Petition is disposed of after hearing Sri Ashok Anand

Kumar, learned Counsel appearing for the petitioners, learned

Government Pleader for Home, appearing for respondents 1 to 7

and perused the record.

Reiterating the averments made in the affidavit, learned

Counsel appearing for the petitioners would submit that the 1st

petitioner herein filed F.C.O.P.No.220 of 2012, seeking divorce and

after receiving the summons in the said F.C.O.P., the 8th respondent

herein lodged a complaint on 16.04.2012, against the petitioners,

which was registered as a case in Crime No.56 of 2012 of Women

Police Station, Begumpet for the offences punishable under Sections

498-A, 323 I.P.C. and Sections 4 and 6 of Dowry Prohibition Act.

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After completion of investigation, the police filed charge sheet,

which was taken cognizance as C.C.No.349 of 2012. While the said

C.C. was pending, the parents of the 1st petitioner herein expired.

Even after specific directions of this Court for disposal of C.C.No.349

of 2012, the 8th respondent was not proceeding with the trial. He

further submits that the Family Court granted divorce and

aggrieved by the same, the 8th respondent filed Family Court Appeal

No.172 of 2017 before this Court, which was dismissed for default.

He further submits that the 1st petitioner filed Crl.P.No.2461 of 2020

for quashing the proceedings in C.C.No.349 of 2012 and by an order,

dated 09.11.2020, this Court allowed the said petition and quashed

the proceedings against the 1st petitioner. He also submits that while

the trial in F.C.O.P.No.220 of 2012 was going on, the 8th respondent

made a second complaint, which was registered as a case in Crime

No.76 of 2016 for the offences punishable under Sections 494, 506

and 109 of I.P.C. Since the 8th respondent had filed the said false

complaint, while she was leading adulterous life with Kutadi

Srinivas, having married him much prior to F.C.O.P.No.220 of 2012

itself, which was proved by Ex.A33-Medical record of Yashoda

Hospital, dated 19.07.2015, the 1st petitioner along with his father

filed the present W.P.No.13309 of 2016 seeking to quash the

proceedings in Crime No.76 of 2016 and this Court granted interim

stay of all further proceedings in the said crime. He further submits

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that the 8th respondent had neither appeared in the matter nor filed

any counter, nor sought for vacating the interim order granted by

this Court on 20.04.2016. Learned Counsel also submits that the 1st

petitioner filed I.A.No.1 of 2021 in the said Writ Petition to receive

the copy of common judgment and decree in F.C.O.P.No.220 of 2012,

certified copy of Ex.A33 i.e., medical record of the 8th respondent,

orders passed in Crl.P.Nos.348 of 2014 and 2461 of 2020 along with

bunch of photographs uploaded by the 8th respondent on her

Facebook account, which clearly show that she is living with her

husband Kutadi Srinivas. He further submits that the 1st petitioner

had lost his parents due to the harassment made by the 8th

respondent and also lost his 14 years of precious life. In support of

his contentions, he relied upon the following judgments:

1. Darla Srinivas v. Darla Sri Devi1

2. D.Venkata Rajam @ Venkaiah and others v. State of A.P.2

3. State of Haryana v. Bhajan Lal3

4. Dharshanala Dayanand and others v. Vajjala Swapna and another4

5. Vankina Chamundeswaranath v. S.H.O.

Nagarampalem L & O P.S. Guntur and another5,

6. Smt. Satyavathi v. State of A.P. and another6

1999 (2) ALD (Cri) 951

(2019) 2 ALT (Cri) 269

(1992) SCC (Cri) 426

(2019) 1 ALT (Cri) 462

(2010) 3 ALT (Cri) 321

(2006) 2 ALT (Cri) 350

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7. Kapil Agarwal and others v. Sanjay Sharma and others7

In State of Haryana v. Bhajan Lal (3 supra) in which the Apex

Court has laid down the following guidelines.

"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 extra-ordinary 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 channelised and inflexible guidelines or rigid formulae 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.

(2021) SCC Online SC 154

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4. Where, the allegations in the F.I.R. 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."

In the instant case, a perusal of the material available on

record would show that admittedly, this is the second complaint

filed by the 8th respondent herein against the petitioners and

another. On a careful reading of the allegations made in the

complaint, no allegation whatsoever in relation to the offences under

Sections 506 and 109 of I.P.C. are made out against the 1st petitioner.

Further, the allegations made in the impugned F.I.R. are almost

similar to the allegations made in Crime No.56 of 2012 of Women

Police Station, Begumpet, Hyderabad, wherein the police filed

charge sheet before the XV Additional Chief Metropolitan

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Magistrate, Nampally, Hyderabad, against the petitioners and the

same was taken cognizance as C.C.No.349 of 2012. The record

further discloses that by an order, dated 09.11.2020, this Court

quashed the proceedings against the 1st petitioner vide

Crl.P.No.2461 of 2020.

So far as the offence under Section 494 of I.P.C. is concerned,

in Smt. Satyavathi v. State of A.P. and another (6 supra), this Court

held as under:-

"The charge-sheet filed as against the petitioner/A-2 in relation to the offence under Section 494 IPC cannot be sustained in the light of the clear language of Section 198 of the Code. In D.Vijaya Lakshmi v. D. Sanjeeva Reddy 2000 (2) ALT 136 (A.P.), it was held that the Court is precluded from taking cognizance of the offence under Section 494 I.P.C though the investigating agency can register a case and investigate into the offence and the bar is for the Court and not for the investigating agency and, hence, taking cognizance of the case was held to be bad. Hence, so far as the charge under Section 494 IPC as against the petitioner A-2 is concerned, the same cannot be further proceeded with and taking cognizance of the case on the strength of either police report or charge-sheet cannot be sustained.

7. Certain submissions were made in relation to the definition of "complaint". Section 2 of the Code deals with definitions and Section 2(d) specifies:

In this Code, unless the context otherwise requires "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include a police report.

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Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant, The words "the police officer by whom such report is made shall be deemed to be the complainant" no doubt would assume some importance. On the strength of the same, certain submissions were made that this can be treated as a private complaint and having been made by the 2nd respondent de facto complainant further proceedings may be proceeded with. This Court is not inclined to accept the same since the very cognizance was taken on the strength of the charge-sheet."

In order to make out an offence under Section 494 of I.P.C., the

complaint should prima facie disclose that during the subsistence of

the marriage the husband or wife has entered into another marriage.

In the instant case, the only allegation levelled against the 1st

petitioner is that he developed illegal contacts with one Deepika

(Accused No.2) and begotten a female child from her. The specific

stand taken by the 1st petitioner is that he does not know the person

by name Deepika. A perusal of the complaint reflects that there is

not even an allegation of a second marriage by the 1st petitioner.

That apart, the complaint cannot be proceeded with further and

even if any charge sheet is filed by the police, the same cannot be

taken cognizance by the Magistrate in view of the bar under Section