Quash the F.I.R. - 498 -A = irrespective of validity of the customary divorce effected between the second respondent and the petitioner on 30.04.1994, the fact is that they have been residing separately since then. The question of the petitioner harassing the second respondent therefore, will not arise. Moreover, the limitation for taking cognizance of the offence punishable under Section 490-A IPC as per Section 468 Cr.P.C. is three years. Since the parties have been residing separately since 30.04.1994, the alleged offence punishable under Section 498-A IPC against the petitioner is barred by limitation on the date of report lodged by the second respondent.


THE HON'BLE MR JUSTICE R. KANTHA RAO        

CRL.P.NO.1132 OF 2012  

24.09.2012

Appikatla Imanyalu @ Immanuel

State of A.P. and another

Counsel for the Appellant : Sri C.Masthan Naidu
       
Counsel for respondent No.1: The Additional Public Prosecutor Representing the
State

<GIST:

>HEAD NOTE:  

? Cases referred:
1 (2009) 1 SCC (CRL) 404
2 (2009)10 SCC 604
3 (2010)10 SCC 673


ORDER:


        This criminal petition is filed under Section 482 of the Criminal
Procedure Code to quash FIR in Crime No.486 of 2011 of Machavaram Police
Station, Vijayawada.

2.      I have heard the learned counsel appearing for the petitioner and the
learned Additional Public Prosecutor representing the first respondent/State.
Though served with notice, none appeared for the second respondent/de facto
complainant.

3.      The brief facts of the case which are sought to be quashed are that the
marriage of the second respondent/de facto complainant with the
petitioner/accused was performed on 28.04.1980 and the couple blessed with two
children.  According to the second respondent, at the time of marriage an amount
of Rs.25,000/- was paid as dowry to the petitioner besides gifting one acre of
land by the parents of the second respondent.  It is alleged that the petitioner
used to harass the second respondent with a view to obtain divorce and to marry
another lady, so as to get more dowry.  With these allegations, the second
respondent lodged a report with the Station House Officer, Machavaram Police
Station, who in turn basing on the said report, registered a case in Crime
No.486 of 2011 under Section 498-A of IPC.

4.       The learned counsel appearing for the petitioner would contend that the
marriage between the petitioner and the second respondent, which was solemnized
in Christian form was dissolved by customary divorce on 30.04.1994, since then
both of them were living separately, the question of the petitioner harassing
the second respondent, therefore, will not arise and that the second respondent
lodged a report with the police only to harass the petitioner.  The learned
counsel therefore, seeks to quash the FIR.

5.      Copy of the customary divorce was filed along with the criminal petition,
which shows that the divorce was effected between the parties on 30.04.1994.
The facts of the case would reveal that since the date of divorce the parties to
the marriage have been residing separately.  The learned counsel for the
petitioner relied on a judgment in M.SARAVANA PORSELVI v A.R.CHANDRASHEKAR @          
PARTHIBAN AND OTHERS1 wherein the Supreme Court on identical facts held as    
follows:
"The customary divorce may be legal or illegal. The fact that such an agreement
had bee entered into or the appellant had received a sum of Rs.25,000/- by way
of permanent alimony, however, stands admitted.  The document is a registered
one.  The appellant being in the legal profession must be held to be aware of
the legal implication thereof.  If the contents of the said agreement are taken
to be correct, indisputably the parties had been living separately for more than
ten years.  How then a case under Section 498-A of the Penal Code can be said to
have been made out and that too at such a distant point of time is the question,
particularly in view of the bar of limitation as contained in Section 468 of the
Code of Criminal Procedure.  Even otherwise it is unbelievable that the
appellant was really harassed by her husband or the in-laws."

6.       Further, in the instant case, even if the allegations mentioned in the
report lodged by the second respondent with the police are considered to be true
which are narrated hereinbefore, they do not attract the offence punishable
under Section 498-A IPC.
7.       In BHASKAR LAL SHARMA AND ANOTHER v MONICA2 the Supreme Court held as            
follows:
"For proving the offence under Section498-A IPC, the complainant must make
allegation of harassment to the extent so as to coerce her to meet any unlawful
demand of dowry, or any willful conduct on the part of the accused of such a
nature as is likely to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health. We do not find any such allegation has
been made or otherwise can be found out so as to enable us to arrive at an
opinion that the appellants prima facie have committed such an offence.  The
complaint petition must also be read with several other documents which form
part of the complaint petition.  The children from the first wife of Vikas were
with Monica.  Vikas affirmed an affidavit so as to enable Monica to apply for
their passports.  Vikas, therefore, wanted to have children with them."

8.        The High Court while exercising jurisdiction under Section 482 of the
Code of Criminal Procedure is not supposed to adopt a mechanical approach.  It
has the duty to scrutinize the allegations levelled in the complaint/report.  If
they are found to be absurd or ex facie false, the High Court in exercise of
powers under Section 482 of the Code of Criminal Procedure, can quash the
proceedings.

9.      In MANOJ MAHAVIR PRASAD KHAITAN v RAM GOPAL PODDAR AND ANOTHER3 the                  
Supreme Court held as follows:
"We reiterate that when the criminal court looks into the complaint, it has to
do so with an open mind.  True it is that that is not the stage for finding out
the truth or otherwise in the allegations; but where the allegations themselves
are so absurd that no reasonable man would accept the same, the High Court could
not have thrown its arms in the air and expressed its inability to do anything
in the matter.  Section 482 Cr.P.C is a guarantee against justice.  The High
Court is invested with the tremendous powers thereunder to pass any order in the
interests of justice.  Therefore, this would have been a proper case for the
High Court to look into the allegations with the openness and then to decide
whether to pass any order in the interest of justice.  In our opinion, this was
a case where the High Court ought to have used its powers under Section 482
Cr.P.C."

10.     If the facts of the present case are examined in the light of the
judgments referred above,
  irrespective of validity of the customary divorce
effected between the second respondent and the petitioner on 30.04.1994, the
fact is that they have been residing separately since then.  The question of the
petitioner harassing the second respondent therefore, will not arise. 
Moreover,
the limitation for taking cognizance of the offence punishable under Section
490-A IPC as per Section 468 Cr.P.C. is three years. 
 Since the parties have
been residing separately since 30.04.1994, the alleged offence punishable under
Section 498-A IPC against the petitioner is barred by limitation on the date of
report lodged by the second respondent.
Further, even if the entire allegations
levelled in the report are considered to be true, they do not constitute any
offence punishable under Section 498-A IPC.  If a case of this nature is allowed
to be investigated into, it is nothing but abuse of process of law and it would
cause undue harassment to the petitioner and permitting such investigation would
result in miscarriage of justice.
11.     For the foregoing reasons, FIR in Crime No.486 of 2011 of Machavaram
Police Station, Vijayawada is hereby quashed and the criminal petition is
allowed.
__________________  
R. KANTHA RAO, J  
Date: 24.09.2012

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.