Allowed

Nalisetty Sadasiva Rao v. The State of Andhra Pradesh

Andhra Pradesh HC19 Aug 2024CRLP/11335/2018

Case brief

AI extract

What is this about?

High Court quashed proceedings in C.C. No. 166/2018 against petitioners under Sections 494 and 420 IPC regarding remarriage. Catch of abuse of process was found where prior maintenance judgment confirmed divorce and the complaint lacked evidence of fraudulent inducement.

What did the court decide?

Criminal proceedings in C.C. No. 166 of 2018 against petitioners quashed; miscellaneous applications pending if any dismissed.

Nalisetty Sadasiva Rao Vs The State of Andhra… — Matrimonial and Divorce | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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TUESDAY, THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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CRIMINAL PETITION NO: 11335 OF 2018

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Between:

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Nalisetty Sadasiva Rao, S/o. Pullaiah, aged about 65 years, Occ;

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Retired employee, R/o. Near Raviteja Kalyana Mandapam , Atmakur Town and Mandal, SPSR Nellore District.

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Kolagani Bhavani, W/o. Sadasiva Rao aged about years, R/o. Near

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Raviteja Kalyana Mandapam, Atmakur Town and Mandal, SPSR

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Nellore District.

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...Petitioners/Accused Nos.1 and 2

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AND

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The State of Andhra Pradesh, Through Public Prosecutor High Court of

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Andhra Pradesh.

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2, Neelisetty Uma Mahewswari, W/o Neelisetty Sadasiva Rao, aged about 62 years, R/o Atmakuru Village and Mandal, SPSR Nellore District.

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...Respondents/Complainants

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings in C.C.No.166/2018 on the file of the Honourable Court of Judicial Magistrate

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»>*

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of First Class, Atmakur, SPSR Nellore District in respect of F^etitioners/Accused Nos. 1 and 2.

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I-A. NO: 2 OF 2018

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further Proceedings in C.C No. 166/2018 on the file of the Judicial Magistrate of First Class, Atmakur, SPSR Nellore District including appearance of the petitioners. This Petition coming on for hearing, upon perusing^{theMemorandum} of Grounds of Criminal Petition and upon hearing the arguments of Sri V F^oopesh Kumar Reddy, Advocate for the Petitioners and the Public Prosecutor on behalf of the Respondent No.1.

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The Court made the following:

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[3333]

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APHC010800532018

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI S-. (Special Original Jurisdiction) 0r^

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TUESDAY ,THE TWENTIETH DAY OF AUGUST TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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rpiMlNAl PETITION NO: 11335/2018

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EJetween;

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Nalisetty Sadasiva Rao and Others

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...PETITIONER/ACCUSED{S)

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AND

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...RESPONDENT/COMPLAINANT(S) The State Of Andhra Pradesh and Others

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Counsel for the Petltioner/accused(S);

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1.V ROOPESH KUMAR REDDY

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Counsel for the Respondent/complainant(S):

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PUBLIC PROSECUTOR (AP)

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The Court made the following:

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VS,J CrI.P 11335 2018

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ORDER:

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This petition is filed under Section 482 of Criminal^{ProcedureCode(for} short “Cr.P.C.”) to quash the proceedings in C.C.No.166^{of2018onthefileof} learned Judicial Magistrate of First Class, Atmakaur,^{SPSRNelloreDistrict,for} the offences punishable under Sections 494, 420 of^IPC.

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The petitioners herein are the accused Nos. 1 and 2. The respondent No.2 is the defacto complainant. The respondent No.2 on 26.09.2017 submitted a complaint to the Sub-Inspector^{ofPolice,Atmakuru,} Nellore District wherein she has stated that she got married to the petitioner No.1 herein on 21.10.1970 and was later blessed with^twosonsand one daughter. While they were leading their marital life,^{thepetitionerhereingot} into an illegal relationship with a near relative i.e.^{petitionerNo.2herein,who} is working as anganwadi supervisor. It is stated that^{thenameofthepetitioner} No.1 herein was entered as husband in S.R. Register of the 2^^ petitioner. While the complainant is still alive, the petitioner^{No.1enteredthenameofthe} petitioner No.2 as his wife and her illegitimate children in his pension proposals. It is further stated that the 2"^^ petitioner^draws a salary of Rs.80,000/- per month and planned that the complainant^{doesnotgetany} pension amount of the 1®' petitioner herein and also^developed revenge against her. The Atmakur court has sentenced the 1®'petitioner^withoneyear imprisonment and Rs.500/- fine in a case filed under^{Section498(A)ofIPC.} Thereafter, the complainant expected that the 1®' petitioner^would have a cordial relationship with her, but, was cheated by marrying the^{2"*^} petitioner herein. The Police, on receipt of the complaint registered^acase in Crime No.264 of 2017 against the petitioners herein, for^{theoffencespunishable} under Sections 494 and 420 IPC, After due investigation by the police, a

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VSJ Crl.P_11335 2018

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charge sheet vide C.C.No.166 of 2018has been filed on the file of Judicial Magistrate of Class, Atmakur for the offences punishable under Sections494, 420 of IPC. The present petition is filed seeking to quash the proceedings in the aforesaid C.C.No.166 of 2018.

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During the course of arguments, learned counsel appearing for the petitioners has reiterated the contentions raised in the petitioner and has further stated that the defacto complainant has already^{filedacriminalcasein} C.C.No.395 of 2005 on the file of the Judicial Magistrate of First Class, Atmakur for the offence punishable under Section 498(A) of IPC, wherein the petitioner No.1 was convicted for simple imprisonment^{andafineofRs.500/-} was imposed. Challenging the said order, the petitioner No.1 has preferred a Criminal Appeal No. 150 of 2010 on the file of I Additional District and Sessions Judge, Nellore, wherein the learned Judge has allowed the appeal on 05.10.2012 by setting aside the conviction and fine imposed by learned Judicial First Class Magistrate, Atmakur upon the 1®' petitioner and held that the 1®’ petitioner was found not guilty for the offence^{underSection498-AIPC.} Fie further contended that the defacto complainant^{hasfiledmaintenancecase} in M.C.No.21 of 2004 on the file of II Additional Judicial Magistrate of I Class, Nellore under Section 125 of Cr.P.C, wherein the court below has dismissed the case by giving a finding that the 1®' petitioner herein has deposed and proved his case with documentary evidence that the respondent No.2 herein is the divorced wife and after obtaining divorce he married the 2^^^^ petitioner herein. The defacto complainant has not chosen to file an appeal on the said order and findings of the court below, as such, it has become^final. As such the impugned charge sheet is liable to be quashed against petitioner No.1.

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Fie further contended that the 2^^ petitioner has not^committed any offence whatsoever and only on the premise that^{sheisthesecondwifeof}

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petitioner No.1, respondent No.2 has given a complaint.^{Hefurtherstatesthat} even if the contents of the charge sheet are taken to be gospel true, none of the provisions of law indicated in the charge sheet^{attractstothefactsofthe} case and hence, the proceedings are liable to be quashed^againstthe2 nd petitioner also.

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Learned counsel appearing for respondent No.2 and learned Additional Public Prosecutor submits that there are allegations directed against the petitioners in the charge-sheet. He submits^{thattheprovisionsof} law indicated in the charge sheet may be looked into by the Court to come to a just conclusion with regard to the culpability of^{thepetitioners.Assuch,this} petition is liable to be dismissed.

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Having heard the submissions made by the learned counsel representing both parties and on perusal of the material^{availableonrecord,} the point that arises for consideration is as follows: ‘‘Whether the proceedings in C.C.No.166 of 2018 on^thefileofthe learned Judicial Magistrate of First Class, Atmakur, SPSR Nellore Distirct, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?’’

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The present petition has been filed under Section 482^ofCr.P.C.

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Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give^{effecttoanyorder} under the Code or to prevent abuse of the process of any Court^or otherwise to secure the ends of justice. It is an obvious proposition^{thatwhenaCourt} has authority to make an order, it must have also power^{tocarrythatorderinto} effect. If an order can lawfully be made, it must be^{carriedout;otherwise} it would be useless to make it. The authority of the Court exists for the

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advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law^{wouldfailtoservethe} purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice.

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Time and again, the scope of powers of this Court under^Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows:

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In “R.P. Kapur v. State of Punjab 1.. the Apex Court laid down the following principles;

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“(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;

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(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;

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(Hi) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety,^{donotconstitutethe} offence alleged; and

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(iv) where the allegations constitute an offence alleged^{butthereiseitherno} legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. ”

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AIR I960 sc 866

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6 VS,J CrI.P 11335 2018

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Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute^theoffence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In^{thateventtherewouldbeno} justification for interference by the High Court as held by the Apex Court in 'Mrs.Dhanalakshmi v. R.Prasanna Kumar^’’

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Keeping in view the above principles, I would like^{toexaminethecase} on hand.

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On a perusal of the record, it is evident that the petitioners are alleged to have committed offences punishable undec^{Section494and420} IPC. For better appreciation of the case, this Court^feels it relevant to extract Section 494 IPC, hereunder;

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“Marrying again during iifetime of husband or wife:- Whosoever, having a husband or wife living, married in any case In which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to

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^ AIR 1990 SC 494

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fine.

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Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall nor have been heard of by such person as being alive within that time provided^the person contracting such subsequent marriage shall, before such marriage takes place. Inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. ”

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Section 420 of I.P.C. deals with punishment for the offence of ‘cheating’.

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Cheating is defined under Section 415 of I.P.C and it is as follows:

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“415. Cheating:- Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

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The essential ingredients to constitute the offence of cheating are:

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There should be fraudulent or dishonest inducement of a person by deceiving him;

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(a) The person so deceived should be Induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and

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(Hi) In cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

VSJ Crl.P 11335 2018

In “V.Y.Jose v. State of Gujarat^” the. Apex Court laid down following ingredients to constitute cheating.

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“An offence of cheating cannot be said to have been^{madeoutunless} the following ingredients are satisfied:

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(i) deception of a person either by making a false or misleading representation or by other action or omission;

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(ii) fraudulently or dishonestly inducing any person to deliver any property: or

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(Hi) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

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For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had^{fraudulentordishonest} intention at the time of making promise or representation.^Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in absence of a culpable intention at the time of making initial promise being absent, no offence under Section^{420oftheIndianPenal} Code can be said to have been made out.

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An offence of cheating may consist of two classes of^cases:

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(1) where the complainant has been induced fraudulently or dishonestly. Such is not the case here;

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(2) When by reason of such deception, the complainant^hasnotdone or omitted to do anything which he would not do or^{omittodoifhewasnot} deceived or induced by the accused. ”

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12 In Swarupa Rani Ronanki Vs. State of Telangana^, while dealing with a similar issue as in the present case, the learned Judge of the High Court of Telangana has observed as under;

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(2009) 3 see 78

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9 VS,J Crl.P_11335_2018

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It is the case of the prosecution that accused No. 1 having his wife living i.e., respondent No. 2, married the petitioner again. Therefore, Section 494 IPC does not attract so far as the petitioner is concerned. Hence, this Court is of the view that continuation of proceedings against the petitioner for offence punishable under Section 494 IPC would amount to abuse of process of law. No other allegations are directed or no other provisions of law are invoked in the charge sheet so far as the petitioner is concerned. Therefore, this Court considers that as a charge for proceeding with trial against the petitioner cannot be framed, it is wholly desirable to quash the proceedings as prayed^for. 13. A bare perusal of the complaint makes it clear that the allegations made in the complaint do not disclose the ingredients to constitute the offence punishable under Section 420 of I.P.C. against the petitioners herein. Further it is the case of the prosecution that the petitioners have committed offence nd punishable under Section 494 IPC, but. it is not their case that the 2 petitioner had got any acquaintance with respondent No.2. The case of prosecution is that the petitioner No.1 is having his wife living i.e. respondent No.2 herein, married the 2'^'^ petitioner herein again; as such, the 2"^ petitioner herein is also liable to be punished under Section 494 IPC. However, on a bare reading of Section 494 IPC, it is clear that if it is shown that any person IS having a husband or wife living, marries again during the life time of such husband or wife, such marriage is void and the said person is said to have committed offence punishable under Section 494 IPC. This indicates that the said offence does not attract the second wife i.e. the 2"^ petitioner herein even as per the principle laid down in Swarupa Rani Ronanki Vs. State of Telangana (referred supra). 14. In so far as the petitioner is concerned, the learned II Additional Judicial Magistrate of First Class, Nellore has observed as under in

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‘*2022 see OnLine TS3164

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the maintenance case

Crl.P_11335_2018

filed by the defacto complainant vide M.C.No.21 of

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2004;

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“18 As seen from Ex.R-3, the Petitioner is the divorced^{wife,andrelinquishedher} right of future maintenance, which is proved by the^{Respondentthatsheishaving} sufficient means to maintain her Moreover, P.W.2 and^{P.W.3didnotstatethat} home and P.W. 1 did not state that she is doing work in P. W. 1 staying in old age from the evidence of P.W.3, it is silent as houses as deposed by P.W.2. /As seen ic when and where he requested R W. 1 to take back^{P. W.1ihtohisfamilyfoldand} in whose presence.

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As seen from the entire evidence of R.W.1, he categorically^deposedand with documentary evidence that the Petitioner is the^divorcedwife proved his case from P.W.1, he married on Bhavani. If really the and after obtaining divorce Bhavani as kept mistress and respondent developed illicit intimacy and kept one not looking after her properly, after their marriage,^{definitely,theywouldhave} make mentioned the same in their first notice dated^{2-11-1993.butthesamewas} mentioned in the year 2002, after the alleged divorce^{tookplaceinbetweenthem,} after lapse of 22 years. In all those days, she kept^{quietwithouttakinganysteps} for the reasons best known to her. 15. It can be observed that the petitioner No.1 in the court below^has proved his case by providing evidence that the defacto complainant is the nd petitioner herein after obtaining the divorced wife and has married the 2 divorce, Section 494 of IPC, does not apply to any individual^{whosemarriage} to the specified husband or wife has been officiaiiy^{deciarednullandvoidbya} court with the appropriate authority to make such a^{determination.} In other words, if a court of competent jurisdiction has ruled that the^marriage IS this section will not be relevant or invalid, the provisions outlined in on hand, it is evident from the enforceable for that person. In the case the file of learned 11 Additional Judicial, observations in M.C.No.21 of 2004 on Magistrate of First Class, Nellore that the marriage^{ofthe1*'petitionerandthe}

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defacto complainant was dissolved. Hence, the case of the 1®* petitioner falls under the exception as described in Section 494 IPC.

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Therefore, this Court is of the considered opinion that continuation of proceedings against both the petitioners for the offences punishable under Sections 420 and 494 IPC would amount to abuse of process of law and the proceedings against the petitioners^are liable to be quashed. 17. Accordingly, this criminal petition is allowed. The proceedings in C.C.No.166 of 2018 on the file of learned Judicial Magistrate of First Class, Atrnakur, SPSR Nellore District are hereby quashed against the petitioners herein.

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Consequently, miscellaneous applications pending if any, shall stand dismissed.

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//TRUE COPY//

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To,

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