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Monday, November 11, 2013

Non - taking cognizance against the relatives of husband by J.F.C.M held proper in a D.V.C Case = Smt. Buravilli Siva Madhuri Sri Buravilli Satya Venkata Lakshmana Rao and others = published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9611

Non - taking cognizance against the relatives of husband by J.F.C.M held proper  in a D.V.C Case =

only some vague and general
allegations have been made against the respondents/A2 to A6, and the petitioner
made all the close relatives of her husband as respondents in the DVC. 
Though
she sought the relief of compensation against the respondents 2 to 6 on the
ground that they subjected her to physical and mental torture, virtually all the
reliefs prayed for are against her husband only.  
If a person is made to face
criminal trial on some general and sweeping allegations without bringing on
record any specific instances of criminal conduct, it is nothing but abuse of
process of Court.  
The Court has to subject the allegations levelled in the
complaint to thorough scrutiny to find out prima facie whether there is any ring
of truth in the allegations or whether they are made only with the sole object
of involving certain individuals in a criminal charge, ultimately to make them
to face endless criminal prosecutions.  
To prevent abuse of process of Court and
to save the innocent from the false prosecutions at the hands of unscrupulous
litigants, the criminal proceedings, if they appear to be frivolous and false
have to be quashed at the threshold.

19.     In the instant case, on the same allegations, the petitioner got filed a
case under Section 498-A IPC against the respondents/A2 to A6.  
If technically
viewed, pendency of a case under Section 498-A IPC is not bar for initiation of
proceedings under the PWDV Act. 
But the Court is under a duty to examine and 
find out whether the complainant has been trying to repeatedly involve all the
relatives of her husband in criminal cases.  
In the instant case, by making the
very same general and sweeping allegations, the petitioner get the respondents 2
to 6 involved in the domestic violence case.  
From the nature of the allegations
levelled against the respondents 2 to 6, the intention of the complainant seems
to be that she wanted to involve all the relatives of her husband in the
domestic violence case.  
By examining the facts of the present case, in the
light of the principles enunciated by the Supreme Court in the above referred
judgments, I am thoroughly convinced that the respondents 2 to 6 were involved
in the DVC on account of the vindictive attitude of the petitioner/wife,
continuing them in the DVC will not yield any useful purpose except causing
harassment and hardship to them.  
Both the Courts below, therefore, are
perfectly justified in taking the view that the cognizance of the case shall not
been taken against the respondents 2 to 6/A2 to A6.  
I do not think that the
dismissal of DVC against the respondents 2 to 6 resulted in any grave
miscarriage of justice or abuse of process of Court.  
Though, this Court has
power to entertain an application under Section 482 Cr.P.C. against the order
passed in revisional jurisdiction, this is not a fit case wherein the
extraordinary jurisdiction under Section 482 Cr.P.C. is required to be exercised
in favour of the petitioner.

20.     Therefore, the order dated 08.06.2009 passed by the III Metropolitan
Magistrate, Visakhapatnam which was confirmed by the order dated 25.08.2010  
passed by the IX Additional District and Sessions Judge (FTC), Visakhapatnam in
Crl.R.P.No.33 of 2009 dismissing the DVC against the respondents 2 to 6, does
not require any interference in this criminal petition.

21.      Consequently, the criminal petition is dismissed.

THE HON'BLE MR JUSTICE R. KANTHA RAO        

CRL.P.NO.9612 OF 2010  

25.09.2012

Smt. Buravilli Siva Madhuri

Sri Buravilli Satya Venkata Lakshmana Rao and others

Counsel for the Petitioner : Smt N.(P) Anjanadevi
                               
Counsel for respondents 1 to 6 : Sri Venkateshwara Rao Gudapati

^Counsel for respondent No.7 : Additional Public Prosecutor

<GIST:

>HEAD NOTE:  

? Cases referred:
1 1997 CRL L J 1519
2 1999 AIR (SC) 2374
3 2009 AIR Jhar R 3-815
4 (2010)10 SCC 673
5 1992 SCC Crl.426
6 (2005) 1 SCC 122
7 (2010) 7 SCC 667

ORDER:


        This criminal petition is filed under Section 482 of the Criminal
Procedure Code to quash the Criminal Revision Petition No.33 of 2009 on the file
of the IX Additional District and Sessions Judge (F.T.C), Visakhapatnam
confirming the order of III Metropolitan Magistrate, Visakhapatnam in D.V.C.No.4
of 2009 and direct the III Metropolitan Magistrate, Visakhapatnam to take
cognizance against the respondents 2 to 6 in D.V.C.No.4 of 2009 and dispose of
the same after conducting enquiry as per law and pass necessary orders.

2.      I have heard Smt. N(P) Anjana Devi, learned counsel appearing for the
petitioner and Sri Venkateshwara Rao Gudapati, learned counsel appearing for the
respondents  1 to 6 and the learned Additional Public Prosecutor representing
the respondent No.7/State.

3.      The petitioner Smt. Buravilli Siva Madhuri filed a case under the
provisions of the Protection of Women from Domestic Violence Act, 2005 (for
short ''PWDV Act") seeking various reliefs against them under Sections 18 to 22
of the Act in D.V.C.No.4 of 2009 before the III Metropolitan Magistrate,
Visakhapatnam.  The first respondent is the husband of the petitioner, the
respondents 2 and 3 are the brothers of the first respondent, the 4th respondent
is the wife of the second respondent, the 5th respondent is the mother of the
first respondent and the 6th respondent is the sister of the first respondent.

4.       The III Metropolitan Magistrate, Visakhapatnam examined the
petitioner/complainant, took cognizance of the case against the first respondent
only and dismissed the case against the respondents 2 to 6.  Aggrieved thereby,
the petitioner filed Criminal Revision Petition No. 33 of 2009 which was heard
and disposed of by the IX Additional Sessions Judge (FTC), Visakhapatnam
confirming the orders passed by the learned magistrate, dismissing the criminal
revision petition filed by the petitioner.  Being further aggrieved, the
petitioner filed the present criminal petition under Section 482 of the Code of
Criminal Procedure to quash the order passed by the learned Sessions Judge in
Criminal Revision Petition No.33 of 2009 and to issue a direction to the III
Metropolitan Magistrate, Visakhapatnam to take cognizance of the case against
the respondents 2 to 6 in D.V.C.No.4 of 2009 after conducting an enquiry and
pass necessary orders.

5.       The brief facts of the case leading to filing of the present criminal
petition as alleged by the petitioner in D.V.C. are as follows:
        The marriage of the petitioner with the first respondent was performed on
27.10.2004 at Pendurthi, Visakhapatnam as per Hindu rites and customs.  The 
marriage was consummated and the petitioner led marital life with the respondent
No.1 at Gajularega Village, Vizianagaram District for some time and thereafter
disputes arose between the spouses.  Since then, the petitioner has been
residing at her parents' house at Pendurti. 
 It is alleged in the DVC that on
the instigation of the respondents 2 to 6, the first respondent started
harassing the petitioner to get additional dowry.
 It is said that the first
respondent used to consume alcohol and abuse the petitioner and used to beat her
and the respondents were not even providing sufficient food to the petitioner.
It was further alleged that the first respondent was having illicit contact with
one Mrs. Shyamala Srinivas of Vizianagaram.
The first respondent was harassing
her mentally and physically with a demand to get additional dowry of
Rs.1,00,000/-, the respondents 2 to 6 used to encourage the first respondent to
harass the petitioner and that all the respondents used to assault her.  It was
further alleged that the respondents came to the parents' house of the
petitioner on 05.09.2008 and demanded additional dowry of Rs.1,00,000/- and
abused the petitioner and her mother at her parents' house itself.
 It is said
that again on 11.01.2009 at 6.30 PM, the respondents 2, 4 and 5 came to the
petitioner, where she was staying with the first respondent, threatened her with
dire consequences stating that they did not require her any more and left her at
Prakash Nagar, Pendurthi, Visakhapatnam and went away.  She lodged a report on
13.01.2009 in respect of the said incidents in Pendurthi Police station and
police registered a case in Crime No.9 of 2009 under Section 498-A IPC.
The
petitioner alleged that the first respondent was doing business, having moveable
and immoveable properties worth Rs.40 lakhs, claimed several reliefs in DVC
which include the protection order against the respondents prohibiting the
respondents from alienating the properties without the leave of the Court,
directing the respondents to return the dowry amount with interest @ 24% per
annum, directing the respondent No.1 to pay a sum of Rs.10,000/- as maintenance
to the petitioner and also directing the respondents to pay an amount of Rs.10
lakhs as compensation for causing physical and mental agony to the petitioner.

6.      Learned Magistrate, as already said, after examining the petitioner took
cognizance of the case only against the respondent no.1, husband of the
petitioner and dismissed the case against the respondents 2 to 6 which order was
confirmed by the III Additional District and Sessions Judge (FTC) in revision.

Assailing the said order passed in the revision, the present criminal petition
is filed under Section 482 of the Code of Criminal Procedure to quash the said
order and to issue a direction to the learned Magistrate to take cognizance of
the case against the respondents 2 to 6 after making further enquiry in to the
case.

7.      The point for determination in the present criminal petition is 
whether
there are any valid grounds to quash the order passed by the learned IX
Additional District and Sessions Judge (FTC), Visakhapatnam in Criminal Revision
Petition No.33 of 2009 and to issue a direction to the learned Magistrate to
take cognizance of the DVC against the respondents 2 to 6 after making further
enquiry into the matter?

8.      The crucial point that would arise for determination in this criminal
petition is whether in view of the prohibition contained in Section 397(3)
Cr.P.C. wherein a second revision is barred and whether a petition under Section
482 Cr.P.C can be filed against the order passed in revision petition filed
under Section 397 (1) Cr.P.C.

9.      In support of her contention that even though Section 397(3) Cr.P.C. bars
second revision, still an application under Section 482 Cr.P.C. is maintainable
questioning the said order,  the learned counsel appearing for the petitioner
relied on KRISHNAN AND ANOTHER v KRISHNAVENI AND ANOTHER1 wherein the Supreme            
Court held as follows:
"When the High Court on examination of the record finds that there is grave
miscarriage of justice or abuse of process of the Court or the required
statutory procedure has not been complied with or there is failure of justice or
order passed or sentence imposed by the Magistrate requires correction, it is
but the duty of the High Court to have it corrected at the inception lest grave
miscarriage of justice would ensue.  It is, therefore, to meet the ends of
justice or to prevent abuse of the process that the High Court is preserved with
inherent power and would be justified, under such circumstances, to exercise the
inherent power and in an appropriate case even revisional power under Section
397(1) read with Section 401  of the Code.  It may be exercised sparingly so as
to avoid needless multiplicity of procedure, unnecessary delay in trial and
protraction of proceedings."

The Supreme Court further held as follows:
"In view of the above discussion, we hold that though the revision before the
High Court under Sub-Section (1) of Section 397 is prohibited by sub-section (3)
thereof, inherent power of the High Court is still available under Section 482
of the Code an as it is paramount power of continuous superintendence of the
High Court under Section 483, the High Court is justified in interfering with
the order leading to miscarriage of justice and in setting aside the order of
the Courts below."

10.     The learned counsel appearing for the respondents, on the other hand
relied on two judgments, wherein the Supreme Court explained the extent of
jurisdiction of the High Court under Section 482 Cr.PC. invoked against the
order passed in revisional jurisdiction.  They are:
 (1) RAJATHI v C.GANESAN2
wherein the Supreme Court held as follows:
"All this High Court did in exercise of its powers under Section 482 of the Code
which powers are not a substitute for a second revision under sub-section (3) of
section 397 of the Code.  The very fact that the inherent powers conferred on
the High Court are vast would mean that these are circumscribed and could be
invoked only on certain set principles."

(2)  SHAKUNTALA DEVI v CHAMRU MAHTO3
wherein the Supreme Court held as follows:      
"It is well settled that the object of the introduction of Sub-section (3) of
Section 397 was to prevent a second revision so as to avoid frivolous
litigation, but, at the same time, the doors to the High Court to a litigant who
had lost before the Sessions Judge were not completely closed and in special
cases the bar under Section 397(3) could be lifted. In other words, the power of
the High Court to entertain a petition under Section 482, was not subject to the
prohibition under Sub-section (3) of Section 397 of the Code, and was capable of
being invoked in appropriate cases."

11.     From the judgments rendered by the Supreme Court above referred, it is
obvious that against the order passed in a criminal revision petition, no second
revision is maintainable by virtue of bar under Section 397(3) of the Code.
However, the relief contemplated under Section 482 Cr.P.C. is still available,
but the High Court would exercise inherent jurisdiction in such an event only to
prevent grave miscarriage of justice or abuse of process of the Court and the
interference should be only in exceptional circumstances to do complete justice
between the parties.

12.     The facts of the present case and the circumstances which led to filing of
the present criminal petition have to be examined in the light of the principles
laid down in the aforesaid judgments and the other judgments of the Supreme
Court whereunder the ambit and scope of the jurisdiction under Section 482
Cr.P.C. have been spelt out.

13.     While exercising the jurisdiction under Section 482 Cr.P.C. the High Court
should not adopt a casual or mechanical approach.  It is under a duty to
scrutinize the allegations levelled in the complaint/first information report.
If the allegations are ex facie false or absurd, the Court has to quash the
proceedings to prevent abuse of process of Court and miscarriage of justice.

14.     In MANOJ MAHAVIR PRASAD KHAITAN v RAM GOPAL PODDAR AND ANOTHER4 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."


15.     In the STATE OF HARYANA V BHAJANLAL5,
the Supreme Court pointed out that:      
"where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused,
the proceedings are liable to be quashed. "

16.     Further in ZANDU PHARMACEUTICAL WORKS LTD. v MOHD. SHARAFUL HAQUE6, the              
Supreme Court held as follows:
"It would be an abuse of process of Court to allow any action which would result
in injustice and prevent promotion of justice.  In exercise of the powers, court
would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may examine the question of
fact.  When a complaint is sought to be quashed, it is permissible to look into
the materials to assess what the complainant has alleged and whether any offence
is made out even if the allegations are accepted in toto."

17.     Referring to matrimonial litigation which has been rapidly increasing in
our country.
In PREETI GUPTA AND ANOTHER v STATE OF JHARKHAND AND ANOHTER7, the              
Supreme Court apart from expressing serious concern about genuine cases of dowry 
harassment, observed thus: 
"Exaggerated versions of small incidents should not be reflected in the criminal
complaints.  The Supreme Court pointed out that the allegations in the complaint
should be scrutinized with great care and circumspection especially against the
husband's relatives, who were living in different cities, who were never visited
or rarely visited the matrimonial home of the complainant.  The Supreme Court
reminder the learned members of the Bar and Bench of their social responsibility
and obligation to ensure that the social fibre of family life is not ruined or
demolished.  It made a recommendation to the Parliament emphasizing the need for 
serious re-look at the entire provision of Section 498-A IPC."

18.     Turning to the facts of the present case, only some vague and general
allegations have been made against the respondents/A2 to A6, and the petitioner
made all the close relatives of her husband as respondents in the DVC. 
Though
she sought the relief of compensation against the respondents 2 to 6 on the
ground that they subjected her to physical and mental torture, virtually all the
reliefs prayed for are against her husband only.  
If a person is made to face
criminal trial on some general and sweeping allegations without bringing on
record any specific instances of criminal conduct, it is nothing but abuse of
process of Court.  
The Court has to subject the allegations levelled in the
complaint to thorough scrutiny to find out prima facie whether there is any ring
of truth in the allegations or whether they are made only with the sole object
of involving certain individuals in a criminal charge, ultimately to make them
to face endless criminal prosecutions.  
To prevent abuse of process of Court and
to save the innocent from the false prosecutions at the hands of unscrupulous
litigants, the criminal proceedings, if they appear to be frivolous and false
have to be quashed at the threshold.

19.     In the instant case, on the same allegations, the petitioner got filed a
case under Section 498-A IPC against the respondents/A2 to A6.  
If technically
viewed, pendency of a case under Section 498-A IPC is not bar for initiation of
proceedings under the PWDV Act. 
But the Court is under a duty to examine and 
find out whether the complainant has been trying to repeatedly involve all the
relatives of her husband in criminal cases.  
In the instant case, by making the
very same general and sweeping allegations, the petitioner get the respondents 2
to 6 involved in the domestic violence case.  
From the nature of the allegations
levelled against the respondents 2 to 6, the intention of the complainant seems
to be that she wanted to involve all the relatives of her husband in the
domestic violence case.  
By examining the facts of the present case, in the
light of the principles enunciated by the Supreme Court in the above referred
judgments, I am thoroughly convinced that the respondents 2 to 6 were involved
in the DVC on account of the vindictive attitude of the petitioner/wife,
continuing them in the DVC will not yield any useful purpose except causing
harassment and hardship to them.  
Both the Courts below, therefore, are
perfectly justified in taking the view that the cognizance of the case shall not
been taken against the respondents 2 to 6/A2 to A6.  
I do not think that the
dismissal of DVC against the respondents 2 to 6 resulted in any grave
miscarriage of justice or abuse of process of Court.  
Though, this Court has
power to entertain an application under Section 482 Cr.P.C. against the order
passed in revisional jurisdiction, this is not a fit case wherein the
extraordinary jurisdiction under Section 482 Cr.P.C. is required to be exercised
in favour of the petitioner.

20.     Therefore, the order dated 08.06.2009 passed by the III Metropolitan
Magistrate, Visakhapatnam which was confirmed by the order dated 25.08.2010  
passed by the IX Additional District and Sessions Judge (FTC), Visakhapatnam in
Crl.R.P.No.33 of 2009 dismissing the DVC against the respondents 2 to 6, does
not require any interference in this criminal petition.

21.      Consequently, the criminal petition is dismissed.
___________________  
R. KANTHA RAO, J  
Date: 25.09.2012
Note:

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