Monday, July 8, 2013

divorce girl remarries and scr3ws SECOND husband! HC refuses quash for second husband !!



High Court of A.P., Hyderabad

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR          

Criminal Petition No. 1153 of 2008

27-04-2010 

T.V. Manohar. 

Vs

The State of A.P., and another

Counsel for the Petitioner: Sri O. Manohar Reddy
Counsel for the Respondent No.1 :   Public Prosecutor
Counsel for the Respondent No.2 :   ----

:Order:  

This Criminal Petition, under Section 482 Cr.P.C., has been filed by the petitioner to quash the proceedings in C.C. No. 10 of 2008 on the file of the III Additional Judicial Magistrate of First Class, Tirupati.  

The second respondent herein is the de facto complainant in the Criminal Case. The de facto complainant lodged a complaint against the petitioner herein and her case is as follows.  

She married one A.B. Ram Kumar in the year 1987 and that they were blessed with a male child.  It is alleged that the said A.B. Ram Kumar developed illicit relationship with another woman, which led to the divorce between the second respondent and said A.B. Ram Kumar.  

The specific  case of the second respondent is that subsequently she married the petitioner in the year 1997 and that they lived happily for about one year and subsequently the petitioner started suspecting her character.  

It is also alleged that the petitioner started abusing her and beating her and that he had taken away Rs.80,000/- and 30 sovereigns of gold ornaments on different occasions.  It is also her case that she was doing saree business and the petitioner used to take away sarees and sell them and harass her.  It is also her case that on 27.05.2006 the petitioner beat her with a stick and also on 28.12.2006 at about 8.00 AM he beat her and thrown her out of his house and that he had also abused and beat her mother.  It is also alleged that the petitioner used to threaten to kill the second respondent and her son who was born through her first husband and also her mother.  It is also her case that till the date of filing complaint, she had given about Rs.3,00,000/- to the petitioner.  Basing on the said complaint, FIR was registered in Crime No.274 of 2006 of Alipiri Police Station, Chittoor District.  The police, after completing investigation, laid charge sheet.  Initially an objection was raised by the office of the learned Magistrate that proof of marriage was not filed.  Then it was represented that as per Section 50 of the Indian Evidence Act proof of marriage is not required.  On such endorsement and having considered the material placed on record, the learned Magistrate has taken cognizance of the offence under Section 498-A and 323 IPC and Section 4 of the Dowry Prohibition Act and issued process against the petitioner.  The main contention of the learned counsel for the petitioner is that the second respondent is not consistent with regard to the date of marriage.  He submits that the marriage dinner was arranged on 14.06.1998, which falsifies her version that her marriage was performed in 1997.  It is also submitted that in the reply notice given by the counsel for the second respondent the year of the marriage has been shown as 1994.  His main submission is that in the absence of any proof of valid marriage, the proceedings under Section 498-A IPC are not maintainable and therefore they are liable to be quashed.  The only point that arises for consideration is whether there are any grounds to quash the proceedings. 

While exercising powers under Section 482 Cr.P.C., it is settled law that inherent powers have to be exercised carefully.  The primary intention and object of a criminal trial is to find whether the accused is innocent or guilty. Undoubtedly the trial should be fair to the accused, but it also must be fair to the prosecution.  Whether the proof of valid marriage is necessary or not for the trial of a case filed under Section 498-A IPC is the point to be decided by the trial Court.  

According to the learned counsel for the second respondent if a man and woman lived together under one roof for considerable period and if they are recognized by the society that they are wife and husband that itself is sufficient to prove the marital relationship and no other proof, or the conditions as enumerated under the Hindu Marriage Act are not strictly required to be proved while trying the offence under Section 498-A IPC.  The questions whether the petitioner is the husband of the second respondent or not, whether the petitioner herein had harassed the second respondent or not and whether the acts committed by the petitioner make out an offence under Section 498-A IPC or not cannot be decided in this petition.  Unless and until the evidence has been let in by both the parties, the above referred questions cannot be answered.  When a fact is in dispute, without trial, particularly in quash proceedings the truth or otherwise of the allegations cannot be decided.  More over, it is also settled legal position that the High Court is not expected to look into the documents filed by the petitioner/accused at this stage.  Whatever it may be, the settled legal position is that the voluminous documents or evidentiary value of the documents filed by the petitioner/accused cannot be looked into at this stage.  The High Court in exercise of its inherent powers cannot quash the order by weighing the correctness and sufficiency of the evidence and it cannot consider the defence documents.  

Therefore, the so called inconsistent versions shown by the learned counsel for the petitioner with reference to the documents filed by them and their evidentiary value cannot be discussed in this petition. Now what is to be seen is whether the allegations made in the complaint or in the charge sheet constitute any offence or not.  From a reading of the complaint and the allegations made in the charge sheet it cannot be said that the allegations made therein are totally false and cannot be accepted on their face value.  The jurisdiction of the High Court does not embark upon any enquiry whether the allegations in the complaint are likely to be established by evidence or not.  Unless and until it is shown that the allegations set out in the complaint and the charge sheet do not constitute an offence or the ingredients of the alleged offence have not been made out, this Court, while exercising inherent powers, cannot quash the proceedings.  In view of the settled legal position, I am of the view that there are no valid grounds to quash the proceedings. 

Accordingly, the Criminal Petition is dismissed.