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2013 DIGILAW 719 (AP)

P. Venkat Reddy v. State of A. P.

2013-09-02

C.PRAVEEN KUMAR

body2013
ORDER C. Praveen Kumar, J. 1. The present applications are filed by A-2, A-3 and A-1 respectively under Section 482 Cr.P.C. seeking quashing of proceedings in C.C. No. 221 of 2011 on the file of XIV Metropolitan Magistrate, Cyberabad, L.B. Nagar, Ranga Reddy District. A private complaint filed by K. Madhava Reddy, father of K. Rajani, was referred to police under Section 156(3) Cr.P.C. On reference, the said case came to be registered as Crime No. 88 of 2011 of Saroornagar Women Police Station, Cyberabad for the offences punishable under Sections 498A, 506 and 420 of I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. The police investigated into the matter and filed a charge-sheet. 2. The substance of the allegations in the charge-sheet are as under: The second respondent herein i.e., Sri K. Madhava Reddy performed the marriage of his daughter K. Rajani with A-1 on 09.04.2006. On 20.04.2006, A-1 and his wife Smt. K. Rajani left for U.S.A. It is alleged that prior to the engagement function, the accused insisted for dowry and gold ornaments and as such on 10.12.2005, the respondent paid a sum of ` 30,00,000/- and also gave gold ornaments weighing about 120 tolas worth ` 9,60,000/- as dowry in the presence of elders. After going to U.S.A. the daughter of the complainant who is an M.B.A. graduate was able to earn ` 15,00,000/- within a period of 8 months and her entire earnings were deposited in a joint account opened by A-1 at Florida. The said account came to be opened only for the purpose of getting green card in U.S.A. The first accused was harassing and threatening his wife for additional dowry and at his instance, A-2 and A-3 who are the parents of A-1 visited the house of the second respondent at Hyderabad and demanded additional dowry as directed by the first accused. Out of love and affection towards his daughter the second respondent used to pay huge amounts to A-2 and A-3 on several occasions. The charge-sheet discloses payment of ` 10,00,000/- in December, 2007, ` 12,00,000/- in the first week of January, 2008, ` 8,00,000/- in the last week of January, 2008, ` 6,00,000/- in the first week of February 2008 and ` 4,00,000/- in the last week of February 2008. The charge-sheet discloses payment of ` 10,00,000/- in December, 2007, ` 12,00,000/- in the first week of January, 2008, ` 8,00,000/- in the last week of January, 2008, ` 6,00,000/- in the first week of February 2008 and ` 4,00,000/- in the last week of February 2008. Not being satisfied with the amounts paid, Accused 2 and 3 were demanding the respondent to transfer a residential plot in the name of A-1. Seeing the attitude of the accused, the respondent refused to transfer the same. Ultimately, Accused 2 and 3 declared that if amounts as demanded were not paid and if the residential plot is not registered in the name of A-1, they will make A-1 file an application for dissolution of marriage in Courts at U.S.A. As the respondent could not fulfil their demands, A-1 at the instance of A-2 and A-3 approached the court at Circuit, Eleventh Judicial Circuit in for Miami Dade Country Florida and filed case for dissolution of the marriage. Thus, the charge-sheet discloses that the accused received an amount of ` 93,53,000/- towards dowry and are also the custodians of gold ornaments given at the time of marriage. The charge-sheet further refers to instances of harassment which were informed by the daughter of the respondent to the respondent. The daughter of the complainant/respondent came to India in the month of July, 2009 to attend the marriage of her brother in Hyderabad. Even at that time A-2 and A-3 came to the house of the respondent, demanded her to get additional dowry and also threatened her with dire consequences in the presence of elders and well-wishers, who came to the marriage. The first accused did not even attend the marriage of his brother-in-law and stayed away on flimsy grounds. During the course of investigation, the Investigating Officer could not examine the daughter of the complainant as she left India in the month of June, 2006 and as such he obtained a letter written by her through post narrating the harassment sustained by her in the hands of A-1 to A-3. Basing on these allegations, police filed charge-sheet against A-1 to A-3, which is the subject matter of the challenge in the present case. 3. Relying upon the unreported Judgment of this Court in Criminal Petition Nos. Basing on these allegations, police filed charge-sheet against A-1 to A-3, which is the subject matter of the challenge in the present case. 3. Relying upon the unreported Judgment of this Court in Criminal Petition Nos. 2976 of 2009 and 4921 of 2010 the learned counsel for the petitioners mainly submits that the statement of the witnesses sent by registered post cannot be treated as statements recorded under Section 161 Cr.P.C. and in the absence of any other material connecting the petitioners with a crime, he submits that continuation of proceedings against the petitioners would be an abuse of process of law. As the allegations in the charge sheet, do not disclose any acts of harassment committed by A-1 in India and in view of the bar under Section 188 Cr.P.C., he submits that the Courts at Hyderabad will get jurisdiction to try the matter only after obtaining sanction from the Central Government. He would further submit that the allegations against A-2 and A-3 are also based on the statement of the daughter of the respondent and since the victim is not examined by the police, the averments made against A-2 and A-3 in the charge sheet have no legal basis. Though the learned counsel for the petitioners contended that the report given by the father of the aggrieved person is not maintainable but did not press for the same. 4. On the other hand, the learned counsel for the respondent submits that in view of Section 198(A) of Cr.P.C. even the father of the aggrieved person can lodge a report and set the criminal law into motion. He further submits that the bar under section 188 Cr.P.C. will not apply to the facts of the present case as A-2 and A-3 demanded additional dowry and also sought for registration of plot in favour of A-1 at he instance of A-1. As such he submits that the bar under Section 188 Cr.P.C. will not apply and nothing would prevent the courts at Hyderabad in trying the offence even against A-1. In view of the nature of allegations made in the charge-sheet, he submits that no miscarriage of justice would be cause if the accused are allowed to face the trial. 5. As such he submits that the bar under Section 188 Cr.P.C. will not apply and nothing would prevent the courts at Hyderabad in trying the offence even against A-1. In view of the nature of allegations made in the charge-sheet, he submits that no miscarriage of justice would be cause if the accused are allowed to face the trial. 5. The undisputed facts which emerge out are that the marriage between A-1 and the daughter of the second respondent took place on 09.04.2006 and within 15 days A-1 along with his wife K. Rajani left India. Thereafter A-1 never returned to India till date. The charge-sheet discloses that the daughter of the second respondent came to India in the month of July 2009 on the eve of her brother's wedding and thereafter she left to U.S.A. Since then she has been staying in U.S.A. 6. Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court namely: (i) to give effect to an order under Cr.P.C. (ii) to prevent an abuse of the process of court, and (iii) to otherwise secure ends of justice. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice for the administration of which alone is exists or to prevent abuse of the process of the court. The exercise of inherent power would normally depend on facts and circumstances of each case, but as held in Susheel Suri's case (2011) 5 SCC 708 the common thread which run through all the decisions on the subject is that the court would be justified in involving it's jurisdiction where the allegations made in the complaint or charge-sheet as the case may be, taken at their face value and accepted in their entirety do not constitute the offences alleged. The plenitude of the power under Section 482 Cr.P.C. by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and nature of power itself demands that it's exercise is sparing and only in cases where the High Court, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of process of law. The width and nature of power itself demands that it's exercise is sparing and only in cases where the High Court, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of process of law. The said exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of process of the law. The High Court have to consider the facts and circumstances of each case to determine whether it is a fit case in which inherent power may be invoked. The powers possessed by the High Court under Section 482 of the code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State 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 magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage (Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305 and Raghubir Satan (Dr.) v. State of Bihar AIR 1964 SC 1 ) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complaint that the ingredients of the offence or offences are disclosed and thee is no material to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. [Dhanalakshmi v. R. Prasanna Kumar 1990 Supp. SCC 686 and State of Bihar v. P.P. Sharma AIR 1996 SC 309 ). 7. Section 498A of I.P.C. reads as under: 498-A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation:- For the purposes of this section, "cruelty" means:- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 8. Sections 3 and 4 of the Dowry Prohibition Act reads as under: 3. Penalty for giving or taking dowry:- (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years]. (2) Nothing in sub-section (1) shall apply to, or in relation to-- (a) presents which are given at the time of marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act; (b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made in this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.] 4. Penalty for demanding dowry:-If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.] 9. In Criminal Petition No. 2976 of 2009 and 4921 of 2010 this Hon'ble Court after referring to Sections 161 and 162 Cr.P.C. held that the word "investigation" includes examination of the witnesses, confronting the witnesses on the basis of material collected by the Investigating Officer and also the version of the person who is aggrieved because of the said complaint. The court went on to say that "the first duty of the Investigating Officer is to findout the probability and truthfulness of the complainant unless otherwise complainant's version appraised by the Investigating officer with the facts and circumstances of the case. The court held that mere production of the complaint without proper examination cannot be called as statement recorded during investigation." The situation in the present case is slightly different. The court held that mere production of the complaint without proper examination cannot be called as statement recorded during investigation." The situation in the present case is slightly different. The report about the alleged acts of harassment was given by the father of the aggrieved person who was informed about the alleged harassment by his daughter. It is true that the said version given by the father in so far as the harassment committed by A-1 is hearsay but that by itself cannot be a ground to quash the proceedings in view of the statement of the father and other witnesses who speak about alleged harassment suffered by the daughter of the respondent in the hands of A-1. In the judgment relied upon by the counsel for the petitioner, the court held that "mere production of the complaint without proper examination cannot be called as statement recorded during investigation". There is no dispute with regard to said proposition of law. But in the instant case, as stated earlier, the daughter of the respondent is not examined as a witness. Even if the letter written by L.W. 3 i.e., the daughter of respondent is eschewed from consideration, it will not improve the case, since the statement of the respondent i.e., the father-in-law of A-1 refer to the alleged act of harassment by A-1 on L.W. 3. The credit worthiness of his statement coupled with other material can only be tested during the course of trial. The entire case cannot be thrown out at this stage due to non-examination of the daughter of the respondent. Further, a reading of the charge sheet and the statement of the respondent recorded under Section 161 Cr.P.C. will disclose that A-2 and A-3 who are parents of A-1 came to the house of second respondent and demanded additional dowry. The arguments of the learned counsel for the petitioner that as the allegations in the charge sheet disclose that A-2 and A-3 came to the house of second respondent and demanded additional dowry at the instance of A-1 and as such Courts in Hyderabad will get jurisdiction to try the case against A-1 without previous sanction of the Central Government cannot be accepted as incidents of harassment alleged against A-1 took place only in U.S.A. 10. At this juncture, it will be appropriate to refer to Section 188 Cr.P.C. 188. At this juncture, it will be appropriate to refer to Section 188 Cr.P.C. 188. Offences 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 committed 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. 11. A reading of the above section would show that whenever an offence is committed outside India by a citizen of India, he would be dealt with in respect of such offence as if such offence had been committed at any place of India at which he may be found and that the offence would be enquired into or tried in India only after obtaining sanction of the Central Government. 12. The learned counsel for the second respondent submits that offence relating to the Dowry Prohibition Act has been committed in India and since part of action relating to the offence punishable under Sections 3 and 4 of the Dowry Prohibition Act took place in India, the learned Magistrate can proceed against A-1 in sofar as the offences punishable under Sections 3 and 4 of the Dowry Prohibition Act. 13. The charge-sheet does not anywhere disclose payment of dowry to A-1 and as observed earlier both A-1 and L.W. 3 left India within a period of two weeks after their marriage. The charge-sheet is also silent as to any act of harassment committed by A-1 in India during the said period. But it refers to acts of harassment committed by A-1 in U.S.A. 14. The Judgment of this Court in Valluri Ramachandra Rao and others v. State of A.P. and another 2007(1) ALT (Crl.) 293 (A.P.) : 2007(1) ALD (Crl.) 61 (A.P.) relied upon by the learned counsel for the respondent will not be of any help to him for the reason that A-1 never made any demand directly with the respondent. It was a case where the threats of demand for additional dowry made through telephone was received where the respondent was living. It was a case where the threats of demand for additional dowry made through telephone was received where the respondent was living. In that view of the matter, this court held that the Magistrate Court at Tanuku will have jurisdiction to try the offence. But the situation in the present case is totally different. As observed earlier, no demands were made by A-1 with the respondent and neither the second respondent nor the victim in her letter allege that the first accused made a call to the second respondent demanding payment of additional dowry or property. The issue of territorial jurisdiction is not the subject matter of the consideration in this case, but the main argument of the petitioners appears to be that if the letter of L.W. 3 is eschewed from consideration there is no other material to connect the accused with the alleged act of harassment. As stated earlier, even if the written statement of L.W. 3 is taken into consideration the same would not improve the case of prosecution. The charge-sheet which also took consideration the statement of L.W. 3 did not refer to any act of harassment by A-1 in India and also with regard to payment of any dowry to A-1 by the respondent herein. As stated earlier the question would be whether the statement of L.W. 2, which is based on the information furnished by L.W. 3 coupled with other material can be a basis for prosecuting the accused. The credit worthiness of the said material can be tested only during the course of trial. Section 188 Cr.P.C. contemplates a situation where the offences even if committed outside India, have to dealt with as if they have been committed in any place within India and for that previous sanction of Central Government is to be obtained before proceeding further. In the absence of any allegation of harassment by A-1 in India, the learned Magistrate has to proceed against A-1 only in accordance with Section 188 Cr.P.C. There is material in the form of the statement of L.W. 2;-. In the absence of any allegation of harassment by A-1 in India, the learned Magistrate has to proceed against A-1 only in accordance with Section 188 Cr.P.C. There is material in the form of the statement of L.W. 2;-. though not direct, to show that A-1 harassed the daughter of the respondent even in U.S.A. In view of the Judgment of the Apex Court in Thota Venkateswarlu v. State of A.P. 2011(3) ALT (Crl.) 137 (SC) : 2011(6) SCJ 1003: AIR 2011 SC 2900 , the Magistrate shall take cognizance of the matter against A-1 but cannot proceed further till a previous sanction is obtained. 15. The argument of the learned counsel for the petitioner that the present case came to be registered subsequent to the filing of divorce petition before the Court in U.S.A. and that the said complaint has been filed with a malafide intention only to wreck vengeance against the accused cannot be accepted. The Judgment of the Apex Court in Pratibha v. Rameshwari Devi and others 2007(3) ALT (Crl.) 323 (SC) : (2007) 12 SCC 369 and also the Judgment of this Court in Rapolu Anand v. State of A.P. rep. by its SHO P.S., Hanamkonda rep. Laws (APH)-2011-11-63 LAP-2011-0-377, answers the issue. The Court held that grant of divorce or pendency of divorce proceedings does not absolve the accused of their alleged criminal activity, which took place prior to divorce. 16. Coming to the allegations made against A-2 and A-3, the charge-sheet specifically allege that A-2 and A-3 have been visiting the house of the respondent number of times and demanding payment of additional dowry apart from registration of plot in the name of A-1. The charge-sheet further discloses that A-2 and A-3 insisted the respondent to pay more amount, failing which they threatened that the first accused will discontinue his marital relationship with the daughter of the respondent. Unable to bear the threats and in order to save the matrimonial life of his daughter, the respondent/complainant paid huge amounts on various dates which are specifically narrated in the charge-sheet. The charge sheet further discloses that at the instance of A-2 and A-3, the first accused filed an application for divorce in a Court at U.S.A. Prior to the filing of said application for divorce, A-2 and A-3 insisted the complainant/respondent to transfer the house-plot in favour of the first accused. The charge sheet further discloses that at the instance of A-2 and A-3, the first accused filed an application for divorce in a Court at U.S.A. Prior to the filing of said application for divorce, A-2 and A-3 insisted the complainant/respondent to transfer the house-plot in favour of the first accused. As the complainant/respondent failed to comply with their demand, the divorce application came to be filed in U.S.A. When the daughter of the complainant came to India, for the marriage of her brother in the month of July, 2009 A-2 and A-3 are alleged to have demanded additional dowry amounts in the presence of elders. A reading of the charge-sheet would prima facie disclose ingredients constituting offences punishable under Sections 498A and 506 I.P.C. and 3 and 4 of the Dowry Prohibition Act. 17. In view of the allegations made in the charge-sheet, which are based on the statement of L.W. 2, it cannot be said that continuance of proceedings against the accused 2 and 3 would be an abuse of process of law. In view of the above findings, Criminal Petition No. 879C of 2011 filed by A-2 and A-3, to quash the proceedings in C.C. No. 221 of 2011 on the file of XIV Metropolitan Magistrate, Cyberabad, L.B. Nagar, Ranga Reddy District, is dismissed, while Criminal Petition No. 9795 of 2011 filed by A-1 is disposed of with a direction that the court shall not proceed further till a previous sanction of the Central Government is obtained. As sequel to it, miscellaneous petitions, pending if any, shall stand closed.