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2014 DIGILAW 139 (AP)

Sahel Rabiani v. Mohammed Salman Murtaza

2014-01-31

R.KANTHA RAO

body2014
Judgment Heard Sri Rajagopalavan Tayi learned counsel appearing for the petitioner/de facto complainant, Sri K. Chandra Reddy representing Smt. D. Sangeetha Reddy-the counsel appeared for the de facto complainant in Criminal Petition No.7734 of 2013 and Sri O. Kailashnath Reddy-learned counsel appearing for the first respondent/accused. Miss. Sahel Rabiani the de facto complainant herein who is an Iranian National came down to India in the year 2005 for higher education in Andhra University, Visakhapatnam in the State of Andhra Pradesh. As per her version, she got into relationship with the first respondent who is residing in Pedda Waltair, Visakhapatnam. Both of them lived together for one and half years and developed liking to each other. In the month of May, 2013, they got into physical relation, which resulted in pregnancy of the de facto complainant. Her Doctor Smt. G. Rajini practicing at Lazarus Hospital, Visakhapatnam confirmed the pregnancy. When she shared the news of her pregnancy with her boy friend-the first respondent herein, he started avoiding her and his family members started defiling her image in front of others who knew her and were advising her to abort the pregnancy. With the aforesaid facts, she lodged the report in III-Town Police Station, Visakhapatnam on 16-7-2013. Basing on her report a case in Crime No.507 of 2013 was registered for the offences punishable under Sections 417, 420 and 376 of I.P.C. First respondent was arrested and was remanded to judicial custody. While the first respondent was in judicial custody, the de facto complainant herself came to an Advocate and filed Criminal Petition No.7734 of 2013 on the file of this Court seeking to quash the First Information Report in Crime No.507 of 2013 of III Town Police Station, Visakhapatnam. Her counsel in Criminal Petition No.7734 of 2013 was Smt. G. Sangeetha Reddy of Andhra Pradesh High Court Advocates Association. She stated interalia in the Criminal Petition that she approached the police only for the purpose of counseling and she never gave any report to the police alleging any sexual assault or cheating committed by first respondent. She was present before the Court along with her counsel and specifically stated that she was not willing to prosecute the first respondent and that she had no objection to quash the First Information Report in Crime No.507 of 2013 of III Town Police Station, Visakhapatnam. She was present before the Court along with her counsel and specifically stated that she was not willing to prosecute the first respondent and that she had no objection to quash the First Information Report in Crime No.507 of 2013 of III Town Police Station, Visakhapatnam. By that time, the first respondent was in judicial custody in connection with the aforesaid crime. Considering the statement made by the de facto complainant and also the fact that the affair between the parties is a private one and further considering that the offence was not a serious one, this Court quashed the First Information Report in exercise of the powers under Section 482 of Cr.P.C. Now, the de facto complainant filed the present petition by engaging a counsel, contending that she never engaged Smt. D. Sangeetha Reddy as her counsel and she never saw her and that she did not give instructions to Smt. G. Sangeetha Reddy Advocate to file the Criminal Petition to quash the First Information Report. According to her, the uncle of the first respondent engaged a counsel and filed the quash petition. She went to the extent of saying that she did not even sign the vakalath nor gave any material papers to be filed in the Court. In the alternative, she contended that she agreed for compromise only with a fond hope that her marriage would be performed with respondent No.1, but she never intended to withdraw the report unless and until the marriage is performed. According to her, the parents of the first respondent pressurized her to withdraw the report and assured her that they would perform her marriage with first respondent and also put a condition that if the case is not withdrawn, they would not perform the marriage. She stated that she was alone in India and as she and first respondent were in love, she considered the proposal of the parents of first respondent for withdrawing the same only on the promise made by them that they would perform her marriage with first respondent. She further submitted that she is an Iranian Citizen and she has no knowledge about Indian Laws and the procedure, the first respondent’s father and his uncle engaged the counsel, with a bonafide hope that her marriage would be performed with first respondent, she agreed to appear before the Court. She further submitted that she is an Iranian Citizen and she has no knowledge about Indian Laws and the procedure, the first respondent’s father and his uncle engaged the counsel, with a bonafide hope that her marriage would be performed with first respondent, she agreed to appear before the Court. She alleged that the parents of the first respondent back stabbed her and did not settle the dispute. Contending as above, she seeks to recall the order passed by this Court. The learned counsel appearing for the petitioner/de facto complainant would submit that the uncle and father of the first respondent engaged a counsel and the de facto complainant did not give any instructions to the counsel and she did not know the contents of the Criminal Petition. He further submits that they brought her to the Court promising to perform her marriage with first respondent and thereafter she was cheated by them and therefore, the order is liable to be recalled. Sri K. Chandra Reddy Senior Counsel appearing for Smt. D. Sangeetha Reddy would submit that the de facto complainant approached Smt. D. Sangeetha Reddy and gave instructions to file the Criminal Petition to quash the First Information Report. Basing on the information furnished by her only, the quash petition was prepared and filed into Court, now she came forward with a false theory by going to the extent that she does not known the counsel. In the Criminal petition filed by her, she specifically stated that she never gave any report to the police alleging any sexual assault or any cheating committed by the first respondent. Her version is that she only approached the police for the purpose of counseling and the police prepared a report, basing on which, they registered the case against the first respondent. She was present before the Court along with her counsel and she affirmed the contents of the Criminal Petition and also stated in terms that she was not willing to prosecute the first respondent and she has no objection to quash the First Information Report, whereupon, this Court quashed the First Information Report. Sir O. Kailashnath Reddy learned counsel appearing for the first respondent would submit that the present application filed to recall the order is only filed with a fraudulent intention to harass the first respondent. Sir O. Kailashnath Reddy learned counsel appearing for the first respondent would submit that the present application filed to recall the order is only filed with a fraudulent intention to harass the first respondent. According to him, since the de facto complainant voluntarily filed the Criminal Petition by engaging a counsel, she cannot take a different stand now and in view of the contradictory statements made by the de facto complainant, no reliance can be placed on her version and therefore, the order shall not be recalled. Sri O.Kailashnath Reddy also brought to the notice of this Court that after expiry of the study Visa, the petitioner over stayed in India and thereafter in pursuance of the orders of Ministry of Home Affairs and State Government, the petitioner was deported from Visakhaptam on 15-11-2013 and as she was unable to purchase the air tickets, the police purchased the air tickets from the Unit Welfare Fund of Visakhapatnam City for her journey from Visakhapatnam to Hyderabad and from there to Tehran (Iran). The learned counsel appearing for the petitioner/de facto complainant relied on the case of Challa Venkata Rami Reddy @ Reddy and another Vs. Public Prosecutor, High Court of A.P. (2013 (2) ALD (Crl.) 916 (AP) Hyderabad and another, rendered by this Court, taking the view that in every case wherein the complainant or victim has no objection for quashment, the FIR/complaint cannot be quashed under Section 482 of Cr.P.C., in a routine and mechanical way, more particularly when it is doubtful whether the de facto complainant voluntarily approached the Court for quashment. This Court expressed the opinion, where there is compromise between the parties, this Court shall not invoke jurisdiction under Section 482 Cr.P.C., to quash the FIR/charge sheet without taking into consideration the nature of crime and its impact on the society at large. The aforesaid case relates to the Police Constables raiding a gabling place and extorting money of Rs.80,000/- (Rupees eighty thousand only) and returning Rs.45,000/- (Rupees forty five thousand only) to the persons from whom the amount was seized and keeping the remaining amount with them without depositing in the Police Station. This Court considered that the aforesaid offence is very serious one concerning the society at large, but the facts of the present case are altogether different. This Court considered that the aforesaid offence is very serious one concerning the society at large, but the facts of the present case are altogether different. Even in the First Information Report lodged by the de facto complainant, she did not state that under a promise to marry her, the first respondent developed physical contacts with her. She mentioned specifically in the First Information Report that she and first respondent developed liking to each other, the first respondent gave her hope that both of them would spend their life together and as time passed along, their relation became very strong and sentimentally both of them were attached strongly and in the month of May, 2013, they got into physical relationship and this resulted in her pregnancy. The Report shows that both of them were in live in relationship for one and half years. Therefore, this is not a case wherein, the first respondent had sexual intercourse against the will of the de facto complainant nor played any deception against her to have physical relationship with the de facto complainant. The offence punishable under Section 376 of I.P.C., in the instant case is not at all attracted. From the contents of the First Information Report, the first respondent cheating the de facto complainant also seems to be doubtful. From the contents of the First Information Report, what all can be understood is that both of them intended to marry each other and subsequently the first respondent did not agree to marry the de facto complainant. In the opinion of this Court, the offence in the present case cannot be said to be exceptionally grave in character concerning the society at large. The offence in the considered opinion of this Court is not of serious in nature and is said to be a private one between the de facto complainant and the first respondent. Therefore, it cannot be said that the FIR, in this case cannot be quashed in exercise of the powers under Section 482 of Cr.P.C. As regards, the other contention namely, the petitioner never engaged Smt.D.Sangeetha Reddy as her counsel and never gave instructions to file the Criminal Petition to quash the First Information Report, I would like to state that though the petitioner is an Iranian national, she was prosecuting her post graduate studies in Andhra University, Visakhapatnam and she is well versed in English. She signed the Vakalth and Affidavit. She was present before the Court and was orally examined, she stated in clear and unequivocal terms that she never gave the report making allegations against the first respondent, but only approached the police for counseling. She also stated specifically that she was not willing to prosecute the first respondent and she had no objection to quash the first information report. Taking into consideration the categorical assertion and willingness expressed by the petitioner/de facto complainant, this Court exercised its jurisdiction under Section 482 of Cr.P.C., and quashed the first information report. If the first respondent went back his promise to marry the de facto complainant, she can pursue her remedies in accordance with law, but she cannot approach this Court with false and distorted statements, seeking to recall the order passed by this Court by quashing the first information report. When once she attended before the Court and stated that she compromised the matter with the first respondent and had no objection to quash the first information report, she cannot rescile from her version. Once the willingness is communicated to this Court and when this Court in consideration thereof quashed the First Information Report, the issue cannot be reopened. She did not state before this Court that she would agree for compromise only if the first respondent marries her. She did not make any such statement when she appeared before the Court. Therefore, she is precluded from raising such a plea as a ground for recalling the order passed by this Court. Absolutely, I see no merits in the petition filed by the petitioner/de facto complainant. Accordingly, the Criminal Petition Miscellaneous Petition is dismissed.