Thotapally Sai Prasanna Kumar, vs The State Of Telangana,
2022 Latest Caselaw 435 Tel

          THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL PETITION No.2173 of 2016
ORDER:

This petition is filed by the petitioner-A1 under Section 482

Cr.P.C. to quash the proceedings in CC No.354 of 2015 on the file of

I-Additional Judicial Magistrate of First Class, Warangal.

2. The case of the petitioner in brief was that the 2nd respondent

was his wife and she lodged a complaint against him and his family

members before the CID Police, Warangal, which was registered as

Crime No.46 of 2012 for the offences under Sections 498-A, 313, 406

and 506 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961

(for short 'DP Act'). The 2nd respondent contended that she was

married to the petitioner on 17.11.2005 at Warangal as per Hindu rites

and customs and on the demand of A1 to A5, the parents of the 2nd

respondent presented gold and silver articles worth Rs.25,00,000/-

towards dowry and performed the marriage by spending

Rs.12,00,000/- towards expenses. After the marriage, she joined the

company of the petitioner at Bangalore and two weeks after the

marriage, the petitioner left to USA. During her stay at Bangalore, her

in-laws harassed her for additional dowry. The 2nd respondent went to

USA and joined her husband - petitioner at Longmont Town, near

Boulder city, Colorado State, USA. After some time, the petitioner

also started harassing her physically and mentally with a demand to

bring additional dowry. She was blessed with a male child on

26.02.2007. The petitioner at the instigation of A2 to A5 used to Dr.GRR,J

harass her for additional dowry. In the month of June, 2007, the

petitioner went to Austin City in search of job by leaving alone the 2nd

respondent in Boulder city, Colorado State without arranging for her

needs to get on with a 4 months baby. When she expressed her

inability to maintain at Colorado, the petitioner did not take any care

and discarded his phone. Her neighbours helped her under

humanitarian grounds. With the help of the relative of her husband,

she flew to Austin city along with 8 months baby and joined her

husband. In January, 2009, she became pregnant for the second time.

At the instigation of his parents (A2 and A3), the petitioner insisted

and forced the 2nd respondent to terminate her pregnancy till her

parents fulfil their demand of additional dowry and forcibly got

aborted her pregnancy on 02.03.2009 at Planned Parenthood of Austin

Surgical and Sexual Health Services. The petitioner without changing

his attitude used to beat her mercilessly and not arranged for her

needs. Vexed with the attitude of A1 to A5, she tried to commit

suicide. The petitioner at the instigation of A2 to A5 threatened the 2nd

respondent with dire consequences and came down to India on

24.02.2011 leaving the 2nd respondent alone at USA without any

intimation. Thereafter, with the help of her well-wishers, she came

down to India along with her son on 02.03.2011. She reported to her

in-laws about the harassment made by her husband on 07.03.2011, but

they threatened her with dire consequences and stated that they would

not allow her to lead martial life with the petitioner till their demands

were fulfilled. As such, she lodged the report. Basing on the said Dr.GRR,J

report, the above crime was registered by the CID Police and after

investigation, they filed charge sheet against A1 to A5 for the offences

under Sections 498-A, 313, 406, 506 IPC and Sections 3 and 4 of DP

Act.

3. Heard the learned counsel for the petitioner, learned counsel

for the 2nd respondent and the learned Assistant Public Prosecutor.

4. The learned counsel for the petitioner submitted that

admittedly it was a second marriage for both the parties and there was

no question of demand of dowry. The entire story was cooked up only

after differences arose between the parties with a view to harass the

petitioner and his family members. The 2nd respondent had also filed

another case against the petitioner under Sections 506 and 507 IPC

alleging that he had threatened her over phone from Austin and the

same was also registered as FIR No.49 of 2014 and on filing charge

sheet it was numbered as CC No.442 of 2014. The petitioner had

filed quash petition in the said case also. This would indicate the

intimidating nature of the 2nd respondent. The present case was filed

against the father, mother, brother and sister-in-law of the petitioner

under the same Sections. The parents and brother of the petitioner

filed quash petition before this Court vide Crl.P.No.11034 of 2015

and the petitioner's sister-in-law had filed another quash petition vide

Crl.P.No.9951 of 2015. Crl.P. No.11034 of 2015 was allowed

quashing the proceedings against the petitioners therein - A2 to A4 on

21.01.2019.

Dr.GRR,J

5. The learned counsel for the petitioner further submitted that

the marriage of the petitioner with the 2nd respondent was performed

on 17.11.2005 and thereafter within two weeks the petitioner left to

America according to the complaint itself. The 2nd respondent also

joined the petitioner at USA. All the harassment was alleged to have

taken place against the petitioner at USA. Therefore, as per the

provisions of Cr.P.C. when the offences were alleged to have taken

place outside India, permission of the Central Government for

prosecution was required, as such the case deserved to be quashed on

the said ground. Crl.P. No.11034 of 2015 was quashed on the said

ground basing on the judgment of the Hon'ble Apex Court in Thota

Venkateswarlu v. State of Andhra Pradesh1. Crl.P. No.873 of 2016

was also allowed quashing the proceedings against the petitioner in

CC No.442 of 2014 on the file of IV-Additional Judicial Magistrate of

First Class, Warangal.

6. Learned counsel for the 2nd respondent submitted that the

offences were taken place not only outside India but also within the

country and sanction was not necessarily be obtained before taking

cognizance. It can be obtained even after taking cognizance and

relied upon the same judgment of the Hon'ble Apex Court in Thota

Venkateswarlu case (supra).

7. Perused the record. On perusal of the charge sheet and the

complaint given by the 2nd respondent, the allegations levelled by the

2nd respondent are mainly against the petitioner - A1 for harassment

(2011) 9 SCC 527 Dr.GRR,J

for additional dowry, for terminating her pregnancy and criminal

intimidation at USA. It was alleged in the complaint by the 2nd

respondent that after the marriage, within two weeks the petitioner left

to USA and he returned to India on 24.02.2011 and the 2nd respondent

came back to India along with her son on 02.03.2011 and lodged the

complaint against the petitioner and his family members on

08.06.2012 before the CID Police, Warangal. Thus, except Section 3

of the DP Act, all the offences are alleged to have committed by the

petitioner outside India. Section 188 Cr.P.C. reads as follows:

"188. Offence committed outside India. When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been com- mitted at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."

8. The Hon'ble Apex Court in Thota Venkateswarlu case

(1 supra) on a similar facts where the complaint was made by the

2nd respondent in the said case for the alleged offences under Sections

498-A and 506 IPC, which were committed outside India in

Botswana, where the petitioner and the 2nd respondent therein were

residing, observed that:

"14. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates Dr.GRR,J

that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :-

"29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one -- commission of an offence; second -- by an Indian citizen; and third -- that it should have been committed outside the country."

15. Although the decision in Ajay Aggarwal's case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.

16. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required."

9. Considering the said judgment of the Hon'ble Apex Court,

this Court in Crl.P. No.11034 of 2015 and also considering that the

limitation for taking cognizance of the offence against A2 to A5 was

barred, quashed the proceedings against A2 to A5 in CC No.354 of

2015.

Dr.GRR,J

10. With regard to the contention of the learned counsel for the

2nd respondent that sanction is not necessarily to be obtained before

taking cognizance this Court in Municipal Corporation of

Visakhapatnam v. State of A.P.2 held that:

"5........ Relevant words contained in Section 197 Cr.P.C are to the effect; "no Court shall take cognizance of such offence except with the previous sanction". Therefore, sanction for prosecution is a condition precedent for taking cognizance of such a case against the public servant. Sanction has to be previous in point of time and it should be previous to taking cognizance of the offence by the Court or the Magistrate. Subsequent sanction if any obtained cannot cure initial or inceptual defect attached to the case. It is not a curable defect which can be rectified at subsequent stage of the proceedings or before final decision is taken by the criminal Court. The prohibition is in respect of taking cognizance of the offence against the public servant; and the prohibition is not for either commencement of trial or for final decision by way of recording conviction or acquittal. When there is legal prohibition for taking cognizance of the offence, question of the criminal Court proceeding with trial of the case does not arise at all. The criminal Court takes cognizance of offence by issuing of summons or warrant to the accused under Section 204 Cr.P.C after following the procedure contained in Sections 200, 201 and 202 Cr.P.C and if not resorted to Section 203 Cr.P.C. Therefore, sanction for prosecution under Section 197 Cr.P.C shall be obtained and presented before the Magistrate prior to stage of issuing of process to the accused under Section 204 Cr.P.C. At the same time, no sanction under Section 197 Cr.P.C is required for presentation of a complaint before the Magistrate or for recording of sworn statement of the complainant by the Magistrate. Question of applicability of Section 197 Cr.P.C has to be considered after examination of the complainant and his witnesses if any, by way of recording of their sworn statements by the Magistrate. There is no option for the criminal Court except to dismiss the complaint in case sanction required under Section 197 Cr.P.C is not obtained prior to issuing of process to the accused. The prohibition for taking cognizance of offence contained under Section 197(1) Cr.P.C. is a mandatory prohibition and has to be considered at the threshold of the case and not at a subsequent stage. Therefore, taking cognizance of the case against the petitioner/A-1 in this case by the lower Court is not in accordance with law and is liable to be quashed."

11. Considering the above judgments of the Hon'ble Apex

Court which was also applicable to the petitioner - A1 and the

Laws (APH)-2010-1-19 Dr.GRR,J

judgment of this Court in Municipal Corporation of

Visakhapatnam case (2 supra), it is considered fit to quash the

proceedings against him, as no sanction of the Central Government

was obtained by the prosecuting agency till date to proceed against

him.

12. In the result, the Criminal Petition is allowed quashing the

proceedings in CC No.354 of 2015 on the file of I-Additional Judicial

Magistrate of First Class, Warangal, against the petitioner - A1.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J February 04, 2022 KTL