Telangana High Court

Smt.Kolla Nehru Mala Rowthu Neha vs The State Of Telangana on 17 October, 2024

        THE HONOURABLE SMT. JUSTICE K. SUJANA

            CRIMINAL PETITION NO.2421 OF 2024


ORDER:

This Criminal Petition is filed under Section 482 of the Code

of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), by the

petitioners/accused Nos.1 and 3 to 5 seeking to quash the

proceedings against them in C.C.No.6813 of 2023 on the file of

the III Additional Chief Metropolitan Magistrate, Nampally,

Hyderabad, registered for the offences punishable under Sections

447, 363, 365, 368, 341, 343 and 346 read with Sections 34, 109

and 102B of the Indian Penal Code, 1860 (for short, 'IPC').

2. The backdrop of the instant case is that on 15.06.2022

respondent No.2/de facto complainant lodged a complaint before

the police against the petitioners stating that on 15.06.2022 at

about 05.00 P.M. when his elder son, namely, Master Sumer Teja

Kolla was playing cricket at his house, four persons forcibly

kidnapped his son. It is further stated that respondent No.2

suspects, petitioner No.1, who is his ex-wife for the said incident,

as such, he approached the police for taking necessary action.

3. Basing on the said complaint, the police registered a case in

Crime No.453 of 2022, for the offence under Sections 447, 363,

365, 368, 341, 343 and 346 read with Sections 34, 109 and 102B

of IPC and after completion of investigation, they filed charge

sheet vide C.C.No.6183 of 2023, before the learned III Additional

Chief Metropolitan Magistrate, Nampally, Hyderabad.

4. Heard Mr.Sivaraju Srinivas, learned Senior Counsel

representing Mr.B.Balaji, learned counsel for the petitioners;

Dr.S.Prasanth, learned Assistant Public Prosecutor for

respondent No.1-State and Mr.K.S.Suneel, learned counsel for

respondent No.2.

5. Learned counsel for the petitioners submitted that the

marriage of petitioner No.1/ex-wife and respondent No.2 was

performed on 09.05.2007 as per the Hindu rites and customs. At

the time of marriage, the parents of petitioner No.1 gave

Rs.10,00,000/-, 30 tulas of gold ornaments and adapaduchu

katnam to respondent No.2 towards dowry. After the marriage,

petitioner No.1 joined the conjugal society with respondent No.2

in Hyderabad. He further submitted that respondent No.2 and

his family members used to insult petitioner No.1 before the

relatives and also demanded additional dowry, therefore,

petitioner No.1 lodged a complaint before the police against

respondent No.2 and his family members, thereafter the police

registered a case in Crime No.305 of 2017 against respondent

No.2 and his family members for the offence punishable under

Section 498A of IPC. Later, petitioner No.1 filed maintenance case

and DVC case before the trial Court.

6. Learned counsel for the petitioner contended that

respondent No.2 filed Writ of Habeas Corpus before this Court,

vide W.P.No.41534 of 2017 seeking to produce his son, namely,

Sanjit Kolla before the Court from the illegal custody of

respondent No.8 therein and the same was disposed of, granting

visitation rights to petitioner No.1 till the disposal of F.C.O.P.

pending before the trial Court. It is further contended that

petitioner No.1 being natural and biological mother of the child,

she has every right to visit her child and the question of kidnap

does not arise. Therefore, prays for quash of proceedings against

the petitioners in C.C.No.6813 of 2023 on the file of the III

Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.

7. Learned Assistant Public Prosecutor submitted that the

detailed statement of the elder son of petitioner No.1 was

recorded under Section 164 of Cr.P.C. wherein he stated that how

he was kidnapped from his house while he was playing and

where to he was taken and that accused No.2 had admitted the

commission of offence. Therefore, prayed this Court to dismiss

the petition.

8. On the other hand, learned counsel appearing for

respondent No.2 opposed the submissions made by the learned

counsel for the petitioners stating that earlier petitioner No.1 filed

Criminal Petition No.6927 of 2022 seeking to quash the

proceedings initiated against her in Crime No.453 of 2022 and

the same was dismissed by this Court observing that when the

care and custody of the child was given to respondent No.2

herein, how petitioner No.1 has got the custody of the child and

the same has to be investigated. Further, the submission of

learned Assistant Public Prosecutor for respondent No.1 as well

as learned counsel for respondent No.2 is that petitioner No.1 by

hiring some persons trying to grab the custody of the child in

question. It is further observed that though mother is a natural

guardian, the custody of the child has to be taken into

consideration and it requires investigation.

9. Having regard to the rival submissions and material

available on record, the main contention of the learned counsel

for the petitioners is that when petitioner No.1 is a natural

guardian and taking care of her child cannot be termed as

'kidnap' and the offence under Section 363 of IPC does not attract

against petitioner No.1. Further, it appears that there are

matrimonial disputes between the parties and to that effect

different cases are filed against each other.

10. It is pertinent to mention that in Writ Petition No.41534 of

2017, this Court directed respondent No.2/husband to make

arrangements in Hyderabad for the stay of petitioner No.1/wife

along with younger child while granting visitation rights to him. It

is the specific contention of respondent No.2 that though he

made necessary arrangements for the stay of petitioner No.1

along with his younger child, petitioner No.1 is not willing to stay

there and she violated the orders of this Court, thereupon, this

Court gave custody of the child to respondent No.2.

11. That apart, the statement of Master Sumer Teja recorded

under Section 164 of Cr.P.C. unfolds that some unknown

persons kidnapped him and thereafter, respondent No.2 gave a

complaint before the police.

12. Having regard to the rival submissions made by both the

learned counsel and having gone through the material available

on record, to quash the proceedings under Section 482 of Cr.P.C,

the Court has to see whether the averments in the complaint

prima facie shows that it constitute the offence as alleged by the

Police.

13. At this stage, it is pertinent to note the Judgment of the

Hon'ble Supreme Court in State of Madhya Pradesh vs.

Surendra Kori 1, wherein in paragraph No.14 it is held as

follows:

"The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a Court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and

(2012) 10 Supreme Court Cases 155

cannot be seen in their true perspective without sufficient material."

14. As seen from the statement of witnesses, it reveals that

petitioner No.1 did not take care of the child as such, this Court

given the custody to his father. In view of the factual matrix of

the case on hand, the allegations against the petitioners

supported by the statement of witness serious in nature which

have impact on the society at large and the truth or otherwise

would be revealed only after full-fledged trial.

15. In view of the above discussion as well as the law laid down

by the Hon'ble Supreme Court in State of Madhya Pradesh

(supra), this Court does not find any merit in the criminal

petition to quash the proceedings against the petitioners and the

same is liable to be dismissed.