Md. Khaleel vs The State Of Telangana
2022 Latest Caselaw 1316 Tel

       THE HONOURABLE SRI JUSTICE K. LAKSHMAN

              CRIMINAL PETITION No.2219 OF 2019

ORDER:

This Criminal Petition is filed under Section 482 of the Code of

Criminal Procedure,1973 (for short, 'the Cr.P.C.') to quash the

proceedings in C.C.No.275 of 2018 pending on the file of XIII

Additional Chief Metropolitan Magistrate, Hyderabad. The petitioner is

sole accused in the said case. The offence alleged against the petitioner

is under Section 498-A of IPC.

2. Heard Sri Mummaneni Srinivasa Rao, learned counsel for the

petitioner and learned Asst. Public Prosecutor for 1st respondent-State.

In compliance of the order dated 26.04.2019, learned counsel for the

petitioner has filed a memo along with the cover returned unserved with

an endorsement 'Refused'. As per law, refusal amounts to service.

Therefore, there is no representation on behalf of 2nd respondent.

3. As per the charge sheet, the marriage of the petitioner with 2nd

respondent was performed on 02.06.2003. Thereafter, matrimonial

disputes arose between them.

4. Referring to the certificate dated 22.09.2016 issued by the

Office of the Government, Qazi of Qile Mohammednagar Bara Mahal,

Qazi Gally, Golkonda, Hyderabad, declaring divorce, the learned

counsel for the petitioner would submit that the petitioner has obtained

divorce and the said marriage was dissolved. Even then, the 2nd

respondent has lodged a complaint on 30.11.2016 and the Investigating

Officer has registered a case in Cr.No.692 of 2016. After completion of

investigation, the Investigating Officer has laid charge sheet. Learned

counsel for the petitioner would submit that there is delay in lodging a

complaint and it is barred by limitation in terms of Section 468 of

Cr.P.C. Even then, without considering the same, the Investigating

Officer has laid the charge sheet. The proceedings in C.C.No.275 of

2018, initiated at the instance of 2nd respondent, is an abuse of process

of law. With the said submissions, learned counsel for the petitioner

sought to quash the proceedings in C.C.No.275 of 2018.

5. Learned Public Prosecutor, on instructions, would submit that

the person who issued divorce certificate, dated 22.09.2016 is not

competent to issue the said certificate. The divorce declaration by the

petitioner herein is not in terms of the Mohammedan personal law. The

limitation aspect is a triable issue which the trial Court has to consider.

The said defence taken by the petitioner cannot be considered in an

application under Section 482 of Cr.P.C. The petitioner has to face trial

and prove his innocence during the course of trial before the Court

below. Instead of doing so, he has filed the present petition. With the

said submissions, he sought to dismiss the petition.

6. As stated above, the marriage of the petitioner with the 2nd

respondent was performed on 02.06.2003. According to the petitioner,

the said marriage was dissolved and a certificate dated 22.09.2016 was

issued. The petitioner failed to explain the competency/authority of the

said Qazi of Qile Mohammednagar Bara Mahal, Qazi Gally, Golkonda,

Hyderabad to issue the said certificate. However, the contention of the

learned counsel for the petitioner herein that the petitioner has paid

dower to the 2nd respondent is also a triable issue. Thus, the very

dissolution of the marriage is in dispute and the power of the Qazi who

issued the divorce certificate is also in dispute. Therefore, the petitioner

herein cannot claim the limitation in terms of Section 468 of Cr.P.C.

Thus, there are several triable issues. The Petitioner has to face trial and

prove his innocence during the course of trial. The defences taken by the

petitioner cannot be considered in an application filed under Section 482

of Cr.P.C.

7. 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

Maharashtra1, 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 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

. AIR 2019 SC 847

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.

8. In Skoda Auto Volkswagen India Private Limited Vs. The

State of Uttar Pradesh and Ors2, 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 rarest of rare cases

with extreme caution.

9. In view of law laid down by the Hon'ble Apex Court and in

view of the above said discussion and the petitioners fails to make out a

case, the criminal Petition is liable to be dismissed.

10. In view of the above discussion, the Criminal Petition is dismissed.

As a sequel, the miscellaneous Petitions, pending if any, shall stand closed.

__________________ K. LAKSHMAN, J Date:21.03.2022

AIR 2021 SC 931,