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2021 DIGILAW 97 (TS)

Ahmed Khan v. State of Telangana

2021-04-01

KUNURU LAKSHMAN

body2021
ORDER : Kunuru Lakshman, J. 1. This Criminal Petition, under Section 482 of the code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), is filed by the petitioners herein seeking to quash the proceedings against them in Crime No. 95 of 2021 on the file of CCS, DD, Women Police Station, Hyderabad. The petitioners herein are accused Nos. 1 to 3, 5 and 6. The offences alleged against them are under Sections 498-A and 506 I.P.C. 2. As per the complaint of the 2nd respondent, dated 30.01.2021, the allegations against the petitioners herein are as follows : The marriage of the 2nd respondent with the 1st petitioner was performed on 09.09.2016. During their lawful wedlock, they were blessed with a son. Thereafter, the petitioners herein started harassing and ill-treating her both physically and mentally for want of additional dowry. Several times, they have attempted to kill 2nd respondent. Due to their mental and physical harassment, the 2nd respondent affected with several health issues. As per the demand of the 1st petitioner, the parents of the 2nd respondent have provided financial support to 1st petitioner by giving cash of Rs. 10,00,000/-. The 1st petitioner is having extra marital relationship with several women and with the said relationship, he used to harass the 2nd respondent both physically and mentally. With the said attitude of the 1st petitioner, she used to cry every night and used to get severe head-ache. Her mother-in-law, the 2nd petitioner herein did not take any action against the 1st petitioner and on the other hand, she has supported him in all his illegal activities including the extra marital relationship. Due to the said harassment, the health of the 2nd respondent has deteriorated day-by-day and nobody is look after her necessities. The said fact was informed to her parents and her siblings, who were in Kuwait. They have taken the 2nd respondent to a Neurologist, who suggested MRI Scan to her. Her mother has shocked about MRI Scan report of the 2nd respondent and later the 2nd respondent was operated for brain tumor at Sunshine Hospital, Gachibowli. All the expenses were borne by her mother and later they went back to Kuwait. In January, 2019, parents of 2nd respondent called the 1st petitioner to Kuwait on work Visa basis and accordingly, he went to Kuwait by leaving the 2nd respondent at her matrimonial house. All the expenses were borne by her mother and later they went back to Kuwait. In January, 2019, parents of 2nd respondent called the 1st petitioner to Kuwait on work Visa basis and accordingly, he went to Kuwait by leaving the 2nd respondent at her matrimonial house. In the absence of 1st petitioner, his parents, the 2nd and 3rd petitioners, his sister the 5th petitioner herein started giving mental tortures to the 2nd respondent and they have instigated the 1st petitioner, who abused her and her family members in filthy language over mobile phone. The 1st petitioner used to tell her that he will perform 2nd marriage with any rich girl so that he can get handsome dowry and property. In the month of June, 2019, the 2nd respondent went to Kuwait along with her minor son to join her services with the 1st petitioner. She and 1st petitioner along with her minor child were living in a rented house, in the same building where her parents used to stay. Even there also, the 1st petitioner continued his extra marital affairs and he continuously harassed the 2nd respondent both mentally and physically. He never cared the 2nd respondent and he never gave a status of wife. He did not spend single penny on her. He has taken her entire salary every month when she was working in Kuwait. He has sent the said money to his parents. With the said allegations, the 2nd respondent has lodged a complaint on 30.01.2021 with CCS DD, Women Police Station, Hyderabad, who in turn registered a case in Crime No. 95 of 2021 for the aforesaid offences against the petitioners herein and accused No. 4. 3. Sri Mir Masood Khan, learned counsel for the petitioners would submit that the dispute between the 1st petitioner and the 2nd respondent is a matrimonial dispute and the police on receipt of complaint, dated 30.01.2021, at 13:30 hours registered a case immediately without following the guidelines issued by the Hon'ble Apex Court in Lalita Kumari v. Government of U.P. and others, W.P. No. (Crl.) No. 68 of 2008, more particularly guidelines in paragraph 111 of the said Judgment. Learned counsel for the petitioners would further submit that in matrimonial disputes/family disputes, the police have to conduct preliminary inquiry and without conducting the same, the police have registered the present crime immediately. Learned counsel for the petitioners would further submit that in matrimonial disputes/family disputes, the police have to conduct preliminary inquiry and without conducting the same, the police have registered the present crime immediately. According to the learned counsel for the petitioners, the contents of the complaint lack the ingredients of the offences alleged against the petitioners herein. The marriage of the 1st petitioner with the 2nd respondent was performed on 09.09.2016 and she left Kuwait in the month of June, 2019. She is suffering with Abscess with seizures since two years. In proof of the same, Pathlabs report, dated 09.08.2018 has been filed. By referring to the same, learned counsel for the petitioners would submit that the 2nd respondent is already suffering with the said disease and therefore, the question of 2nd respondent suffering with the said problem due to the alleged harassment by the petitioners does not arise. There are no specific overt acts against petitioner Nos. 2 to 5 herein. The 2nd petitioner is aged about 65 years, 3rd petitioner is aged father, aged about 71 years and petitioner Nos. 4 and 5 are married sisters of the 1st petitioner. By referring to the copy of passport of accused No. 4, learned counsel for the petitioners would submit that accused No. 4 is not residing in India and she is residing in Kuwait. According to the learned counsel for the petitioners, the marriages of petitioner Nos. 4 and 6 were performed long back, they are staying with their own families and they are nothing to do with the matrimonial life of 1st petitioner and 2nd respondent. Even then, the 2nd respondent has implicated the entire family in a false case. There are no specific overt acts against petitioner Nos. 2 to 5 herein. By referring to the principle laid down by the Hon'ble Apex Court in the Judgment in Anupriya Pal and others v. Sate of U.P. [Crl. A. No. 994 of 2018, arising out of SLP (Crl.) No. 1823 of 2017], learned counsel for the petitioners would submit that the 2nd respondent therein has implicated the entire family of the 1st petitioner therein to take revenge on the husband therein. With the said submissions, learned counsel for the petitioners sought to quash the proceedings in Crime No. 95 of 2021 against the petitioners herein. 4. With the said submissions, learned counsel for the petitioners sought to quash the proceedings in Crime No. 95 of 2021 against the petitioners herein. 4. Sri P. Vamsheedhar Reddy, learned counsel for the 2nd respondent/complainant would submit that the contents of the complaint constitute the offences alleged against the petitioners. Conducting preliminary inquiry is not mandatory and the guidelines of the Hon'ble Apex Court in Lalita Kumari's case (supra), are only guiding in nature. There are specific allegations against all the petitioners herein that they have harassed the 2nd respondent both physically and mentally demanding additional dowry. There are several factual aspects to be investigated into by the Investigating Officer basing on the allegations made by the 2nd respondent in the complaint, dated 30.01.2021. The matter is at investigation stage and Investigating Officer has to conduct investigation, to record the statement of victim and other witnesses. With the said submissions, he sought to dismiss the present petition and not to interdict the investigation at crime stage. 5. Learned Public Prosecutor, on instructions, would submit that the police have recorded the statement of 2nd respondent as L.W.1 and the matter is at investigation stage. There are specific factual aspects, which are to be investigated into by the Investigating Officer. The police after conducting investigation, on going through the statement of witnesses recorded under Section 161 Cr.P.C., and also after going through the record, they will file charge sheet and in the event of Investigating Officer comes to a conclusion that there are no allegations against any of the petitioners herein, they will drop the charges against the petitioners herein. The petitioners, instead of cooperating with the Investigating Officer by furnishing information and documents, as sought by him, approached this Court by way of filing the present petition. With the said submissions, learned Public Prosecutor sought to dismiss the present petition. 6. The above stated submissions would reveal that the marriage of 1st petitioner with the 2nd respondent was performed on 09.09.2016. They blessed with a male child. Thereafter, at the instance of the parents of the 2nd respondent, who are staying in Kuwait, the 1st petitioner went to Kuwait for his employment purpose. The 2nd respondent also went to Kuwait in January, 2019 for the purpose of employment. They blessed with a male child. Thereafter, at the instance of the parents of the 2nd respondent, who are staying in Kuwait, the 1st petitioner went to Kuwait for his employment purpose. The 2nd respondent also went to Kuwait in January, 2019 for the purpose of employment. A perusal of the record would reveal that on the advice of Doctors at Sunshine Hospital, Gachibowli, the 2nd respondent underwent medical examination and as per the report of the Pathlabs, dated 09.08.2018, the 2nd respondent is suffering from Abscess with seizures since two years. 7. A perusal of the entries in the passport of accused No. 4 would reveal that she is residing in Kuwait. Both petitioner Nos. 4 and 5 are married women and they are staying with their families. There are no allegations, much less specific allegations against 4th and 5th petitioners. There is no allegation much less specific allegation against the 3rd petitioner, father of 1st petitioner. The only allegation against the 2nd petitioner, mother of the 1st petitioner, is that she did not take any action against the 1st petitioner and she has supported all his illegal activities including extra marital activities. Except that one allegation, there is no other allegation against the 2nd petitioner herein also. The above stated facts would reveal that there are matrimonial disputes between the 1st petitioner and the 2nd respondent. The Hon'ble Apex Court way back in the year 2010 in a Judgment in Preeti Gupta and another v. State of Jharkhand and another (2010) 7 Supreme Court Cases 667, held: "30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. 31. The courts are receiving a large number of cases emanating from Section 498-A of the Penal Code which 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." 32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinised with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful. 37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law." 8. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law." 8. The Hon'ble Apex Court laid down certain guidelines in Lalitha Kumari's case (supra) in paragraph 111 and one of the guidelines is as follows: "As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases. ......." 9. A perusal of the First Information Report would reveal that the Investigating Officer has received a complaint on 30.01.2021 at 13:30 hours. It appears that without conducting preliminary inquiry, the police have registered the aforesaid said crime on 30.01.2021 at 13:30 hours. A perusal of the said complaint also would reveal that the police have not conducted any preliminary inquiry. Considering the said fact and also the fact that the dispute between the 1st petitioner and the 2nd respondent is a matrimonial dispute/family dispute, registration of aforesaid crime by the police without conducting a preliminary enquiry/counselling is in violation of the guidelines issued by the Hon'ble Apex Court in Lalitha Kumari's case (supra). 10. It is also relevant to note that in the very same judgment, the Hon'ble Apex Court has also held that the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received, but only to ascertain whether the information reveals any cognizable offence and as to what type and in which cases preliminary inquiry is to be conducted depending upon the facts and circumstances of each case. The category of cases, in which preliminary inquiry may be made includes matrimonial disputes/family disputes. 11. In view of the same, on the ground of non-conducting of preliminary inquiry by the police before registration of crime the present proceedings in Crime No. 95 of 2021 may not be quashed. 12. In view of the above said discussion, there are no allegations, much less specific allegations against petitioner Nos. 2 to 5. 11. In view of the same, on the ground of non-conducting of preliminary inquiry by the police before registration of crime the present proceedings in Crime No. 95 of 2021 may not be quashed. 12. In view of the above said discussion, there are no allegations, much less specific allegations against petitioner Nos. 2 to 5. The 2nd and 3rd petitioners are aged parents of 1st petitioner, aged about 65 and 71 years respectively. The 3rd petitioner is a retired a person. The 4th and 5th petitioners are married sisters of the 1st petitioner. They got married and staying with their respective families. There are no allegations much less specific allegations against the 4th and 5th petitioners. At the cost of repetition, it is also relevant to note that there is no reference of allegations by 3rd petitioner, father of the 1st petitioner. Except one sentence that 2nd petitioner, mother of 1st petitioner, has supported the 1st petitioner and she did not take any action against him, there is no other allegation against her. Thus, there are no allegations, much less specific allegations against petitioner Nos. 2 to 5 herein. Prima facie, it appears that the allegations are against 1st petitioner/accused No. 1 only. 13. According to this Court, in view of the above said discussion, the proceedings against petitioner Nos. 2 to 5/accused Nos. 2, 3, 5 and 6 in Crime No. 95 of 2021 pending on the file of CCS, DD, Women Police Station, Hyderabad, are liable to be quashed against them. 14. As stated above, the dispute between the 1st petitioner and the 2nd respondent is a matrimonial dispute. Since punishment prescribed for the offences alleged against the 1st petitioner is an imprisonment of seven years or below seven years, the Investigating Officer has to necessarily follow the procedure laid down under Section 41-A of Cr.P.C., and also the guidelines issued by the Apex Court in Arnesh Kumar v. State of Bihar and another (2014) 8 SCC 273 . 15. In view of the same, this Criminal Petition is allowed in part and the proceedings in Crime No. 95 of 2021 on the file of CCS DD Women Police Station, Hyderabad, are quashed against petitioner Nos. 2 to 5/accused Nos. 2, 3, 5 and 6. 15. In view of the same, this Criminal Petition is allowed in part and the proceedings in Crime No. 95 of 2021 on the file of CCS DD Women Police Station, Hyderabad, are quashed against petitioner Nos. 2 to 5/accused Nos. 2, 3, 5 and 6. Insofar as petitioner No. 1/accused No. 1, the Investigating Officer shall strictly follow the procedure laid under Section 41-A Cr.P.C. and also the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar's case (supra). Petitioner No. 1/accused No. 1 shall cooperate with the Investigating Officer by furnishing documents and information as sought by him in concluding investigation. Miscellaneous petitions, if any, pending shall stand closed.