Madari Sheethal Or Guddeti … vs The State Of Telangana

 

Telangana High Court
Madari Sheethal Or Guddeti … vs The State Of Telangana on 3 February, 2020
Bench: G Sri Devi
           HONOURABLE JUSTICE G. SRI DEVI


           CRIMINAL PETITION No. 1214 of 2019

ORDER:

The present Criminal Petition is filed, under Section 482 of Cr.P.C., seeking to quash the order, dated 24.01.2019 passed in Crl.R.P.No.11 of 2016 on the file of the V-Additional Metropolitan Sessions Judge (Mahila Court), Hyderabad, confirming the order of the XV-Additional Chief Metropolitan Magistrate, Hyderabad, passed in Crl.M.P.No.1061 of 2015 in C.C.No.164 of 2011, dated 14.08.2015.

Brief facts of the case are that the petitioner/de facto complainant lodged two complaints against respondent Nos.2 to 4/ A-1 to A-3 herein, one is before Gopalapuram Police Station, Secunderabad and another before the Women Police Station, Begumpet, alleging therein that her marriage was performed with respondent No.2/A-1 on 22.10.2004 as per Hindu rites and customs and at the time of marriage, her parents gave cash of Rs.3,00,000/- as dowry and Rs.25,000/- to the elder sister of respondent No.2/A-1 towards Adapaduchu katnam, a wrist watch and five tulas of gold. After marriage, she joined her husband and they lived together for some time. Later, respondent Nos.2 to 4 started harassing her that she has no job and they also subjected her to cruelty both mentally and physically by demanding additional dowry. Unable to bear such harassment, she lodged the above two complaints. After completion of investigation, the police filed charge sheet before the trial Court, who in turn took the case on file against respondent Nos.2 to 4/A-1 to A-3 and numbered the same as C.C.No.164 of 2011.

When the aforesaid Calendar Case was coming up for arguments, the State represented by Public Prosecutor, filed Crl.M.P.No.1061 of 2015 under section 216 of Cr.P.C., to take cognizance against respondent Nos.2 to 4/A-1 to A-3 for the offence punishable under Section 406 of I.P.C. and Sections 34 and 6 of the Dowry Prohibition Act, 1961 on the ground that the prosecution failed to take steps at the appropriate time seeking for addition of the said penal provisions and also on the ground that the learned Magistrate failed to frame charges. The said petition was dismissed by the learned Magistrate, holding that the ingredients constituting an offence under Section 406 of I.P.C. and Sections 34 and 6 of the Dowry Prohibition Act, 1961, were not attracted. Aggrieved by the same, the State filed Crl.R.P.No.11 of 2016 before the V Additional Metropolitan Sessions Judge, Hyderabad. Vide order, dated 27.10.2017, the learned Metropolitan Sessions Judge, Hyderabad, disposed of the matter, directing the Magistrate to add Sections 34 and 6 of the Dowry Prohibition Act, 1961. Challenging the same, respondent Nos.2 to 4/A-1 to A-3 preferred Crl.R.C.No.2944 of 2017 before this Court. By an order, dated 07.12.2017, this Court allowed the said revision and remanded the matter to the V-Additional Metropolitan Sessions Judge, Hyderabad, for disposal in accordance with law. Thereafter, the learned V-Additional Metropolitan Sessions Judge, Hyderabad, after hearing the matter afresh, dismissed the said revision. Challenging the same, the present Criminal Petition is filed by the petitioner/de facto complainant.

Heard learned Counsel appearing for the petitioner/de facto complainant, learned Additional Public Prosecutor appearing for the 1st respondent-State and learned Counsel appearing for respondent Nos.2 to 4/A-1 to A-3.

It has been submitted on behalf of the petitioner/de facto complainant that the order passed by the learned Sessions Judge, is bad in law and perverse to the facts and evidence on record. It is also submitted that both the Courts below ought to have seen that, basing on the evidence on record, the prosecution has rightly found that respondent Nos.2 and 3/A-1 and A-2 have committed the offences punishable under Section 406 I.P.C. and Sections 34 and 6 of the Dowry Prohibition Act, 1961, as such the State represented by the Public Prosecutor filed Crl.M.P.No.1061 of 2015 under Section 216 of Cr.P.C. for framing of the charges against respondent Nos.2 and 3/A-1 and A-2, but the trial Court, on erroneous grounds, dismissed the said application, which was confirmed by the Sessions Court. The order passed by the learned Sessions Judge is totally unsustainable in the eye of law and contrary to the evidence on record, as such the same is liable to be set aside and the application needs to be allowed with a direction to the trial Court to add Section 406 of I.P.C. and Sections 34 and 6 of the Dowry Prohibition Act, 1961. It is further submitted that the learned Judge ought to have seen that the evidence of P.Ws.1, 5 and 6 clearly show how the accused demanded additional dowry from the petitioner/de facto complainant and her father. Without perusing the depositions, the learned Sessions Judge in a casual and routine manner and without taking into consideration the observations made by this Court while remitting the matter, passed the order under revision, which is totally unsustainable and contrary to the law laid down while deciding the cases arising under Section 216 of Cr.P.C. It is also submitted that the Courts below ought to have seen under Section 216 of Cr.P.C., a Criminal Court can alter or add any charge before the judgment is pronounced. When the evidence on record clearly shows that respondent Nos.2 and 3/A-1 and A-2 have committed the offence under Section 406 of I.P.C. and Sections 34 and 6 of the Dowry Prohibition Act, the learned Magistrate as well as the learned Sessions Judge, erred in rejecting the said application. The findings given by the Courts below are totally contrary to the evidence on record and settled principles of law laid down while deciding the cases arising under Section 216 of Cr.P.C. If the impugned orders passed by the Courts below are allowed to stand, it would be an occasion to miscarriage of justice, therefore, the same are liable to be set aside.

Learned Counsel for respondent Nos.2 to 4/A-1 to A-3 would submit that once there is an alteration or addition of charge, then that is required to be read and explained to the accused and a new trial will be conducted. Since the matter was posted for arguments, now addition of charge at this belated stage would cause great prejudice to the respondent Nos.2 to 4/A-1 to A-3.

A perusal of the complaints filed by the petitioner/de facto complainant, which were marked as Exs.P1 and P2, and the depositions of the witnesses, there are no specific allegations with regard to the entrustment of property and also misappropriation of the same by respondent Nos.2 to 4/A-1 to A-3. In the absence of any material, both the Courts below have rightly rejected the prayer seeking addition of Section 406 of I.P.C., and Sections 34 and 6 of the Dowry Prohibition Act, 1961. Hence, there is nothing to interfere with the findings arrived at by both the Courts below and the Criminal Petition is liable to be dismissed.

Accordingly, the Criminal Petition is dismissed. Miscellaneous petitions, if any, pending shall stand closed.

____________________ JUSTICE G.SRI DEVI 03.02.2020 gkv/Gsn

Bhanu Prasad Variganji vs The State Of Telangana

 

Telangana High Court
Bhanu Prasad Variganji vs The State Of Telangana on 16 March, 2020
Bench: G Sri Devi
              HONOURABLE JUSTICE G. SRI DEVI

                WRIT PETITION No. 41432 of 2018

ORDER:

The present Writ Petition is filed, under Article 226 of the Constitution of India, seeking to quash the proceedings initiated against the petitioner in C.C.No.599 of 2015 on the file of the XIII- Additional Chief Metropolitan Magistrate, Hyderabad, registered for the offences punishable under Sections 498-A406 I.P.C. and Sections 4 and 5 of Dowry Prohibition Act.

Brief averments of the affidavit filed in support of the Writ Petition are that the marriage of the petitioner with the 3rd respondent was performed on 20.11.2013 at Sama Papireddy Function Hall, Balapur, Hyderabad, and the same was also registered on 22.11.2013. However, the said marriage was not consummated as the 3rd respondent resisted for the same. There was no giving or taking of dowry and, on the other hand, the petitioner had given gold ornaments worth Rs.2.5 lakhs to the 3rd respondent. The petitioner is a Software employee working in Florida, U.S.A. As the petitioner has no time to stay in India, he left on 24.11.2013 and also informed the 3rd respondent that he will make travel arrangements for her to join with him. Thus, it is clear that after the marriage, the petitioner and the 3rd respondent did not live together. Thereafter, the petitioner has completed VISA process and made arrangements for the arrival of the 3rd respondent to join with him in U.S.A., and the 3rd respondent joined the petitioner on 21.01.2014. Though the 3rd respondent joined the petitioner, but her behaviour and actions are abusive in nature, which were never expected by the petitioner. The 3rd respondent subjected the petitioner to torture and never allowed him to live with her at any point of time and day-by- day her attitude became unbearable and even then the petitioner bear the agony up to August, 2014. The 3rd respondent once again seriously abused in filthy language by shouting at him and breaking the things in the flat. In those circumstances, the petitioner called the U.S. Police and in their presence he left the house duly providing maintenance for her and started staying in the Hotel at California by the time he was transferred to that place. In view of the above situation, the petitioner approached the local Attorney and got filed a case for legal separation on 15.08.2014 vide Case No.614FL 013077 and on that basis, summons were issued to the 3rd respondent, who was still residing in the petitioner’s house, while the petitioner was in a hotel. In response to the said notice, the 3rd respondent issued an e-mail to the petitioner’s Attorney expressing her intention to protest the case filed by the petitioner and also seeking for legal expenses from him. Though, as per the U.S.A. Laws, there is no necessity for the petitioner to make any payment towards her legal expenses, the petitioner obliged to make payment by way of a cheque for 2000 dollars and handed over the said cheque to his Attorney. The 3rd respondent on coming to know the said fact through the petitioner’s Attorney, approached the Attorney and collected the cheque from him on 25.08.2014. Apart from the said amount, 500 dollars were already paid by the petitioner along with the summons. It is also stated that though the 3rd respondent received legal expenses from the petitioner, she did not participate in the proceedings, but asked for settlement by demanding Indian Currency of Rs.20.00 lakhs, which is equivalent to 30,000 dollars. The petitioner’s Attorney in turn responded by saying that as per California Law, she cannot make such demand. But, she did not stand for the settlement and filed a case against the petitioner under Domestic Violence Act of California. When the petitioner met the police concerned, they informed that the investigation is in progress and it will be subject to the evidence provided by the 3rd respondent. Since the 3rd respondent has not produced any evidence before the Police concerned, they have not assigned any Case Number to the 3rd respondent complaint and it appears that there is no progress in the said case till now. The 3rd respondent instead of participating in legal separation case or cooperating with the U.S. Police in the case filed by her, suddenly left for India on 29.08.2014. Therefore, it makes it clear that the petitioner and the 3rd respondent never lived together either in India or U.S.A. and even pursued the case filed by her. But strangely, after landing in India, the 3rd respondent got issued a Legal Notice, dated 06.11.2014 through her Counsel making all false allegations. The petitioner’s Attorney in the U.S.A. had given detailed response bringing to his notice all the events that had taken place including settlement issues on 01.12.2014. Thereafter, a complaint was lodged against the petitioner and his family members vide Cr.No.384 of 2014. After investigation, the police filed charge sheet against the petitioner only and the same was taken on file as C.C.No.599 of 2015 for the offences punishable under Sections 498-A406 I.P.C. and Sections 4 and 5 of Dowry Prohibition Act.

It is further stated in the affidavit that a fair look at the Charge Sheet and the facts narrated therein would disclose that all born on the soil of the U.S.A. and none of the events are traceable in India. That apart, the petitioner and the 3rd respondent lived in India not more than three days to attract the territorial jurisdiction. The offences alleged under Sections 498-A406 of I.P.C. or Sections 4 and 6 of the Dowry Prohibition Act cannot be invoked against the petitioner as the basic requirements to satisfy the offences or factual matrix are not satisfied, as all the facts are not traceable in India. It is also stated that the 3rd respondent, in spite of service of summons for legal separation and receiving of legal expenses from the petitioner, left the said proceedings and deliberately filed the present case only to harass the petitioner. Admittedly, even as per the complaint, she disclosed that legal separation case was already filed by the petitioner against her and expressed her intention to participate in the said proceedings by seeking legal expenses and having received the same, she also proposed settlement by demanding huge amount, which was promptly clarified that she is not entitled for the same as per the California Law.

It is further stated that the petitioner had filed legal separation proceedings in California Court, thereafter his Attorney sent summons to the 3rd respondent on 15.08.2014 and also informed the 3rd respondent that, when the jurisdictional requirements are met, the petitioner will seek a divorce from her. The 3rd respondent is thus aware that the marriage between her and the petitioner would come to an end by an order of Court. Having perceived the said situation, the 3rd respondent demanded Rs.20.00 lakhs towards full and final settlement of the issue and the petitioner’s Attorney sent an appropriate response as per California Law to the 3rd respondent. Thereafter, the 3rd respondent without attending the proceedings, left for India and lodged F.I.R. against the petitioner in Hyderabad and started working in a School for a monthly salary of Rs.40,000/- and in spite of the same, the petitioner continuing to pay maintenance of Rs.12,000/- per month to the 3rd respondent as per the orders of the Court in the Maintenance Case. It is also stated that in accordance with the provisions of California Law, after expiry of statutory period of six months, the petitioner filed a petition for amendment of the legal separation petition to that of petition for dissolution of marriage and on 01.12.2014 the Court passed orders treating the petition as the petition for dissolution of marriage. A notice in this regard was also served upon the 3rd respondent via regular U.S. Mail on 06.12.2014. In spite of receipt of notice, the 3rd respondent remained ex parte and on 30.01.2015, the petitioner filed a declaration before the Court to the said effect. The Superior Court of California, County of Santa Clara passed judgment dated 27.05.2015 granting dissolution of marriage between the petitioner and the 3rd respondent and also issued a Summary of the Document to be served on the 3rd respondent. Thereupon, the same was sent to the Ministry of Law and Justice Legal Affairs, New Delhi, requesting to cause service of the judgment on the 3rd respondent and consequently the same was served on the 3rd respondent through the Court of Chief Judge, City Civil Courts, Hyderabad, and the said fact was communicated to the originating Court in California. It is also stated that it is not a case of harassment or torture or coercion to satisfy the unlawful demand of dowry or additional dowry. The 3rd respondent has resolved the disputes with the petitioner and as a result thereof, she has willingly parted the company of the petitioner and is living on her own knowing fully well that the marriage having been dissolved. In such circumstances, the question of initiation of criminal proceedings does not arise. The criminal proceedings are maliciously instituted with an ulterior motive to wreck vengeance against the petitioner. The police without conducting any preliminary enquiry, registered F.I.R. and the allegations in the F.I.R. do not constitute the offence alleged. The police without conducting proper investigation and without application of mind filed charge sheet and no useful purpose will be served by allowing the criminal prosecution to continue, thereby the Court has to prevent the abuse of the Court by quashing the criminal proceedings. It is also submitted that in the above backdrop, continuation of prosecution against the petitioner would be nothing but an abuse of process of law.

The 2nd respondent filed Counter stating that basing on the complaint lodged by the 3rd respondent against the petitioner herein, in-laws and family members, the 2nd respondent registered a case in Crime No.384 of 2014 for the offences under Sections 498-A and 406 of I.P.C. and Sections 4 and 5 of the Dowry Prohibition Act, 1961. After completion of investigation, the 2nd respondent filed charge sheet, which was taken on file as C.C.No.599 of 2015. It is further stated in the counter that the investigation revealed that prima facie case has been established against the petitioner and the Investigating Officer has conducted the investigation in an impartial and sincere manner and there was no foul play in it. When the case is under trial before the Court, at this stage, the petitioner filed the present Wit Petition. The contention of the petitioner that the charge sheet is illegal, arbitrary and without jurisdiction is incorrect, baseless and far from truth. Basing on the evidence and merits of investigation, prima facie case has been established against the petitioner. The petitioner is at liberty to adduce his evidence before the trial Court and instead of adducing his evidence before the trial Court, the petitioner filed the present writ petition with baseless allegations and that there are no grounds for quashing of C.C.No.599 of 2015.

Heard Sri T.Suryakaran Reddy, learned Senior Counsel appearing for Sri U.D.Jai Bhima Rao, learned Counsel for the petitioner and learned Assistant Government Pleader for Home appearing for respondent Nos.1 and 2. There is no representation on behalf of the 3rd respondent.

Learned Senior Counsel appearing for the petitioner would submit that though the marriage was performed on 20.11.2013, the same was not consummated as the 3rd respondent objected for the same. Since the petitioner has no time to stay in India, within three days after the marriage he left for U.S.A. and thereafter, made arrangements for the arrival of the 3rd respondent and subsequently the 3rd respondent joined the petitioner on 21.01.2014. The 3rd respondent subjected the petitioner to torture and never allowed him to live with her at any point of time. In the month of August, 2014, the 3rd respondent abused the petitioner and also damaged the belongings in the flat, in such circumstances, the petitioner called U.S. Police and in their presence he left the house and stayed in a hotel in California, but he had provided maintenance to the 3rd respondent. In view of the above, the petitioner approached the Local Attorney and filed a case for legal separation. The 3rd respondent received legal expenses from the petitioner, but she did not participate in the proceedings and asked for settlement by demanding Indian currency of Rs.20.00 lakhs from the petitioner. The 3rd respondent suddenly left for India on 29.08.2014 and lodged the present case against the petitioner. The petitioner and the 3rd respondent lived in India only for three days and the allegations contained in the complaint and charge sheet are regarding the occurrences in the United States of America. It is further submitted that no sanction has been obtained under Section 188 of Cr.P.C., which mandates that no Court shall take cognizance except the previous sanction by the Central Government when an offence is committed outside the jurisdiction of India. It is also submitted that the Superior Court of California, Country of Santa Clara, passed judgment on 27.05.2015 and that the marriage between the petitioner and the 3rd respondent has been dissolved and issued a summary document to be served on the 3rd respondent. In support of his contention, learned Senior Counsel for the petitioner relied on the decision of this Court in Rajesh Gutta v. State of Andhra Pradesh and another1.

Reiterating the contents made in the Counter, learned Assistant Government Pleader for Home appearing for respondents 1 and 2 would submit that the investigation done by the police prima facie established that the petitioner had committed the offences punishable under Sections 498-A and 406 of I.P.C. and Sections 4 and 5 of the Dowry Prohibition Act.

A perusal of the complaint and charge sheet would show that the marriage between the petitioner and the 3rd respondent took place on 20.11.2013 and that the said marriage was not consummated as the 3rd respondent had resisted for the same. As (2011) 1 ALD (Crl.) 885 (AP) the petitioner had no time to stay in India, he left for U.S.A within three days after the marriage i.e., on 24.11.2013 and thereafter, he made arrangements for the arrival of the 3rd respondent and that the 3rd respondent joined the petitioner on 21.01.2014. Further, it is evident that the petitioner and the 3rd respondent lived in India only for three days. Apart from that, the entire allegations mentioned in the charge sheet are regarding the occurrences in U.S.A. It is mainly contended by the learned Senior Counsel for the petitioner that no sanction has been obtained under Section 188 of Cr.P.C. before taking cognizance of the offence.

Section 188 of Cr.P.C. reads as under:

“188. Offence 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 com- mitted 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.” Section 188 of Cr.P.C. clearly mandates that no Court shall take cognizance except the previous sanction by the Central Government when an offence is committed outside the jurisdiction of India.

In Rajesh Gutta v. State of Andhra Pradesh (1 supra), this Court held in para Nos.8 and 10 as under:

“8. The entire reading of the complaint and charge-sheet, it is evident that the entire occurrence took place in the United States of America. The allegations contained in the complaint also regarding the occurrences in the United States of America. Of course, the offence committed by a person, which is punishable under the law in India, he can be prosecuted for the offence committed abroad. But, at the same time Section 188 of Cr.P.C. mandates that no Court shall take cognizance except the previous sanction by the Central Government when an offence is committed outside the jurisdiction of India.

9. xxxxxx

10. In such a case, the cognizance taken by the learned Magistrate also bad in law.”

In Syed Asgar v. Government of A.P. and others2 this Court held as under:

“17. Further more, the very object of Section 188 of Cr.P.C., appears to be that in order to meet two particular contingencies; firstly, about the offence committed by the Indians in a foreign country or by a foreigner in India and secondly, in both the contingencies, prior sanction of the Central Government is imperative, as postulated under Section 188 of the Cr.P.C. Otherwise, the very purpose and object of incorporating Sections 179 and 188 Cr.P.C., is wholly superfluous.”

In Thota Venkateswarlu v. State of Andhra Pradesh3 the Apex Court in Para Nos.14 to 16 held as under:

(2005) 3 ALD 877 “14. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal’s case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :-

“29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one — commission of an offence; second — by an Indian citizen; and third — that it should have been committed outside the country.”

15. Although the decision in Ajay Aggarwal’s case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central (2011) 9 SCC 527 Government would be required before the trial could commence.

16. Accordingly, up to the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.”

In the instant case also, no sanction has been obtained by the Magistrate before taking cognizance of the offence and as such the cognizance taken by the learned Magistrate is bad in law.

That apart, all the witnesses, whose statements have been recorded under Section 161 of Cr.P.C., have categorically stated that the petitioner and his family members never raised any demand for dowry at the time of marriage and the marriage was performed without taking or giving any dowry. Hence, the allegation that the petitioner has demanded additional dowry is un-imaginary. A perusal of the charge sheet clearly shows that there is no allegation or whisper about any particular date regarding demand of additional dowry. Moreover, the 3rd respondent herself has sent an e-mail to the petitioner to book a ticket to India to look after her mother, who is suffering from some ailment. So, the question of the 3rd respondent has been necked out by the petitioner does not arise.

On over all consideration of entire material placed on record and the contentions urged before this Court by the learned Senior Counsel appearing for the petitioner and learned Assistant Government Pleader for Home appearing for respondents 1 and 2, it is suffice to conclude that the contentions raised by the 3rd respondent are without any substance and the material produced before this Court, directly indicates the mala fides in prosecution of criminal proceedings against the petitioner, so also, by abuse of process of the Court.

In view of my foregoing discussion, I find that it is a fit case to quash the proceedings against the petitioner in C.C.No.599 of 2015 on the file of the XIII-Additional Chief Metropolitan Magistrate, Hyderabad.

Accordingly, the Writ Petition is allowed and the proceedings against the petitioner in C.C.No.599 of 2015 on the file of the XIII-Additional Chief Metropolitan Magistrate, Hyderabad, for the offences punishable under sections 498-A and 406 of I.P.C. and Sections 4 and 5 of the Dowry Prohibition Act, 1961, are hereby quashed.

Miscellaneous petitions, if any, pending shall stand closed.

____________________ JUSTICE G.SRI DEVI 16.03.2020 Gsn/gkv.

498a discharge by telangana hc

Excerpt:Having heard both the counsel and from the perusal of the material on record, particularly, the charge sheet what all that is stated against the petitioner herein is that A-1 to A-4 demanded LW.1 to get additional dowry of Rs.3 lakhs for doing business and demanded LW1 to sign on diverse papers to enable the A.1 to marry another girl. In fact no specific dates, month or year have been mentioned. The said allegation is as vague as possible.

this Court is of the opinion that when no specific allegations are made against the petitioner who is the sister of A.1, the continuation of proceedings against her would amount to abuse of process of the Court, apart from putting the petitioner to undue hardship of facing the trial. As such, this court is inclined to interfere with the 2017 (2) G.L.H.818 order passed by the Court below in declaring the discharge of the petitioner.

Telangana High Court
C.Krishna Priya vs State Of A.P. on 14 September, 2018
Bench: P.Keshava Rao
                                    1



                 HON'BLE SRI JUSTICE P.KESHAVA RAO
             CRIMINAL REVISION CASE No.2068 of 2014
ORDER

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor appearing for the respondent State.

2. The present Criminal Revision Case is filed by the petitioner – accused No.4, challenging the orders passed in Crl.M.P.No. 105 of 2013 in C.C.No. 271 of 2011, on the file of the Court of the Judicial Magistrate of First Class, Gooty, Ananthapur District, dismissing the petition.

3. The petition is filed under Section 239 Cr.P.C to discharge the petitioner for the offence under Section 498 A IPC read with Section 107 IPC and Section 3 and 4 of the Dowry Prohibition Act.

4. The facts in brief are that the de facto complainant lodged a complaint on 11.03.2010 against A.1 to A.4 – including the petitioner for the above said offences. Pursuant to the said complaint, Crime No. 23/2011 was registered. After investigation, charge sheet was filed. The learned Magistrate, after taking cognisance of the offences, numbered the case as C.C.No. 271 of 2011. During the pendency of the said case, the petitioner filed Criminal M.P. No. 105/2013 under Section 239 of Cr.P.C. to discharge the petitioner – Accused No.4 from the above said offences.

5. The respondent filed a counter and contested the same. After hearing, the learned Magistrate, by orders dated 08.08.2014, dismissed the said petition. Aggrieved by the same, the present Criminal Revision Case is filed.

6. The learned counsel appearing for the petitioner would contend that at the time of marriage of the complainant with the Accused No.1, the petitioner was 12 years old. No specific allegations are made against the petitioner, either in the charge sheet or in the statement of list of witnesses, except ominous allegations that the petitioner being sister of A.1, also demanded for additional dowry of Rs.3 lakhs. Therefore, the proceedings initiated against the petitioner cannot be maintained.

7. The learned public prosecutor appearing for the respondent state, fairly conceded that no specific allegations are made against the petitioner except a vague allegation that the petitioner also demanded for additional dowry.

8. Having heard both the counsel and from the perusal of the material on record, particularly, the charge sheet what all that is stated against the petitioner herein is that A-1 to A-4 demanded LW.1 to get additional dowry of Rs.3 lakhs for doing business and demanded LW1 to sign on diverse papers to enable the A.1 to marry another girl. In fact no specific dates, month or year have been mentioned. The said allegation is as vague as possible.

9. In the recent times, various complaints are being lodged for the offences under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act, in which, whether any allegation is made out or not, all the family members are being roped in as accused only for the purpose of harassing the innocent family members whereby forcing them to come to terms. In RAJESH SHARMA AND OTHERS v STATE OF U.P. AND ANOTHER1 and another, the Apex Court held as under :

“Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand1. It is a matter of serious concern that large number of cases continued to be filed Under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualised. At times such complaints lead to uncalled for harassment not only to the Accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted2. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse”.

10. From the above, this Court is of the opinion that when no specific allegations are made against the petitioner who is the sister of A.1, the continuation of proceedings against her would amount to abuse of process of the Court, apart from putting the petitioner to undue hardship of facing the trial. As such, this court is inclined to interfere with the 2017 (2) G.L.H.818 order passed by the Court below in declaring the discharge of the petitioner.

11. Accordingly, the Criminal Revision Case is allowed by setting aside the orders passed in Criminal M.P. No. 105 of 2013 in C.C. No. 217 of 2011 dated 08.08.2014 on the file of the Court of Judicial Magistrate First Class, Gooti. Consequently, the petitioner is discharged for the offences under Section 498 A read with Section 107 IPC and Section 3 and 4 of the Dowry Prohibition Act.

The Miscellaneous Petitions pending, if any shall stand closed.

__________________ P. KESHAVA RAO, J Dated: 14.09.2018 JR HON’BLE SRI JUSTICE P.KESHAVA RAO CRIMINAL REVISION CASE No.2068 of 2014 Dated: 14.09.2018 JR

Moral obligation vs legal obligation

Excerpt:  Although it was the moral obligation of respondent’s father as manager of the family to protect the deceased and safeguard her life and he had failed to perform that obliga- tion, that by itself without anything more is not sufficient to frame a charge against him. The discretion exercised by the trial court in discharging him was, therefore, correct. [569E]
Supreme Court of India
Stree Atyachar Virodhi Parishad … vs Dilip Nathumal Chordia & Anr on 8 February, 1989
Equivalent citations: 1989 SCR (1) 560, 1989 SCC (1) 715
Author: K Shetty
Bench: Shetty, K.J. (J)
           PETITIONER:
STREE ATYACHAR VIRODHI PARISHAD ETC. ETC.

	Vs.

RESPONDENT:
DILIP NATHUMAL CHORDIA & ANR.

DATE OF JUDGMENT08/02/1989

BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
RAY, B.C. (J)

CITATION:
 1989 SCR  (1) 560	  1989 SCC  (1) 715
 JT 1989 (1)   247	  1989 SCALE  (1)330


ACT:
    Criminal Procedure Code, 1973: ss. 227 & 22.8:  Sessions
Judge	framing	  charge  and  making	order	in   support
thereof--High	 Court	 whether   has	  jurisdiction	  to
interfere--Law must be allowed to take its own course unless
glaring injustice found.
    Indian   Penal  Code,  1860:  ss.  304B  &	 498A--Dowry
offence-All round attempt to cover up by family members than
to  expose it-Necessity .for investigating agency  to  pene-
trate every dark corner and collect all evidence--Courts  to
display	 greater sensibility to criminality and	 avoid	soft
justice.



HEADNOTE:
    The	 deceased was seen in flames on the first  floor  of
her  in-laws house crying for help within five days  of	 her
marriage  with the younger brother of the respondent.  While
neighbours rushed to her rescue and extinguished the flames,
the  inmates of the house did not render any such help.	 The
respondent  who was on the first floor was seen coming	down
the  stairs. The deceased succumbed to the burn injuries  in
the  hospital  on  the same day. In  her  dying	 declaration
recorded  by the Executive Magistrate, she stated that	when
she  was preparing tea in the kitchen her saree caught	fire
accidently.
    The	 parents of the deceased suspected foul play by	 her
in-laws	 and lodged a report with the police. An  investiga-
tion.of the case revealed that the deceased had met  hostile
atmosphere soon after her marriage. The parents gave  state-
ments  that  the in-laws demanded unreasonable	dowry  which
could not be complied with and that at the wedding  ceremony
they had behaved badly on the payment of insufficient dowry.
Her  brother  who had gone to bring her back  home  was	 not
permitted to meet her. The maid servant sent along with	 her
was also sent back.
     The respondent and his father were charge sheeted under
s.  306	 read with s. 34 I.P.C. The trial court	 came  to  a
prima facie conclusion that it was not a suicide but homici-
dal  death.  Accordingly, a charge under s. 302	 I.P.C.	 was
framed against the respondent. The respondent's father	was,
however, discharged.
561
    The	 High Court dismissed the revision petition  of	 the
State  against the respondent's father. Wile  accepting	 the
respondent's  revision it took the view that the  fact	that
the  accused was passive was of no consequence that  it	 all
depends upon the mental response and reaction of an individ-
ual whether he faces the risk and attempts to extinguish the
flames	or  quietly watches the incident, that it  does	 not
show that the accused actively committed the act of  burning
or  actively added the commission of suicide, and held	that
the  charge under s. 302 against him was not made  out,	 and
there was not even a case against him to frame charge  under
s. 306 I.P.C.
    The	 appellant,  a social welfare organisation  and	 the
State preferred appeals to the Supreme Court.
    On the question: Whether the High Court was justified in
interfering  with  the	charge framed  by  the	trial  court
against the respondent, and whether it was necessary to	 put
his father also on trial with
the material on record.
Partly allowing the criminal appeals,
    HELD: 1. The High Court was not justified in interfering
with  the charge framed by the trial court against  the	 re-
spondent accused.
    2.	The  trial court had considered	 every	material  on
record	in support of the charge framed. It had	 also  given
reasons	 why  a	 charge under s. 302  I.P.C.  was  warranted
against	 the respondent even though the police	had  charge-
sheeted	 him under s. 306 I.P.C. Section 227  Cr.P.C.  which
confers	 power to discharge an accused was designed to	pre-
vent  harassment to an innocent person by the arduous  trial
or  the ordeal of prosecution. The power has been  entrusted
to  the Sessions Judge who brings to hear his knowledge	 and
experience  in	criminal  trials. If he	 after	hearing	 the
parties	 frames a charge and also makes an order in  support
thereof, the law must be allowed to take its own
course.
    State  of  Bihar v. Ramesh Singh, [1978] 1 SCR  257	 and
Union of India v. Prafulla Kumar Samal & Anr., [1979] 2	 SCR
229 at 234-35, referred to.
    3.	Self restraint on the part of the High Court  should
he  the rule unless there is glaring injustice	staring	 the
Court in the face. In the
562
instant case, it had discharged the respondent mainly  rely-
ing on the dying declaration as if it has been	conclusively
proved to be the true and faithful version of the  deceased.
It did not advert to the report of the Chemical Analyser  in
which he found kerosene residue on each and every garment of
the  deceased,	and the post-mortem report  which  indicated
that besides burn injuries the deceased had sustained contu-
sions  on  the back shoulders which might have	been  caused
with  a	 blunt round object. The events	 that  preceded	 the
death  of the deceased also did not receive  any  considera-
tion. The statements of brother, father and the maid servant
of  the deceased have been ignored. The respondent was	seen
coming down from the staircase when the deceased was  crying
for  help. The manner in which he went on at that  time,  if
true,  did  not bring him credit. The approach made  by	 the
High  Court,  therefore, cannot be  accepted.  [569C;  566H;
567A-C]
    4. Although it was the moral obligation of	respondent's
father as manager of the family to protect the deceased	 and
safeguard her life and he had failed to perform that obliga-
tion, that by itself without anything more is not sufficient
to  frame a charge against him. The discretion exercised  by
the trial court in discharging him was, therefore,  correct.
[569E]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 486 to 489 of 1984.

From the Judgment and Order dated 5.4.1984 of the Bombay High Court in Criminal Revision Application No. 166/83 and Criminal Revision No. 234 of 1983 respectively. M.C. Bhandare, A.M. Khanwilkar and Mrs. H. Wahi for the Appellants.

S.B. Bhasme and R.A. Gupta for the Respondents. The Judgment of the Court was delivered by . K. JAGANNATHA SHETTY, J. These four appeals, by leave, arise out of the common judgment of Bombay High Court dated April 5, 1984 in Criminal Revision Applications 166 and 234 of 1983. Criminal Appeal Nos. 486 and 487 of 1984 have been preferred by an Organisation called “Stree Atyachaar Virodhi Parishad”. It is an association committed to prevent atroci- ties on women. Criminal Appeal Nos. 488 and 489 of 1984 are by the State of Maharashtra.

The case relates to the death of a newly married girl called Chanda. On June 15, 1981, Chanda was married to Ramesh. The eider brother of Ramesh is called Dilip and Nathumal is their father. The marriage of Ramesh and Chanda took place at Nerparsopant, District Yavatmal. On the next day of the marriage, the bride and groom returned to the house of the latter at Arvi. On June 19, 1981, they had gone to Amravati to have prayers in the Devi Tampie. They came back in the same evening. The day follow- ing was a fateful day. At about 2.30 PM on June 20, 1981, Chanda was seen with flames on the first floor of the resi- dential building, with frantically crying for help. That attracted some of the neighbours from the ground floor. They rushed to rescue Chanda. Three of them are: Bhanrao, Ballu alias Nandu and Ramdas. They extinguished the flame which was practically engulfing Chanda. The inmates in the house, however, did not render any such help. Dilip who was on the first floor was seen coming down the stairs.. Shortly, thereafter two doctors came and the police also arrived. Chanda was taken to Ervin Hospital at Amravati in an uncon- scious condition. She died in the hospital at about 9.00 pm on the same day. Before the death, her dying declaration was said to have been recorded by the Executive Magistrate. It was stated therein that when she was preparing tea in the kitchen, her saree caught fire accidentally and consequently she received the burn injuries.

The parents of Chanda were informed of the death. They suspected foul play by the in-laws of Chanda. They lodged a report at Amravati Police Station complaining that Chanda’s death might have been the outcome of tension due to demand of dowry. The Crime Branch of the CID investigated the case and charge-sheeted Dilip and Nathumal under sec. 306 read with sec.34 IPC. It was alleged that the Chanda has commit- ted suicide by burning herself and Dilip and Nathumal abet- ted her.

An investigation of the case revealed that Chanda had hostile atmosphere soon after her marriage. She was not treated well in her husband’s house. Vijay, her brother and Mani Chand, father have given statements that the in-laws demanded unreasonable dowry which could not be complied with. Even at the wedding ceremony, it seems, that they behaved badly on the payment of insufficient dowry. After the marriage, when Vijay came to take his sister back home as per custom, he was not even permitted to meet her. Kamala Bai, the maid servant accompanying Chanda was also sent back. She has also given detailed version about the unfavourable atmosphere around Chanda.

In addition to the statements of witnesses, there is a report of the Chemical Analyser and post-mortem report. These indicate that the death of Chanda could not be by accidental fire.

The trial court after considering all the facts and circumstances appearing on record and after heating the counsel for accused and Public Prosecutor was of priraa facie opinion that it was not a suicide but homicidal death. Accordingly, the charge under sec. 302 IPC was framed against Dilip. Nathumal, however, was discharged holding that the allegations against him do not justify the framing of any charge.

There were two revision applications before the High Court of Bombay. The State filed a revision challenging the validity of discharge of Nathumal. Dilip on his part ques- tioned the correctness of the charge framed against him and demanded his discharge also. The High Court dismissed the revision preferred by the State while accepting the revision of Dilip. The High Court was of opinion that the charge under sec. 302 against Dilip was misconceived and there is not even a case against him to frame charge under sec. 306 IPC. He was accordingly discharged.

The primary question for consideration before us, is whether the High Court was justified in interfering with the charge framed by the trial court against Dilip? The next question to be considered is whether it is necessary to put Nathumal also on trial with the material on record. We have perused the judgments of the courts below and heard counsel on both sides. We gave our anxious considera- tion to the material on record.

Section 227 of the Code of Criminal Procedure having beating on the contentions urged for the parties, provides:

“227. Discharge–If, upon considera- tion of the record of the case and the docu- ments submitted therewith, and after hearing the submissions of the accused and the prose- cution in this behalf, the judge considers that there is no sufficient ground for pro- ceeding against the accused, he shall dis- charge the accused and record his reasons for so doing.”

Section 228 requires the judge to frame charge if he consider that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject matter of considera- tion by this Court. In State of Bihar v. Ramesh Singh, [1978] 1 SCR 257, Untwalia, J., while explaining the scope of the said sections observed (at 259):

“Reading the two provisions together in juxta pesition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecu- tor proposes to adduce are not to be meticu- lously judged. Nor is any weight to be at- tached to the probable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard finding regarding the guilt or other- wise of the accused is not exactly to be applied at the stage of deciding the matter under sec. 227 or sec. 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.”

In Union of India v. Prafulla Kumar Samal & Anr., [1979] 2 SCR 229 at 234-35, Fazal Ali, J., summarised some of the principles:

“(1) That the Judge while consider- ing the question of flaming the charges under sec. 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out.

(2) Where the material placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdic- tion under the present Code is a senior and experienced Judge cannot act merely as a Post Officer or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

These two decisions do not lay down different princi-

ples. Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case. In fact, sec. 227 itself con- tains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that “the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused”. The ‘ground’ in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. So much is, we think, established law. To be fair to the accused, we have examined the material on record and also perused the statements of some of the witnesses. From the report of the Chemical Analyser, it will be seen that kero- sene residue was found on each and every garment of the deceased. The post-mortem report also indicates, besides burn injuries, that Chanda had sustained contusions on the back shoulders. According to the doctor who conducted the postmortem, those contusions might have been caused with the blunt rounded object. The learned Judge of the High Court has not adverted to these facts although the conten- tion of the Public Prosecutor in this regard has been no- ticed. Not merely that, the events that proceeded the death of Chanda did not receive any consideration. The statements of brother and father of Chanda and also that of Kamala Bai–the maid servant of Chanda have been ignored. The conduct of Dilip which was highlighted in the context and circumstances, was brushed aside with little significance. It is said that Dilip was coming down from the staircase when Chanda was crying for help. The manner in which he went on at that time, if true, did not bring him credit. The High Court, however, said:

“That the accused was passive is neither here nor there. It all depends upon the mental response and reaction of an indi- vidual whether he faces the risk and attempt to extinguish the flames or quietly watches the incident. By no interpretation could it be stretched to show that the accused either actively committed the act of burning or ac- tively aided the commission of suicide.”

Counsel for the State was very critical of the attitude adopted by the High Court in dealing with the case. His criticism to some extent is not unjustified. It may not be out of place to mention that “dowry” which is a deep rooted social evil appears to be the cause of ever so many unfortunate death of young ladies. It is an offence brutal and barbaric. It is generally committed inside the house and more often with a circumstance to give an impres- sion that it was a suicidal death. There will be all round attempt to cover up such offence by the family members rather than to expose it. The Government has come forward with legislations from time to time to protect women and to punish those who commit attrocities on them. In 1961 the Dowry Prohibition Act (Act 28 of 196 1) was passed prohibit- ing the taking or giving dowry. By the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) Chapter XX-A was introduced in the Penal Code with sec. 498-A creating a new offence of cruelty. It provides for punishment to husband or his relatives if they harass a woman with a view to coerce her to meet any unlawful demand for property. Section 174 of the Criminal Procedure Code was also amended to secure post-mortem in case of suicide or death of a woman within seven years of her marriage. Section 113-A has been introduced in the Evidence Act, 1872 raising presumption of cruelty as defined under sec. 498-A IPC against the husband or his relatives if the wife commits suicide within a period of seven years from the date of her marriage. These provisions reflect the anxiety of the representatives of our people to deal firmly the menace of dowry deaths. Again, there are sweeping changes made in the Dowry Prohibition (Amendment) Act, 1984. A new offence called ‘Dowry death’ has been created by introducing sec. 304-B in the Penal Code. It raised presump- tion of culpability against the husband or relative hitherto unknown to our jurisprudence. It provides that where the death of a woman is caused by any bums or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called ‘dowry death’. The section also provides hat such husband or relative shall be deemed to have caused her death and shall be pun- ished with imprisonment for a minimum of seven years but which may extend to life imprisonment.

We are referring to these provisions not that they are attracted to the present case. It is only to emphasize that it is not enough if the legal order with sanction alone moves forward for protection of women and preservation of societal values. The criminal justice system must equally respond to the needs and notions of the society. The inves- tigating agency must display a live concern and sharpen their wits. They must penetrate into every dark corner and collect all the evidence. The Court must also display great- er sensitivity to criminality and avoid on all counts “soft justice”.

In the instant case the trial court has considered every material on record in support of the charge framed. The trial court has also given reasons why a charge under sec. 302 IPC is warranted against Dilip even though the police charge sheeted him under sec. 306 IPC. The High Court has gone on a tangent mainly relying on the dying declaration as if it has been conclusively proved to be the true and faith- ful version of the deceased. Apart from that, we are unable to compromise ourselves with the approach made and the opinion expressed by the High Court in respect of many of the matters.

We wish to add a word regarding interference by the High court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to pre- vent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Be- sides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice stares the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.

The counsel for the State was equally critical upon the discharge of Nathumal. It was argued that Nathumal being the manager of the family ought to have taken care of Chanda and without his connivance, none would have demanded dowry and put Chanda on fire. It is true that it is his obligation as manager of the family to protect Chanda and safeguard her rights. We have no doubt that he has failed to perform his moral obligation. But that by itself without anything more is not sufficient to frame a charge against him. We, there- fore, agree with the discretion exercised by the trial court and leave it at that.

In the result and for the reasons stated, we allow the criminal appeals to the extent indicated only as against Dilip. We set aside the order of the High Court and restore that of the trial court. The appeals against Nathumal are dismissed. His discharge is confirmed. We direct the court to proceed with the trial expeditiously.

Before parting with the case, we must place on record the useful service rendered by ‘Stri Atyachar Virodhi Pari- shad’ in this case. It is a social welfare organisation. It has come up to this Court spending its own money by prefer- ring the appeals. We very much appreciate the object of the organisation and the assistance rendered-

P.S.S.					  Appeals    allowed
partly.



Smt. Pooja Tipirneni vs Sri Tipirneni Harsha on 23 January, 2020
Bench: Shameem Akther
     * THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER


 + Transfer Civil Miscellaneous Petition No.229 of 2019


% Dated 23.01.2020


#Smt. Pooja Tipirneni
                                                ... Petitioner

                            Vs.

$ Sri Tipirneni Harsha
                                               ..Respondent



! Counsel for the Petitioner: Sri Prabhakar Sripada,


^ Counsel for the Respondents: Sri T.Bala Mohan Reddy


>HEAD NOTE:


? Cases referred
  1. 2001 AIHC 1310
  2. (1998) 4 SCC 577
  3. (1994) 6 SCC 19
                                       2




       THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER

                TRANSFER C.M.P.No.229 of 2019

ORDER:

This Transfer Civil Miscellaneous Petition, under Section 24 of the Code of Civil Procedure, 1908, is filed by the petitioner/wife, seeking to withdraw F.C.O.P.No.367 of 2018 from the file of the Family Court, City Civil Court, Secunderabad, and transfer the same to the Family Court, City Civil Court, Hyderabad, for trial and disposal in accordance with law.

2. Heard the submissions of Sri Prabhakar Sripada, learned counsel for the petitioner/wife, Sri T.Bala Mohan Reddy, learned counsel for the respondent/husband and perused the record.

3. The learned counsel for the petitioner/wife would contend that the marriage between the petitioner/wife and the respondent/husband was performed on 05.02.2003 at Secunderabad. Out of the wedlock, the couple was blessed with a male child. Subsequently, disputes arose between the couple and the petitioner/wife is residing separately from the respondent/husband for the last five and half years. The respondent/husband is a homosexual and he had sexually abused the minor child in the past. The petitioner/wife had filed a complaint against the respondent/husband regarding the same. Subsequently, the respondent/husband filed the subject F.C.O.P.No.367 of 2018 before the Court below under Sections 710 and 25 of the Guardians and Wards Act, 1890, read with Section 6 of Hindu Minority and Guardianship Act, 1956, seeking custody of the minor child. In the said F.C.O.P., the respondent/husband had earlier filed I.A.No.680 of 2018 seeking custody of the minor child and the Court concerned granted custody of minor child from 15.06.2018 to 30.06.2018 in favour of the respondent/husband. The petitioner/wife challenged the said order by filing C.R.P.No.4055 of 2018 before this Court, wherein, this Court had set aside the said order and restored the custody of the minor child to the petitioner/wife. The order passed by this Court in CRP No.4055 of 2018 was upheld by the Hon’ble Apex Court in S.L.A.(C)No.7536/2019, dated 29.03.2019. Thereafter, the respondent/husband filed another application in I.A.No.470 of 2019 before the Court below seeking custody of the minor child. In that application, the Court below summoned the child and interrogated him in a frightening manner. The minor child had not made the statements which were recorded by the Court below in the order, dated 06.06.2019, passed in the said interlocutory application. When the petitioner/wife asked the minor child as to what he stated before the learned Judge of the Court below, the minor child denied the statements recorded by the Presiding Officer of the Court below. The Court below, though recorded a finding that the minor child had expressed his disinterest to go to his father, allowed the said I.A.No.470 of 2019 and thereby, exhibited biased nature in favour of the respondent/husband. The Court below also overlooked the video footage of the examination of the minor child by a woman police officer and ignored to look into the report lodged by the petitioner/wife under POCSO Act. These aspects show the biased attitude of the Court below. If the subject FCOP continues to be on the file of the Family Court, City Civil Court, Secunderabad, it may cause great prejudice to the petitioner/wife in view of the biased attitude of the Presiding Officer of the said Court and ultimately prayed to withdraw F.C.O.P.No.367 of 2018 from the file of the Family Court, City Civil Court, Secunderabad, and transfer the same to the Family Court, City Civil Court, Hyderabad, for trial and disposal in accordance with law.

4. The respondent/husband filed a detailed counter and contended that this transfer petition is filed without valid grounds and reasons and is devoid of merit. The petitioner/wife is trying to cast aspersions on the learned Presiding Officer of the Court below. A complaint was lodged by the petitioner/wife under POCSO Act against the respondent/husband with false and ulterior motives. The said complaint was closed due to lack of evidence. The respondent/husband is not homosexual. He has not tutored the child at all. In fact, in CRP No.4055 of 2018, this Hon’ble High Court interacted with the minor child and was pleased to observe that the child was extremely happy with the father (respondent herein) and he was not tutored at all. The petitioner/wife is in the habit of making allegations against the learned Presiding Officers of the Courts. The petitioner/wife has no respect towards the Courts and the orders passed by the Courts. She never complied the directions of the Courts and would approach higher Courts on every petty issue. The personal opinions of the petitioner/wife cannot be attributed to the learned Presiding Officers of the Courts. Casting aspersions on the Presiding Officer of the Court below is most unwarranted and are made with ulterior motives. The petitioner/wife cannot seek transfer of the case according to her own whims and fancies. If transfers are made as sought in this case, every unsatisfied litigant would resort to the same practice. The grounds on which the petitioner/wife is seeking transfer of the subject case are untenable and ultimately prayed to dismiss the Transfer Civil Miscellaneous Petition.

5. In view of the above submissions, the point that arises for determination in this Transfer Civil Miscellaneous Petition is as follows:

“Whether F.C.O.P.No.367 of 2018 pending on the file of the Family Court, City Civil Court, Secunderabad, be withdrawn and transferred to the Family Court, City Civil Court, Hyderabad?”

POINT:-

6. The basic principle governing the grant of relief under Section 24 of C.P.C. is that it should not be granted readily, according to the whims and fancies of a litigant, or on the ground that it casts doubt on the integrity, competence and reputation of the concerned Judge. Unless and until a sufficiently cogent ground is shown for transfer of a case from one Court to another, transfer should be not allowed as a matter of course. The High Court has every power to transfer the matters pending in any Tribunal or Court subordinate to it by exercising powers under Section 24 of CPC either suo motu or at the request of either of the parties. When it is at the request of either of the parties, the High Court may transfer the matter only when there is sufficient material to show that the party is not likely to get justice before the Presiding Officer of a particular Court and it is essential in the interest of justice to transfer such a matter to any other Court. But unless there are specific instances of bias and unless the Presiding Officer has personal interest in the subject matter of the case, he cannot be branded as a biased Officer. This would demoralize the officers in the eye of the public and it becomes very difficult for such officers to work in a free and unbiased atmosphere. The mere apprehension of the petitioners on imaginary grounds cannot be accepted.

7. In Smt.Zohra Begum and others V. Additional District Judge, Bareilly and others1, it has been held as follows:

“If every such apprehension is to be accepted, in that event, all cases in which a lawyer is involved, have to be transferred outside the Courts or districts in which he /she is practising. This apprehension that has been expressed is a subjective one. It cannot be substantiated objectively. Subjective apprehension is a 2001 AIHC 1310 particular state of mind of a particular person. Such ground of subjective satisfaction cannot be accepted. It is settled principle of law that if there is sufficiently reasonable suspicion, however little it may be, in the mind of the litigant, in such circumstances, the same has to be taken into account and weighed with, as a factor for the purpose of deciding an application under Section 24 of C.P.C. But such suspicion must have some nexus or some objectivity. If some one comes and says that he has some suspicion and apprehension in his mind, in that event, it will be too general a proposition and will destroy the entire infrastructure of the judicial system. Defeat of a case in the trial Court cannot be a ground for suspicion. If such a proposition is accepted, whenever a litigant losses a case, then he will be asking for transfer of his appeal, and in that event, all appeals are to be transferred simply on the basis of subjective suspicion on the part of the appellant. It will be too wide a proposition, which is very difficult to accept. In view of the settled principle, a suspicion should be accepted under the judicial norms and principles to be a suspicion, which could be reasonably harbored by a litigant. The Court has to find out the situation and the circumstances whether the suspicion so harbored, could be harbored reasonably by a sensible man.

8. In Chetak Construction Limited Vs. Om Prakash and others2, the Hon’ble Apex Court deprecated the practice of making allegations against the Judges and observed as under:

“Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and (1998) 4 SCC 577 rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it……..”

9. In Bhajan Lal, Chief Minister, Haryana Vs. M/s. Jindal Strips Limited and others3, the Hon’ble Supreme Court of India observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice. The Court further held as under:-

“Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as `sua causa’, whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject- matter, from a close relationship or from a tenuous one.”

10. Casting aspersions upon the character, ability or integrity of the judge/judicial officer/authority undermines the dignity of (1994) 6 SCC 19 the court/authority and tends to create distrust in the popular mind and shakes the confidence of the people in the courts/tribunals, which is of prime importance to the litigants in the protection of their rights and liberties.

11. In the instant case, the petitioner, in paragraph No.13 of the affidavit filed in support of this petition, averred as follows: “I do not believe that my child has stated what the judge has recorded. I have spoken to my son after reading the order of the Hon’ble Court and he has denied telling the Judge what was reflected in the order……the Court itself has made sweeping remarks against me as if I have tutored my son……My son told me that he was scared of disobeying the directions of the Judge and he acted as per the directions of the Judge, he gave ‘high five’ to his father and hugged him.” The petitioner further averred that the Presiding Officer of the lower Court has exhibited her bias attitude against the petitioner by making some observations and thereby pre-judged the case.

12. As seen from the material on record, except making these bald allegations, the petitioner/wife could not substantiate her apprehension. Every person has his own way of interacting the others. The Presiding Officer of the Court below, in discharge of her judicial functions, interacted with the child and recorded the findings. There is no need for the presiding officer of the Court below to record adverse/favourable findings against either of the parties. Even otherwise, the petitioner/wife did not adduce even a piece of evidence to substantiate her apprehension that she may not get justice in the Court where the subject FCOP is pending. In the cases of this nature, a party has to have a ‘reasonable’ apprehension in his/her mind that he might not get justice in the Court in which the case is pending. The petitioner has failed to substantiate her apprehension, which seems to be more imaginary than real. She has failed to mention a single instance where the learned Judge has disclosed her biased mind or partial outlook against the petitioner. The order which the learned Judge has passed or the procedure which she has followed in dealing with the petition for custody of the child do not suffer from any short falling or suffer from little lack of power of expression and by no means constitute any act or conduct, which is indicative of bias or which may lead to a reasonable apprehension that the petitioner may receive injustice at the hand of the Presiding Officer. Mere suspicions and presumptions prevalent in the mind of the petitioner/wife that she would not get fair trial are baseless.

13. Be it noted that if there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour and use of disrespectful language are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.

14. Under these circumstances, this Court finds that the apprehension in the mind of the petitioner/wife cannot be termed as a reasonable apprehension and therefore, the ground on which the subject F.C.O.P. is sought to be transferred cannot be acceded to. The Transfer Civil Miscellaneous Petition is devoid of merit and is liable to be dismissed.

In the result, the Transfer Civil Miscellaneous Petition is dismissed.

_____________________ Dr. Shameem Akther, J 23rd January, 2020.

Note:-

Mark LR Copy (B/O) Bvv