Sunday, July 7, 2013

CANT file IPC 498a, 420, 3/4 DP act against female lover, girl friend ! these sections for ELDERLY mothers and sisters , brothers of hubby, and other close relatives.... since we wish to empower YOUNG women, girl friend excluded

THE HIGH COURT OF ANDHRA PRADESH
THE HONOURABLE SRI JUSTICE P.S.NARAYANA
Criminal Petition No.5184 of 2007
10-03-2010
Kumari Sri Uma
D/o. A.Venkateswara Rao
Aged about 24 years, Occ:Student
R/o.Flat No.19, Sri Ranga Sai Towers,
Seetharampuram, Vijayawada
VS
The State of A.P. rep by
Public Prosecutor, High Court of A.P.
and another
Counsel for the petitioner: Sri V.Hari Haran, Advocate
Counsel for the Respondents: Addl. Public Prosecutor
Sri Y.Krishna Mohan Rao, Advocate
:ORDER:
1. Heard Sri Ramakrishna, learned counsel, representing Sri Hari Haran,
learned counsel for the petitioner, learned Additional Public Prosecutor
representing the first respondent and Sri Y.Krishna Mohan Rao, learned counsel
representing the second respondent.
2. This Criminal Petition is filed under Section 482 of Cr.P.C. (herein
referred as 'the Code', for the purpose of convenience) praying for quashing of
the proceedings in C.C.No.620 of 2007 on the file of the XIII Additional Chief
Metropolitan Magistrate, Hyderabad, for the offences punishable under Sections
498-A, 420 read with 109 I.P.C. and Sections 4 and 6 of the Dowry Prohibition
Act, 1961. Sri Ramakrishna, learned counsel, representing Sri Hari Haran,
learned counsel for the petitioner would maintain that even if the allegations
made out in the charge sheet are to be taken as true and correct, none of the
alleged offences would be attracted as it relates to petitioner / Accused No.5
since she is an outsider and not a relative within the meaning of Section 498-A
IPC; that when the ingredients of Section 498-A IPC are not attracted as it
relates to the petitioner / Accused No.5, the question of trying the petitioner
/ Accused No.5 under Sections 4 and 6 of the Dowry Prohibition Act, 1961 would
not arise; that even the alleged offence under Section 420 IPC is not applicable
to the petitioner / Accused No.5 as there is no specific allegation on her to
the effect that she had cheated the defacto complainant; that as far as the
alleged offence under Section 109 IPC is concerned, the stand taken that the
petitioner / Accused No.5 threatened the defacto complainant being false, this
alleged offence also is not applicable. Thus, learned counsel would ultimately
pray this Court to quash the proceedings as against the petitioner / Accused
No.5 and to allow the Criminal Petition. To substantiate his submissions,
learned counsel also relied on certain decisions.
3. Learned Additional Public Prosecutor representing the first respondent had
taken this Court through the allegations made in the charge sheet and would
maintain that it is not that the petitioner / Accused No.5 approached this Court
for the first time, but the petitioner, infact, filed Crl.P.No.1371 of 2005 in
this Court praying to quash proceedings in FIR No.253 of 2004 of Musheerabad
Police Station, Hyderabad, and in the light of the specific observation made
that the threats may, prima facie, amount to criminal intimidation, this is not
a fit matter to quash the proceedings against the petitioner / Accused No.5.
4. Sri Y.Krishna Mohan Rao, learned counsel representing the second
respondent / defacto complainant would maintain that the whole episode of the
prosecution revolves around the petitioner / Accused No.5. It may be that the
petitioner / Accused No.5 cannot be charged with Section 498 I.P.C. and Sections
4 and 6 of the Dowry Prohibition Act, 1961, but, however, as far as other
alleged offences are concerned, may be at appropriate stage, she may also be
tried along with the other accused. Learned counsel pointed out to the order
made in Crl.P.No.1371 of 2005 of this Court in this regard.
5. Heard the learned counsel on record.
6. At the earlier instance, the petitioner herein / Accused No.5 filed
Criminal Petition No.1371 of 2005 before this Court and this Court, by order
dated 29.08.2006, dismissed the Criminal Petition observing as hereunder.
"The present petitioner is A.5 in the crime. The case is registered for the
offences punishable under Sections 498A, 420 and 109 I.P.C. and 4 and 6 of the
Dowry Prohibition Act. Even if the entire allegations in the complaint are
taken as true and correct at this stage, they do not make out a prima facie case
for the offence alleged against the petitioner/A.5. Insofar as the offence
punishable under Section 109 I.P.C. is concerned, the allegation is that this
petitioner threatened the defacto complainant to take divorce from her husband
failing which she would kill her. No act has been committed in consequence of
that abetment. Therefore, even if the allegations in the complaint are taken as
true, no prima facie case for the offence punishable under Section 109 I.P.C. is
made against the present petitioner. However, there was a threat given by the
present petitioner to the defacto complainant, which prima facie amounts to
criminal intimidation. Under Section 503 I.P.C., whoever threatens another with
injury to his person, reputation or property is said to have committed criminal
intimidation. Therefore, there are no grounds to quash the proceedings. It is
for the police to take appropriate decision at the time of filing of the charge
sheet after completion of investigation, on the prima facie offence alleged to
have been committed by the petitioner.
With the above observations, the Criminal Petition is dismissed."
7. The brief facts of the case are as follows:-
The respondent No.2 - defacto complainant married A-1 on 28.11.2003 by
paying Rs.12,00,000/- as dowry, as demanded by A-1 and his brother A-2; that 3
days after the marriage, her husband - A-1 informed that he is not interested in
the defacto complainant and he had a pre-marital affair with petitioner whom he
wanted to marry but his brother and sister-in-law did not permit the same as
petitioner belongs to a different caste; that subsequently, when she informed
the same to A-2 to A-4, they took it lightly, demanded and harassed her for
additional dowry; that the petitioner herein threatened the defacto complainant
over phone to leave A-1 or else she will be killed. Finally, that A-1 to A-4,
by concealing the pre-marital affair of A-1 with A-5, cheated the defacto
complainant by performing his marriage with the defacto complainant.
8. It is also stated that the petitioner went to Chennai to pursue her
studies in MCA and was staying at her elder sister's house. A-1 pursued his MBA
at Chennai, from Anna University and being neighbours, the petitioner was
friendly with A-1. In reply to the allegations, the petitioner denies that the
same is false and invented for the purpose of the complaint and to harass her.
The petitioner is a third party to all the transactions that took place between
the defacto complainant and her husband and his other relatives. The
petitioner, during that time, was in Chennai and is no way concerned with the
said state of affairs between the defacto complainant and her husband. The
petitioner humbly submits that the said allegations against her in the charge
sheet are false and do not constitute any offence. The defacto complainant and
her family members malafidely filed the criminal case against petitioner / A-5
to harass her.
9. It is also stated that after lodging complaint in crime No.253 dated
16.07.2004 by the defacto complainant, the petitioner filed Crl.P.No.1371 of
2005 before this Hon'ble Court seeking to quash of FIR and this Hon'ble Court
rightly pointed out that even if the entire allegations in the complaint are
taken to be true and correct do not make out a prima facie case and while
disposing the said criminal petition, it was left open to the police to
investigate the matter further and file charge sheet in the case. It is humbly
submitted that even as per the allegations in the charge sheet, no offence is
made out against the petitioner nor the petitioner was charged with any offence
and the continuation of the criminal proceedings against this petitioner is
unwarranted, abuse of the process of law and hence, the same needs to be
quashed. It is further submitted that now marriage of the petitioner is fixed
and continuation of the above criminal proceedings, without making out any
offence against the petitioner, will cause severe loss and hardship to the
petitioner.
10. In such a situation, the petitioner / Accused No.5 approached this Court
by filing the present Criminal Petition, under Section 482 of the Code.
11. Sri Ramakrishna, learned counsel, representing Sri Hari Haran, learned
counsel for the petitioner, placed strong reliance on para 6 of the decision
reported in Sia Ram and another Vs. State of U.P.1, wherein, it was observed as
follows.
The question which then arises for consideration, a question to which the
Sessions Court and the High Court have not paid enough attention, is whether the
only interference which arises from the fact that Violet gave the particular
shout is that by so doing, she intended to facilitate the murder of Kunwar
singh, Section 107 of the Penal Code which defines abetment provides to the
extent material that a person abets the doing of a thing whom "Intentionally
aids, by any act or illegal omission, the doing of that thing". Explanation 2
to the section says that:
"Whoever, either prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act, and thereby
facilitates the commission thereof, is said to aid the doing of that act."
Thus, in order to constitute abetment, the abettor must be shown to have
"intentionally" aided the commission of the crime. Mere proof that the crime
charged could not have been committed without the interposition of the alleged
abettor is not enough compliance with the requirements of Section 107. A person
may, for example, invite another casually or for a friendly purpose and that may
facilitate the murder of the invitee. But unless the invitation was extended
with the intent to facilitate the commission of the murder, the person inviting
cannot be said to have abetted the murder. It is not enough that an act on the
part of the alleged abettor happens to facilitate the commission of the crime.
Intentionally aiding and therefore active complicity is the gist of the offence
of abetment under the third paragraph of Section 107.
12. Learned counsel also placed reliance on para 7 of the decision reported in
Suram Kiran Kumar Reddy and others Vs. State of A.P. and another2, wherein, it
was observed as follows.
The other offences alleged against the petitioners are under Section 417 and 420
read with section 109 IPC. Under Sec.109 IPC, abettor is liable to the same
punishment as that which may be inflicted on the principal offender if (a) the
act of the offender is committed in consequence of the abetment and (b) no
express provision is made in the IPC for punishment of such abetment. Obviously,
prosecution is taking the aid of Section 109 IPC to rope in petitioners 2 and 4
for the offences alleged against the 1st petitioner by the 2nd respondent. As
stated earlier, no offence can be said to have been committed by 1st petitioner
under Section 493 and 376 IPC. So petitioners 2 to 4 also cannot be said to
have abetted under Sections 493 and 376 IPC.
13. Learned counsel further relied on Male Ramnadham and another Vs. State of
A.P.3, wherein, it was observed as under.
The FIR does not disclose the necessary ingredients of abetment like
'instigation' or 'conspiracy', or 'active support' by the petitioners in
B.Saroja (A-1) preparing illicit arrack, because mere sale of goods across the
counter cannot be said to be 'instigation', or 'conspiracy' or 'active support'.
So, even if all the allegations in the FIR are taken to be true, petitioners
cannot be said to have committed an offence under Section 34 of the Excise Act
or abetment of such offence.
14. The petitioner is an outsider to the family of the defacto complainant.
No doubt, as there was an allegation that illicit intimacy existed between the
petitioner / A-1 and Accused No.5, offences relating to cheating and abetment
also had been attributed. It appears that certain threats also had been made.
The truth or otherwise of all these allegations cannot be gone into at this
stage. There cannot be any doubt or controversy that the ingredients of Section
498A IPC are not attracted so far it relates to the petitioner / Accused No.5.
It is needless to say that when the ingredients of Section 498-A IPC are not
attracted, Sections 4 and 6 of the Dowry Prohibition Act, 1961, also are not
applicable. Likewise, the alleged offence of cheating under Section 420 IPC and
abetment under Section 109 IPC are also not applicable.
15. Hence, it is made clear that the petitioner / Accused No.5 cannot be
charged with any of the alleged offences specified supra and all such offences
are are liable to be quashed.
16. Accordingly, the proceedings against the petitioner / Accused No.5 in
C.C.No.620 of 2007 on the file of the XIII Additional Chief Metropolitan
Magistrate, Hyderabad alone are quashed relating to offences under Sections
498A, 420 read with 109 IPC and Sections 4 and 6 of the Dowry Prohibition Act,
1961.
17. However, keeping in view the prima facie evidence relating to the offence
of criminal intimidation against the petitioner and also keeping in view the
observations made by this Court in criminal petition No.1371 of 2005, this Court
is not inclined to quash the whole proceedings in C.C.No.620 of 2007 on the file
of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, in toto,
leaving it open to the learned Magistrate to consider framing of charge relating
to criminal intimidation in the light of the material available on record.
18. In the result, the Criminal Petition is partly allowed to the extent
indicated above.
?1 AIR 1975 Supreme Court 175
2 2002 (6) ALT 565
3 2003 (1) ALT (Crl.) 95 (A.P.)

 

26th July, 2012.

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This judgment and other similar judgements posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgement or the judgement itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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