Telangana High Court

Kishore Dhanyakumar Doshi And 3 ... vs The State Of Telangana And Another on 1 June, 2021

Bench: K.Lakshman

        THE HONOURABLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL PETITION No.1205 OF 2021

ORDER:

This petition is filed under Section 482 of Cr.P.C to quash

the proceedings in Crime No.21 of 2021, pending on the file of

P.S., Raidurgam, Cyberabad. The petitioners herein are

accused Nos.1 to 4 in the said crime. The offences alleged

against them are under Sections 342, 347, 504, 506, 358, 116,

384 read with 34 of IPC and under Sections 23 and 24 of

Maintenance and Welfare of Parents and Senior Citizens Act,

2007.

2. The 1st petitioner is the son and the 2nd petitioner is the

daughter-in-law, 3rd petitioner is granddaughter of the 2nd

respondent/de-facto complainant. 4th petitioner is the father-

in-law of the 1st petitioner/accused No.1. The husband of the

2nd respondent died on 24.02.2020. She has four children i.e.,

Shubhangi S Shah, Kishore D Doshi, Akshay D.Doshi and

Sangita Gautama.

3. The allegations against the petitioners herein as per the

complaint dt.17.01.2021 are as follows:

The petitioners herein have forced the 2nd respondent and

her husband who are senior citizens with mental torture,

threatened them by fraud scared them to sign three gift deeds

with regard to her immovable properties. The details of the gift

deed are specifically mentioned in the complaint. The 1st

petitioner has shown a knife and threatened the 2nd respondent

and her husband to kill and also threatened them to commit

suicide by consuming poison, if they do not sign gift deeds in

respect of their properties only in his name and in the name of

his daughter, though they have four children and five grand

children. On some occasions, the 1st petitioner used to slap the

husband of the 2nd respondent and would bang his head against

the wall and shout at them using foul language for three to four

hours. The 1st petitioner has even tried once to strangulate the

2nd respondent/de-facto complainant at home. The 1st

petitioner scared the 2nd respondent and her husband, gave

them tensions, pressurized them, forced them to go the Sub-

Registrar Office and sign the gift deeds. Thus, the 1st petitioner

has obtained the said four gift deeds by force, coercion, threat

and by fraud. Therefore, the said gift deeds have to be

cancelled.

4. The husband of the 2nd respondent also detailed some of

the atrocities committed on them and the 2nd respondent in his

letter dated 29.03.2019 written to the District Magistrate and

Deputy Commissioner. She agreed the said letter. In the said

letter, the husband of the 2nd respondent has confirmed that the

petitioners made them to sign the three gift deeds and

rectification deed illegally by force, coercion, threat and by

fraud. Her husband has also give letter personally in her

presence to her daughter Sangita Gautama (resident of USA) in

January, 2020, when she visited Hyderabad to see them. Even

now, the petitioners 1 and 2 have hatred towards 2nd

respondent and her husband and gave them lot of mental

tensions.

5. After death of her husband, the petitioners 1 and 2

continued to threaten her by showing knife and threatened her

to kill and commit suicide by showing rat poison that he shall

consume poison, if she do not sign more papers.. Thus, the 2nd

respondent was kept in confinement, not allowed to meet

anybody or go anywhere. Her mobile phone was also

confiscated by 1st and 2nd petitioners many times. They have

not allowed the 2nd respondent to speak to her friend and to her

own daughters i.e., Shubhangi & Sangeeta Gautama (resident of

USA), both of whom looked after her when she has major health

issues and operations. The 2nd petitioner never looked after her

and she would even not give her and her younger son i.e.,

Akshay proper food to eat. Even recently, when the 2nd

respondent has back ache, the 2nd petitioner left a hot water bag

on her waist at the back and went away allowing it to burn her

skin with elastic sticking to her skin. Petitioners 1 and 2 also

stooped giving medicines which are prescribed by doctors to her

younger son Akshay and tried to damage Akshay's health.

6. Thus, petitioners 1 and 2 stealthily taken away all their

fixed deposits, cash, gold and jewellery, which they are entitled

to return to her. With the said allegations, the 2nd respondent

has lodged a complaint with the Police, Raidurgam, Cyberabad

on 17.01.2021, who in turn registered a case in Cr.No.21 of

2021 for the aforesaid offences against the petitioners herein.

7. Sri Dharmesh D.K.Jaiswal, learned counsel for the

petitioners, would submit that there are property disputes

between the 1st petitioner, 2nd respondent and her daughters

i.e., Shubhangi & Sangeeta Gautama (resident of USA). He

would further submit that the Police Raidurgam, Cyberabad

have no jurisdiction to entertain the complaint and to register

the said crime. It is Saifabad P.S., which is having jurisdiction.

He has also relied upon the Truth Lab report and would

contend that the allegations against the petitioners made by the

2nd respondent in the complaint are false and baseless.

Referring to the contents of the plaint in O.S.No.283 of 2020,

pending on the file of XXVI Additional Chief Judge, City Civil

Court, Hyderabad, learned counsel for the petitioners would

submit that the 2nd respondent, her two daughters filed the said

suit against the petitioners 1 to 3 and Akshay-brother of the 1st

petitioner and son of the 2nd respondent seeking partition and

separate possession of the suit schedule properties therein. The

said suit is pending. During the pendency of the said suit, the

2nd respondent has lodged the present complaint with a mala

fide intention to implicate the petitioners herein at the instance

of her daughters i.e., sisters of the 1st petitioner who are having

disputes with regard to ancestral properties. By referring to the

same, learned counsel for the petitioners would submit that the

2nd respondent is trying to criminalize the civil proceedings by

way of lodging the said complaint dt.17.01.2021 during the

pendency of the civil suit vide O.S.No.283 of 2020. According to

him, the contents of the complaint lack ingredients of offences

alleged against the petitioners herein. He has relied on the

principles laid down by the Hon'ble Apex Court in State of

Haryana v. Bhajan Lal1, Prof. R.K. Vijayasarathy v. Sudha

Seetharam2, Binod Kumar v. State of Bihar3, Jamila

Begum v. Shami Mohd.4, M.P. Tej Babu v. State of

Telangana5.

8. According to the learned counsel for the petitioners,

continuation of criminal proceedings in Cr.No.21 of 2021

against the petitioners herein is an abuse of process of law and

therefore the said proceedings in Cr.no.21 of 2021 are liable to

be quashed by this Court by invoking its inherent powers under

Section 482 of Cr.P.C.

9. Pursuant to the order dt.26.02.2021, learned counsel for

the petitioners took out notice to the 2nd respondent and said

cover was returned un-served with an endorsement 'door

locked'. Learned counsel for th petitioners has filed a memo

vide USR.No.17728 of 2021 dt.08.03.2021 along with postal

tracking report. By referring to the same, learned counsel for

the petitioners would submit that he has sent notice to the

address of the 2nd respondent mentioned in the complaint and

1992 Supp (1) SCC 335

(2019) 16 SCC 739

(2014) 10 SCC 663

(2019) 2 SCC 727

(2016) SCC Online Hyd 733: (2017) 1 ALD (cri) 677

therefore the notice is deemed to be served on the 2nd

respondent in view of the Section 27 of General Clauses Act,

1897.

10. On the other hand, learned Public Prosecutor, would

submit that there are specific allegations against each of the

petitioners. There are several factual aspects to be investigated

into by the Investigating Officer during the course of

investigation. There are specific allegations of threatening to kill

the 2nd respondent with knife and attempting to kill her by

strangling, by keeping hot water bag on the waist of the 2nd

respondent when she got back pain. There is specific allegation

that they have also stopped giving medicines to the 2nd

respondent and her younger son Akshay and the 2nd petitioner

has not even provided food to him. The said letter written by

the husband of the 2nd respondent was specifically mentioned in

the complaint. It is a matter to be investigated into by the

Investigating Officer during the course of investigation.

Jurisdiction aspect is also an aspect to be investigated into by

the Investigating Officer during the course of investigation. In

the event of lack of jurisdiction to the Investigating Officer of

P.S., Raidurgam, Cyberabad in Cr.No.21 of 2021, he will send

the file to the concerned P.s., which is having jurisdiction. On

the ground of jurisdiction proceedings in Cr.No.21 of 2021

cannot be quashed. The said principle also laid down by the

Hon'ble Apex Court. There are specific allegations that the

petitioners are not taking care of welfare of the 2nd respondent,

mother, mother-in-law and grand mother of petitioners 1 to 3

respectively. Since the punishment for the offences alleged

against the petitioners herein is seven years or below seven

years, the Investigating Officer has already invoked the

procedure laid down under Section 41-A Cr.P.C and issued a

notice to the said effect. The petitioners have also submitted

their replies. Thus, there are several factual aspects to be

investigated into by the Investigating Officer during the course

of investigation. Learned Public Prosecutor would further

submit that during the course of investigation, if the

Investigating Officer comes to a conclusion that the contents of

the complaint do not constitute any offence alleged against the

petitioners, he would drop the said charge against the

petitioners. The petitioners herein instead of cooperating with

the Investigating Officer by furnishing information and

documents sought by him, approached this Court by way of

filing the present petition. With the said submissions, learned

Public Prosecutor sought dismissal of the present petition.

11. As stated above, prima facie, there are specific allegations

against the petitioners 1 and 2 herein. The 4th petitioner is the

father-in-law of the 1st petitioner and father of the 2nd petitioner

in the complaint dated 17.01.2021. There are no allegations,

much less specific allegations against the 4th petitioner except a

general allegation that all the petitioners forced the 2nd

respondent and her husband to sign some papers. Whether the

1st petitioner has obtained the gift deeds dt.04.09.2017,

08.11.2017 and rectification deed dt.16.10.2017 by force is

matter to be investigated into by the Investigating Officer. Prima

facie, there are specific allegations of threatening the 2nd

respondent and her husband who died on 24.02.2020 with

knife and threatened to kill them and commit suicide by

consuming poison. There are specific allegations that 1st

petitioner tried to strangulate the 2nd respondent once at her

home. Thus, the 1st petitioner has given tensions and

pressurized the 2nd respondent and forced her to go the Sub-

Registrar Office and sign the gift deeds. There are also specific

allegations that the 1st and 2nd petitioners are torturing the 2nd

respondent after the death of her husband and threatened her

to kill with knife. They have also threatened the 2nd respondent

by saying that they would consume rat poison if she does not

sign the papers. There is also a specific allegation that the 2nd

respondent was kept in confinement of the house and not

allowed her to meet anybody and go anywhere. The petitioners

1 and 2 confiscated her mobile phone many time and not

allowed her to speak to her friend and even to her daughters.

There is also an allegation that they have stopped giving

medicines prescribed by the Doctors to her younger son Akshay.

There is also specific allegation in the complaint dt.17.01.2021

that the petitioners 1 and 2 stealthily taken away her fixed

deposits, cash, gold and jewelry.

12. This Court vide order dt.20.01.2021 in W.P.No.1126 of

2021 filed by the petitioners 1, 2 and 4 directed the

Investigating Officer to strictly follow the procedure laid down

under Section 41-A Cr.P.C in accordance with law and also to

receive the replies to be submitted by the 3rd petitioner therein

(4th petitioner herein) and daughter of the 1st and 2nd petitioners

through the 1st petitioner herein.

13. A perusal of the record would reveal that that the

Investigating Officer has already issued a notice under Section

41-A of Cr.P.C dt.19.01.2021 itself. The above said suit vide

O.S.No.283 of 2020 filed by the 2nd respondent and her two

daughters seeking partition and separate possession of the suit

schedule properties is also pending adjudication. Vide order

dated 14.12.2020 in I.A.No.521 of 2021 in O.S.No.283 of 2020,

the Court below has granted status-quo with regard to the suit

schedule properties therein. According to the learned counsel

for the petitioners, the said suit is pending, interim order is

subsisting, the 2nd respondent has intentionally suppressed the

said fact in the complaint dt.17.01.2021.

14. A perusal of the contents of the complaint dated

17.01.2021 would reveal that there are disputes between the 2nd

respondent and her daughter and 1st petitioner with regard to

the above said properties. The 2nd respondent is 83 years old

woman. She has not mentioned about the filing of the above

said suit and pendency of the same in the complaint

dt.17.01.2021. Just because there is no mention about filing of

the said suit, the proceedings in Cr.No.21 of 2021 cannot be

quashed. In view of the fact that there are specific allegations

against the petitioners 1 and 2 in the said complaint dated

17.01.2021 with regard to the letter dated 29.03.2019 said to

have been submitted by the husband of the 2nd respondent to

the District Magistrate and Deputy Commissioner and with

regard to the allegations therein, are the matters to be

investigated into by the Investigating Officer during the course

of investigation.

15. With regard to the contention of the petitioners that the

P.S., Raidurgam is not having jurisdiction to entertain the said

complaint is a matter to be investigated into by the Investigating

Officer during the course of investigation. If the Investigating

Officer in Cr.no.21 of 2021, pending on the file of P.S.,

Raidurgam comes to a conclusion that he is not having

jurisdiction, he will the transfer the complaint to the P.S.,

having jurisdiction.

16. In the complaint itself, the 2nd respondent has specifically

mentioned that she was also captivation by her son/petitioner

No.1 and daughter-n-law/petitioner No.2 in her own house at

Adarshnagar, Hyderabad on 13.11.2020. with the help of

Saifabad Police, her daughter Shubhangi and her husband

released her from captivity and took her with them for medical

treatment and check up. Since she is afraid of going to her

house, she is staying with her friends. Therefore, she has

lodged the present complaint with P.S., Raidurgam, Cyberabad.

As held by the Hon'ble Apex Court, the limitation and

jurisdiction etc., will be decided by the Investigating Officer

during the course of investigation. On the said ground, the

present proceedings in Cr.No.21 of 2021 cannot be quashed.

17. Whether the complaint dt.17.01.2021 lacks ingredients of

offences alleged against the petitioner is the factual aspect to be

investigated into by the Investigating Officer during the course

of investigation. Sections 23 and 24 of the Maintenance and

Welfare of Parents and Senior Citizens Act which are relevant

and same are extracted below.

" 23. Transfer of property to be void in certain circumstances .-(1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.

(2) Where any senior citizen has a right to receive maintenance out of an estate and such estate or part thereof is transferred, the right to receive maintenance may be enforced against the transferee if the transferee has notice of the right, or if the transfer is gratuitous; but not against the transferee for consideration and without notice of right.

(3) If, any senior citizen is incapable of enforcing the rights under sub-sections (1) and (2), action may be taken on his behalf by any of the organisation referred to in Explanation to sub-section (1) of section 5.

24. Exposure and abandonment of senior citizen .-Whoever, having the care or protection of senior citizen, leaves such senior citizen in any place with the

intention of wholly abandoning such senior citizen, shall be punishable with imprisonment of either description for a term which may extend to three months or fine which may extend to five thousand rupees or with both."

18. Thus, as discussed above, there are specific allegations

against the petitioners 1 and 2. They are not taking care of the

2nd respondent-mother of the 1st petitioner and there are

specific allegations with regard to the same in the complaint

dated 17.01.2021. In view of the specific allegations, it is not

proper for this Court to interdict the investigation at the

threshold. The principle laid down by the Hon'ble Apex Court in

Bhajan Lal1, Prof. R.K. Vijayasarathy2, Binod Kumar3,

Jamila Begum4 and M.P. Tej Babu5 relied on by the learned

counsel for the petitioners has no application to the facts of the

present case in view of the above said discussion.

19. In this regard, it is apt to refer to the decision rendered by

the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v.

The State of Maharashtra6, wherein the Apex Court has

categorically held that quashing criminal proceedings was called

for only in a case where complaint did not disclose any offence,

or was frivolous, vexatious, or oppressive. If allegations set out

in complaint did not constitute offence of which cognizance had

been taken by Magistrate, it was open to High Court to quash

same. It was not necessary that, a meticulous analysis of case

should be done before trial to find out whether case would end

. AIR 2019 SC 847

in conviction or acquittal. If it appeared on a reading of

complaint and consideration of allegations therein, in light of

the statement made on oath that the ingredients of the offence

are disclosed, there would be no justification for High Court to

interfere. The defences that might be available, or facts/aspects

which when established during trial, might lead to acquittal,

were not grounds for quashing complaint at threshold. At that

stage, only question relevant was whether averments in

complaint spell out ingredients of a criminal offence or not. The

Court has to consider whether complaint discloses that prima

facie, offences that were alleged against Respondents.

Correctness or otherwise of said allegations had to be decided

only in trial. At initial stage of issuance of process, it was not

open to Courts to stifle proceedings by entering into merits of

the contentions made on behalf of Accused. Criminal

complaints could not be quashed only on ground that,

allegations made therein appear to be of a civil nature. If

ingredients of offence alleged against Accused were prima facie

made out in complaint, criminal proceeding shall not be

interdicted.

20. In Skoda Auto Volkswagen India Private Limited v.

The State of Uttar Pradesh7, the Hon'ble Apex Court referring

to the various judgments rendered by it, categorically held that

the High Courts in exercise of its inherent powers under Section

482 of Cr.P.C has to quash the proceedings in criminal cases in

AIR 2021 SC 931

rarest of rare cases with extreme caution. In recent judgment in

Criminal Appeal No.330 of 2021 reported in M/s. Neeharika

Infrastructure Private Limited v. State of Maharashtra8,

the three judges Bench of Hon'ble Apex Court laid certain

conclusions, for the purpose of exercising powers by High

Courts under Section 482 of Cr.P.C and also Article 226 of

Constitution of India which are as under:

"....

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities.

The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

8. AIR 2021 SC 1918

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

21. In view of the above said discussions and considering the

fact that the prima facie there are specific allegations against

the petitioners 1 and 2/son and daughter-in-law of the 2nd

respondent, which are to be investigated into by the

Investigating Officer during the course of investigation.

22. The Hon'ble Apex Court in Bhajan Lal1 has also laid down

7 parameters for exercise of power by the High Court to quash

the proceedings in a criminal case under Section 482 of Cr.P.C

which are also relevant and the same are extracted below:

"(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 FIR 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 Act concerned (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 Act concerned, 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."

The facts of the case on hand do not fall in any of the above said

categories.

23. This Court is not inclined to quash the proceedings

against the 1st and the 2nd petitioners. As discussed there are

no allegations, much less specific allegations against petitioners

3 and 4 i.e., grand daughter of 2nd respondent and father in law

of the 1st petitioner, father of the 2nd respondent. The

proceedings in Crime No.21 of 2021 against the petitioners 3

and 4 are quashed.

24. As stated supra, the Investigating Officer has already

invoked the procedure laid down under Section 41A of Cr.P.C.

by duly serving notice on the 1st and 2nd petitioner and they