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2018 DIGILAW 891 (AP)

Komaram Balu v. State of Telangana

2018-12-10

P.KESHAVA RAO

body2018
ORDER : P. Keshava Rao, J. 1. Heard the learned counsel for the petitioner and the learned counsel appearing for the second respondent. 2. The present criminal revision case is filed questioning the order dated 22.09.2017 passed in Crl.M.P. No. 267 of 2017 in C.C. No. 134 of 2017 on the file of the Court of the Judicial Magistrate of First Class, Luxettipet, dismissing the petition filed under Section 239 Cr.P.C. to discharge the petitioner for the offences punishable under Sections 498-A and 506 r/w 109 IPC. 3. The brief facts of the case are that pursuant to the complaint, dated 9.02.2017 lodged by the second respondent before the Sub-Inspector of Police, Dandepalli, a crime was registered vide FIR No. 14 of 2017 for the offences under Sections 498-A and 506 r/w 34 IPC. It is the case of the second respondent that about 27 years back, she married the petitioner and it was a love marriage. After the marriage, they lived happily for a period of 3 years and they were blessed with a son. After the son was born, the petitioner started maintaining distance from her and she was being neglected. In that context, a panchayat was held in the presence of caste elders. The petitioner said to have undertaken to take care of his son after he completes 10th standard. However, as the petitioner is not coming forward to take care of them, when they approached the petitioner, he and his brothers threatened them. In fact, on 22.01.2017 when the 2nd respondent came to their village and asked him, he and his brothers abused them in filthy language and threatened to kill them. In those circumstances, since there is a threat to their lives, she filed the complaint. After investigation, a charge sheet has been filed against the petitioner for the offences under Sections 498-A and 506 IPC. The learned Magistrate after taking cognizance of the offences against the petitioner and other accused, numbered the case as C.C. No. 133 of 2017. During the pendency of the said calendar case, the petitioner filed Crl.M.P. No. 267 of 2017 under Section 239 Cr.P.C. to discharge him for the above said offences. The prosecution filed counter denying the petition averments and contested the same. After hearing, the learned magistrate was pleased to dismiss the said petition by orders dated 22.09.2017. During the pendency of the said calendar case, the petitioner filed Crl.M.P. No. 267 of 2017 under Section 239 Cr.P.C. to discharge him for the above said offences. The prosecution filed counter denying the petition averments and contested the same. After hearing, the learned magistrate was pleased to dismiss the said petition by orders dated 22.09.2017. Aggrieved by the said orders, the present criminal revision case is filed. 4. Learned counsel appearing for the petitioner, contended that the order of the learned magistrate, in dismissing the petition filed under Section 239 Cr.P.C. is perverse to the facts and evidence available on record and the same is liable to be set aside. There is no prima facie case to frame charges against the petitioner for the alleged offences. According to the second respondent, the petitioner married her 27 years back and lived together only for three years and blessed with son. Thereafter, the petitioner deserted her. In fact, no dates and events are mentioned and there is no allegation of harassment for any illegal demands including the dowry to attract the provisions of Section 498-A IPC. Learned Magistrate without appreciating the facts in a proper perspective, in a casual and mechanical manner, dismissed the petition. He also contended that a perusal of the contents of the F.I.R. and the statements of list of witnesses, would not make out any prima facie case for commission of any offence, much less, the offences as alleged against the petitioner and the complaint is bereft of material particulars. The learned Magistrate also ought to have appreciated that the petitioner married one Aparna Madavi daughter of Babu Rao Madavi, Ex. Minister of Maharashtra State on 12.01.1994 at Nagpur and they were blessed with two sons aged 22 and 20 years respectively. The offence under Section 498-A IPC is barred by limitation prescribed under the Code of Criminal Procedure. At least, on that ground, the learned magistrate ought to have allowed the petition filed under Section 239 Cr.P.C. The learned counsel also brought to the notice of the Court that the learned magistrate after perusal of the record and charge sheet which goes to show that except the statements of L.Ws. 1 to 22 including the confession of the accused, there is no marriage proof to show that the de facto complainant is the wife of the accused, ought to have allowed the petition. 1 to 22 including the confession of the accused, there is no marriage proof to show that the de facto complainant is the wife of the accused, ought to have allowed the petition. Learned counsel for the petitioner emphasized the aspect that Section 498-A IPC can be invoked only when the aggrieved person is the wife and since no proof of marriage is filed, it cannot be said that the second respondent is the wife and she is entitled to file a complaint under Section 498-A IPC. 5. In order to support his contentions, the learned counsel appearing for the petitioner relied on a decision reported in ONKAR NATH MISHRA AND OTHERS v. STATE (NCT OF DELHI) AND ANOTHER, (2008) 2 SCC 561 . The relevant portion is as under: "As regards the applicability of Section 498A I.P.C., in the complaint dated 8.11.1994 there is not even a whisper of a willful conduct of appellants No. 1 and 2 of harassment of the complainant at their hands with a view to coercing her to meet any unlawful demand by them so as to attract the provisions of Section 498A read with Explanation thereto. The complaint refers to the talk the complainant purports to have had with her husband, appellant No. 3, who is alleged to have told her to come to Bijnore if she apologizes to his father; keeps him happy; obeys his sister and talks to her father (complainant s) to give her Rs. 50,000/- and V.C.R. and brings these articles to Bijnore. We are convinced that the allegation of misbehaviour on the part of appellant Nos. 1 and 2 and the demand of Rs. 50,000/- and V.C.R. by them made by the complainant in her subsequent statement, dated 4.4.1995, was an afterthought and not bona fide." 6. Per contra, the learned counsel appearing for the second respondent, supported the impugned orders and brought to the notice of the Court by filing the statements of the list of witnesses that prima facie case is made out for the purpose of framing charges against the petitioner. During the course of hearing, it is also brought to the notice of the Court that according to the memorandum of marks issued to Vikramaditya i.e. the son of the petitioner and the second respondent, the father's name is mentioned as Kumram Balu. During the course of hearing, it is also brought to the notice of the Court that according to the memorandum of marks issued to Vikramaditya i.e. the son of the petitioner and the second respondent, the father's name is mentioned as Kumram Balu. It is also contended that whether Vikramaditya was born to the petitioner and the second respondent and whether they were abused in filthy language by the petitioner and his brothers and threatened that they will kill them, will be elicited only during the course of trial. Therefore, she sought dismissal of the criminal revision case. 7. Having heard both the learned counsel and from the perusal of the material on record, it is revealed that the second respondent, on 9.2.2017, lodged a complaint before the Inspector of Police, Police Station, Dandepally. Pursuant thereto, a crime was registered vide FIR No. 14 of 2017 for the offences under Sections 498-A, 506 r/w 34 IPC. After completion of investigation, a charge sheet has been filed on 15.05.2017 before the learned Judicial Magistrate of First Class, Luxettipet. The learned magistrate after taking cognizance of the offences, numbered the case as C.C. No. 134 of 2017. In the charge sheet, it is mentioned that during the course of investigation, it was revealed that LW-1 is a resident of Medaripet and the petitioner is resident of Mamidipalli village. About 27 years back while the petitioner was studying M.B.B.S. course, he loved the second respondent and was frequently meeting her secretly. He performed marriage as per the caste tradition, spent marital life with her for 3 years. Out of wedlock, they were blessed with a male child by name Vikramaditya. Meanwhile the petitioner completed his M.B.B.S. course and got a job. Since then, he changed his attitude and harassing the second respondent with an intention to get rid of her and more particularly, if he performs another marriage, he will get more dowry. The petitioner thereafter shifted to Hyderabad. During 1993, a panchayat was held and in that the petitioner said to have admitted his guilt and assured that he will look-after the welfare of the child once he completes 10th standard. The petitioner thereafter shifted to Hyderabad. During 1993, a panchayat was held and in that the petitioner said to have admitted his guilt and assured that he will look-after the welfare of the child once he completes 10th standard. But, the petitioner failed to take care of the child whereby when the second respondent and her son went to the petitioner and enquired about taking care of their son, the petitioner and his brothers abused the second respondent in filthy language and threatened that they will kill her son if she again raises the issue. That apart, the perusal of the list of the witnesses filed before this Court also would indicate that the petitioner, married the second respondent as per their caste customs. They belong to scheduled caste community and out of their wedlock, they were blessed with a son. In fact, LW-5 who is aged about 75 years and a resident of Medaripet categorically stated that about 27 years back, the petitioner married the second respondent after a love affair between them. At the time of marriage, the petitioner was prosecuting his M.B.B.S. course. By the time, the petitioner got the job, the second respondent became pregnant and thereafter she was blessed with a son. However, after getting the job, the petitioner started neglecting the second respondent and in order to get rid of her, he used to beat her and unable to bear the torture meted out to her, when the second respondent came to Medaripet, he used to come frequently during the night time and go early in the morning. Even during the temporary stay also, he used to beat her and after some time, he stopped visiting the second respondent. Similar is the statement of LW-3 who is aged 70 years and she happened to be the mother of the second respondent. Looking at the statements as well as the contents of charge sheet, it cannot be said that no prima facie case is made out against the petitioner for the offences as alleged against him. 8. Similar is the statement of LW-3 who is aged 70 years and she happened to be the mother of the second respondent. Looking at the statements as well as the contents of charge sheet, it cannot be said that no prima facie case is made out against the petitioner for the offences as alleged against him. 8. In fact, for the purpose of deciding the relevant issue as to whether Section 498-A IPC is applicable or not in the present facts and circumstances of the case, it is relevant to extract the said provision and the same is 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 purpose 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." 9. A perusal of the same, would indicate that the essential ingredient as per the said section is that there should be wife and husband relationship between the de facto complainant and the accused. The complaint as well as the statements recorded by the prosecution in the list of witnesses clearly demonstrates that the petitioner had a love affair with the second respondent and he married her as per their caste customs. They were blessed with a son by name Vikramaditya. The memorandum of marks of the said Vikramaditya also indicates the petitioner as his father. Though, the petitioner is denying the relationship with second respondent, but what is to be seen for the purpose of prima facie case at the stage of framing the charges is as to whether the petitioner is the husband of the second respondent or not. The memorandum of marks of the said Vikramaditya also indicates the petitioner as his father. Though, the petitioner is denying the relationship with second respondent, but what is to be seen for the purpose of prima facie case at the stage of framing the charges is as to whether the petitioner is the husband of the second respondent or not. According to the prosecution, the second respondent is the wife of the petitioner and it was a love marriage. The charge sheet as well as the statements of list of witnesses including the confessions of the accused, though there is no marriage proof to show that the second respondent is the wife of the petitioner, but in view of statements and more particularly, the memorandum of marks of LW-2/Vikramaditya, a prima facie case is made out that the second respondent is the wife of the petitioner. When once a prima facie case is made out that the second respondent is the wife of the petitioner, the allegations made in the complaint as well as the charge sheet and list of witnesses, the second respondent was harassed by the petitioner whereby attracting the provisions of Section 498-A IPC apart from section 506 IPC. 10. At the stage of framing charges under Section 239 Cr.P.C., what all the Court has to see is as to whether any prima facie case is made out for the purpose of framing of charge, and to proceed with the matter. At the stage of framing charges, the Court is not obligated to appreciate the evidence or make a roving enquiry as to whether the evidence collected by the prosecution during the course of investigation, and the material collected, would lead to a conviction. 11. In fact, the scope of discharge at the time of framing charges is dealt with by the Apex Court in catenae of judgments. In STATE OF TAMIL NADU v. J. JAYALALITHA, (2000) 5 SCC 440 , the Apex Court held as under: "We would choose to refrain from dealing with the above contention, lest any comment made by us may turn out to be detrimental to one or the other side of the case. Nevertheless, it is for the prosecution to explain how certain relevant sheets were found missing and whether respondent should have caused them to be removed. Nevertheless, it is for the prosecution to explain how certain relevant sheets were found missing and whether respondent should have caused them to be removed. This is not the stage for weighing the pros and cons of all the implications of the materials nor for shifting the materials presented by the prosecution. The exercise at this stage should be confined to considering the police report and the documents to decide whether the allegations against the accused are "groundless" or whether "there is ground for presuming that the accused has committed the offences." Presumption therein is always rebuttable by the accused for which there must be opportunity of participation in the trial." 12. Further, even in the judgment relied on by the learned counsel for the petitioner, the Apex Court in ONKAR NATH MISHRA case, (2008) 2 SCC 561 (supra), was pleased to hold as under: "It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence." 13. In these circumstances, this Court is of the opinion that there are no merits in the criminal revision case and the same is liable to be dismissed. 14. Accordingly, the criminal revision case is dismissed. Miscellaneous petitions, if any, pending in this criminal revision case shall stand dismissed.