Dismissed

The State of Andhra Pradesh, v. Venkateswarlu Tirunagaru

Telangana HC1 Sept 2008WA/1950/1998

Case brief

AI extract

What is this about?

State filed writ appeal against single judge order quashing complaint alleging cruelty, bigamy and forgery. Court found divorce valid, second marriage not bigamous, offences outside jurisdiction or barred by limitation and complaint not bona fide. Impugned order dismissed.

What did the court decide?

Writ appeal dismissed; no interference with impugned order quashing criminal proceedings.

The State of Andhra Pradesh, Vs Venkateswarlu… — Matrimonial and Divorce | Telangana HC (2008)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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MONDAY, THE FIRST DAY OF SEPTEMBER TWO THOUSAND AND EIGHT

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PRESENT

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THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE G.V.SEETHAPATHY

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WRIT APPEAL No.1950 of 1998

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(Writ Appeal under Clause 15 of the Letters Patent against the Order dated 27/07/1998 in WP NO : 9546 OF 1996 on the file of the High Court.)

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Between:

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The State of Andhra Pradesh, Rep. by Public Prosecutor

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..... APPELLANT

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AND

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1 Venkateswarlu Tirunagaru, S/o. Late Venkata Narsaiah, 13441 Gustavaberg, Sweden.

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2 Smt. Mangamma, W/o. Late Venkata Narsaiah,

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R/o. 6-45/1, Jeenigal Street, Nellore.

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3 T. Penchalaiah S/o. Late Venkata Narasaiah R/o. 6-45/1, Jeenigal Street, Nellore

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4 T. Prabhakar W/o. Late Venkata Narsaiah,

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R/o. 6-45/1, Jeenigal Street, Nellore.

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5 Smt. Ranganayakamma

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R/o. 6-45/1, Jeenigal Street, Nellore.

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6 Smt. Himabindu

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R/o. 6-45/1, Jeenigal Street, Nellore.

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7 D.V.Seshaiah

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R/o. 6-45/1, Jeenigal Street, Nellore.

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8 Smt. Indira Tirunagaru,

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R8 not necessary to this Writ Appeal.

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9 Sri V. Narayana

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R9 not necessary to this Writ Appeal.

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10 Smt. Anasuya

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R10 not necessary to this Writ Appeal.

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.....RESPONDENTS

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Counsel for the Appellant:GP FOR HOME

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Counsel for the Respondent No.: MR.Y.SRINIVASA REDDY The Court made the following:

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Form-NIC-OGS/WA { SRAVAN }

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THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT APPEAL No.1950 of 1998

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JUDGMENT : ( per Hon’ble Sri Justice G.V.Seethapathy )

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The appeal is directed against the order dated 27.07.1998 in W.P.9546/1996, wherein the said writ petition filed under Article 226 of the Constitution of India by respondents Nos.1 to 7 herein, seeking to quash proceedings against them in CC.482/1992 on the file of the XXII Metropolitan Magistratecum-Mahila Court, Hyderabad, was allowed.

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Heard the learned Government Pleader for Home, representing the appellant/State. None appeared for the respondents. Perused the records.

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The 8^th respondent herein is stated to have filed a private complaint in CC.482/1995 before the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad against her husband, the 1^st respondent herein and several others alleging offences under Sec.498-A, 494, 468 and 120-B of IPC. The learned Magistrate forwarded the said complaint to the concerned police for investigation. Aggrieved by the same, the accused in the said complaint i.e. Respondents Nos.1 to 7 herein filed W.P.No.9546 of 1996 before this Court seeking to quash the further proceedings in the said complaint.

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The main contention of the writ petitioners was that there

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was valid divorce granted by the District Court in Nacka, Sweden on 28.03.1994 in between the 1^st petitioner and 2^nd respondent in the writ petition and subsequently the 1^st petitioner in the writ petition married the 6^th petitioner and entering into second marriage subsequent to the grant of valid divorce was not an offence under Sec.494 of IPC. The Writ petitioners would further contend that the second marriage took place at Nellore and even according to the complaint, the alleged acts of harassment have taken place in Sweden upto 1992 and at Nellore in 1993 and therefore, no part of cause of action took place at Hyderabad so as to give jurisdiction to the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad to entertain the complaint. The writ petitioners further contended that the offences alleged against them are barred by limitation.

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The 2^nd respondent in the writ petition, who is the complainant, did not file any counter affidavit opposing the averments made in the affidavit filed in support of the writ petition and it was only the 3^rd and 4^th respondents who chose to file the counter affidavits. In the said counter affidavits, it was admitted that the 2^nd respondent in the writ petition did not file any appeal against the decree of divorce granted by a Court in Switzerland. In view of the fact that the 2^nd respondent/complainant has not filed any counter affidavit opposing the averments made in the writ affidavit and in the light of the admissions made by the respondents 3 and 4 in their counter affidavits, the learned single Judge observed that when once the divorce is admitted in between the 1^st petitioner and 2^nd respondent, the 1^st petitioner is entitled to marry again after expiry of the period to prefer an appeal and hence the 2^nd

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marriage of the 1^st petitioner with 6^th petitioner does not amount to a bigamous marriage, attracting the ingredients to Sec.494 of IPC. It was further observed that even assuming for a moment that it amounts to a bigamous marriage, the said marriage was performed in Nellore and therefore, the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad has no jurisdiction to take cognizance of the offence or to direct the police to investigate into the alleged offence.

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Regarding the other offences also the learned single Judge found that the alleged overt acts attracting the ingredients of Sec.498-A IPC are not committed within the jurisdiction of the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad and consequently the said Court has no jurisdiction to get the said offence investigated.

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The learned single Judge further found that the offence alleged under Sec.468 of IPC which is based on a fax message said to have been sent on 27.05.1992 from Sweden to the State Bank of Hyderabad, NRI Cell, is clearly barred by limitation since more than 3 years have elapsed from the date of sending the said fax message till the date of the complaint.

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The learned Single Judge further held that the admitted facts coupled with the silence of the 2^nd respondent in the writ petition and the averments made in the counter affidavits filed by respondents 3 and 4 indicate that the complaint was filed at the instance of respondents 3 and 4, and the 2^nd respondent was not very serious in prosecuting the matter.

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In fact, the present appeal is filed by the State and no appeal has been filed by the complainant/2^nd respondent in the writ petition aggrieved by the impugned order in the writ petition. It is obvious that the 2^nd respondent in the writ petition who was the complainant in CC.482 of 1995 is not

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interested in pursuing the complaint. She did not file any counter affidavit in the writ petition and she also did not file any appeal challenging the impugned order dated 27.07.1998. The learned single Judge, therefore, opined that it is not necessary to consider whether the complaint is validly registered without obtaining the consent of the Central Government under Sec.188 of Cr.P.C. The learned single Judge further referred to the guidelines issued by the Honourable

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Apex Court in State of Haryana vs. Bhajan La l^[1] and other cases wherein the parameters for quashing the criminal proceedings under Sec.482 Cr.P.C. are clearly set out. Applying those guidelines to the facts of the case on hand, it was observed that the complaint filed by the 2^nd respondent in the writ petition was not bona fide and the XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad has no jurisdiction to entertain the same and the complaint was also barred by limitation. Under those circumstances, further proceedings in CC.482 of 1995 before the XXII Metropolitan Magistrate-cumMahila Court, Hyderabad are rightly ordered to be quashed by the order under appeal. We are, therefore, of the opinion that the impugned order does not require any interference.

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In the result, the Writ Appeal is dismissed. No order as to costs.

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__________________ V.ESWARAIAH,J

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______________________ G.V.SEETHAPATHY,J

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Dated: 01.09.2008 Dsr

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........REGISTRAR

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