Allowed

Smt.Sangeetha Agarwal, Hyd and Anr., v. the State of Telangana, Rep Pp and Anr.

Telangana HC14 Nov 2022CRLRC/663/2016

Case brief

AI extract

What is this about?

High Court allowed criminal revision, holding that the Magistrate illegally took cognizance of IPC offences under Sections 182 and 193 via a private complaint, as Section 195 CrPC mandates specific complaint procedures for these offences. The impugned order dismissing discharge was set aside.

What did the court decide?

Criminal Revision allowed; order dated 19.02.2016 setting aside order dated 19-2-2016 in CC No. 1037 of 2015.

Smt.Sangeetha Agarwal, Hyd and Anr., Vs the… — Civil Procedure and Limitation | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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[/ONDAY ,THE FOURTEENTH DAY OF NOVEIUBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE Dr. JUSTICE G.RADHA^RANI

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Ri INAL REVISION CASE NO: 663 OF 2016

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Criminal Revision Case under Section 397&401 of CrPC against the Judgment made in Crl.MP.No. 1099 of 2015 in CC.No.¹⁰³⁷ of 2015, dated^19-2- 2016 on the file of the Court of the Vll Metropolitan Magistrate, Cyberabad^at Hayathnagar.

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Between:

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Smt.Sangeetha Aganrral, Wo.Dr.Jeetendra Agarwal,^Aged about^{37 years,} Occ: Physiotherapist, R/o. H.no. 3-11-44812, LB.Nagar,^Hyderabad.

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K.Srinivasachary, S/o. Ramanujachary, Aged 70^{years,Occ:Retd.Employee,} R/o, H.no. 3-11-44812, LB.Nagar, Hyderabad.

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... Petitioners/Al & A2

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AND

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The State Of Telangana, rep. by the^{Public Prosecutor, High Court at} Hyderabad.

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Dr.Jeetendra Agarwal, S/o. R.S.Agarwal, Aged about^{39 years, Occ:} Physiotherapist, No. 8-217, Hill Colony, Vanasthalipuram,^Hyderabad

...Respondents

NO:914 OF 2016

-=CRL.R.C.M.P.

Petition under Section 482 of Cr.P.C^praying thatⁱⁿ the^{circumstances} stated in the memorandum of Grounds stated in the^{affidavit filedin supportof} the petition, the High Court may be^pleased to stay all further^{proceedingsin} CC.No. 1037 of 2015 on the file of the^{Vll lr,4etropolitan Magistrate,Cyberabad at} Hayathnagar till the disposal

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Counsel for the Petitioners : Ms. S. SWARANA^REDDY

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Counsel for the Respondent No.1: PUBLIC^PROSECUTOR

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Counsel for the Respondent No.2: MASTAN VALI SHAIK

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The Court made the following: OROER

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'fHE IION'BLE Dr. JUSTICIE G. RADHA RANI

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CRINIINAL REVISION C ASE No.663 OF^20I6

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ORDER:

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This Criminal Rcvision Case is filed by the^{petitioners-Al} and ,A.2 against order dated 19.02.2016 passed in Crl.M.P. No.1099 of 2015 in CC No.l037 of 2015 on the file of the VII Metropolitan Magistrate, Cyberabad at Hayathnagar.

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The casc of the petitioners was that the 2nd respondentcomplainant was the husband of the l"^petitioner and he filed^{a private} complaint alleging that he was married to A1 in the^year 1999^{and led} marital life for a period of I I^years and they^{were blessedwith a} female child, by name, Anuradha. Due to family disputes, A1^left home on her own accord without any^just cause on 12.07.2009 afi thereafter started filing false and fabricated CASES against the complainant and his family members. She filed OP^No.695 of²⁰¹⁰ for divorce on the ground of cruelty and desertion, CC No.29^{of 2011} under Section 498-.{ read^r.vith Sections 3 and^{4 of DowryProhibition} Act (for short'DP Act'), DVC No.l3 ol'2010^{for domestic violence} and also filed C'rinie No.737 of 201I rtutnbered^as CC^{No'837of 2011}

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under Section 324 and 509 IpC with false averments. She succeeded in her unlawful attempt in sending the complainant to judicial custody twice in two criminar cases. In op No.695 of 2010 before the Family court Judge, Ranga Reddy District, she stated that she was necked out of the matrimonial home, but did not speak abour any criminal act on the part of the complainant. But ap an afterthought, filed criminal cases, such as, Crime No.272 of 2011, Crime No.737 of 20ll and DVC No.13 of 2010. Later, she had withdrawn Op No.695 of 2010 but proceeded with the other criminal cases with an intention to harass the complainant and with a motive to grab the house property that was purchased by the complainant. The complainant purchased the house propefty in the name of his mother and A1 and paid t}le sale consideration to the vendor. He wanted to keep the property for the benefit of the girl child. After leaving his company, taking advantage of her name in the sale deed, A1 filed a suit for injunction against the mother of the complainant without actually being in possession of the house property and obtained ex parte injunction with false recitals on oath in her affidavit. subsequently, the injunction order was set aside and was vacated vide order in cMA No.107 of 20tr dated 10.09.2012 and the suit in o.S.No.l49 of 20 r0 was also dismissed on 05.09.2014.

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Dt.GB"\J Ctl.RC No 66J 2016

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In the said suit, Al filed two I.As., i.e., I.A. Nos.44 and 45 of 2011 on 23.02.20i 1. In the said LAs., she filed affidavits on22.03.2011 stating that she filed Crime No.272 of 201 1, but the said crime was registered on 07.04.2011 on her complaint dated 02.04.2011 but not on 22.03.2011. She was hell bound to mislead the court for illegal gains and also got a false FIR issued against the complainant, which would attract Sections )82,211, 193 and 192 IPC. In the said suit, the compiainant filed a^petition vide I.A. No.53 of 2011 stating that he was actuailv residing in the said home by running a clinic. A1 did not choose to flle cor.rnter in the said I.A. The said petition was ailowed by the courl vide order dated 30.06.2011. A1 in collusion with 42, who was her l'atl-rer, filed criminal cases in CC No.29 of 2011 and CC No"837 o1'2011. In CC No.29 of 20i1, the II Metropolitan Magistrate acquitted the complainant holding that there was no harassment either physical or mental and also held that there was no giving and taking of dowry to attract provisions of Sections 3 and 4 of DP Act. The findings oithe court were clear to show that A1 chose to file false and fabricatcd crirninal cases r.vith the sole intention to harass and procure his convir-tion. fhere were specific findings in CC No.29 of 2011 to shorv that Al and A2 colluded with each other and with the help of

Ctl.RC No^{663 2016}

police gave false and fabricated versions. Al also filed DVC No.13 of 2010 on the file of II Metropolitan Magistrate in which she stated that she was necked out of the matrimonial house and was subjected to domestic violence. The said DVC was tried and after full fledged trial, the court vide order dated 09.01.2013 held that wife left the matrimonial home on her own and she was not necked out and also that she was not subjected to domestic violence. The said judgment had attained finality as even the appellate court and the High Courl held that there was no domestic violeice. A1, having not succeeded in her attempts of filing criminal cases hatched up a plan with an intention to grab the house property, filed a criminal complaint with false, created and fabricated version and got registered as Crime No.737 of 2011 in which police filed charge sheet and the same was numbered as CC No.837 of 2011. Ultimately, the said case was also acquitted. The court observed in the judgment itselfthat the version of the de facto complainant-PW.l and PW.2 could not be believed and that they were not speaking the truthrwhich would amount to speaking falsehood in judicial proceedings with the sole intention to procure conviction. In the said judgment, the wound certificate on which 42 signed was disowned by her, but the same signatures were admitted in

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DVC No.13 of 2010 and also by 42 in CC No.29 of 2011, which would clearly show that both Al and A2 were giving false evidence with a motive to procure conviction. The photographs as well as medical report marked as Exs.D4 and Ex.P9 in CC No.837 of 2011 were not corroborating with each other. Both A1 and A2 were aware of the facts and findings of the II Metropolitan Magistrate court in DVC No.13 of 2010 wherein rnpara-22 of the said^judgment, it was observed by the court that the complainant did not beat A1 and A2 To counter such fact, Al and A2 purposefully denied and diso"vned the signatures in Ex.P.9 when confronted to them. lhe complainant fileci rvritten arguments with a request to take action against A1 and A2 for giving false evidence and for fabricating the injuries and prayed to enquire into the matter basing on the material evidence and facts and to punish ,A.1 and A'2 for the offences under Sections 182, 211, 191, 192, 193 and 499 read with 500 IPC under Section 200 Cr.P.C, Section 340 Cr.P.C. read with Section 344 (3) Cr.P.C.

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The VII Metropolitan Magistrate, Cyberabad had taken cognizance for the offences under Sections 182, 193 and 500 IPC

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basing on the swom statement of the witnesses and issued summons to the accused.

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Aggrieved by summoning them as Accused Nos.i and 2, the petitioners filed discharge petition vide Crl.M.p. No.1099 of 2015 under Section 239 Cr.P.C. The complainant who was arrayed as respondent in the said petition filed counter as party in person. On hearing the counsel for the petitioners-A1 and A2 and the respondent as pady in person, the trial court dismissed the petition.

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5" Aggrieved by the said dismissal, the petitioners-Al and A.2 preferred this revision contending that the complaint was not in proper format, the complainant had not even made the State as party. However, the VII Metropolitan Magistrate, Cyberabad at Hayathnagar had straightaway taken cognizance of the said case and issued summons to the petitioners. The learned Judge ought to have seen that the complainant who was earlier remanded to judicial custody in CC No.29 of 2011 in Crime No.l1 18 of 2010 of L.B. Nagar police Station under Section 498-4 IPC, bore grudge against the petitioners and started harassing by frling cases one after another against the petitioners and also against thilfiunsel for the petitioners and also

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-a

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against the Presiding Officer of the Court. It^{wouldshowthe attitude} of the complainant in harassing the petitioners^{withoutany fault of} them. As CC No.29 of 201 i ended in acquittal, the^{complainant filed} false criminal case before the Vanasthalipuram Police^{Station vide} Crime No.792 of 2013 against the l't^{petitioner and on her cor.rnsel.} The same was charge sheeted against the l't^petitioner only. The petitioners had filed quash petition before this Court vide Crime No.826 of 2014 and the same was admitted by the court^{and stayof all} further proceedings was granted in the said case. As the complainant failed in his attempt, he filed the present CC No.l037 of²⁰¹⁵ only to harass the present petitioners. The learned Judge failed to^appreciate the fact that the name of the complainant alone^{was shown as sole} wifiress in column No.6 of the private compliant but he had ropedⁱⁿ several witnesses subsequently to substantiate his contention. One of the witnesses happened to be accused in a case^{filedby the petitioners} in Crime No.681 of 20i0 of Vanasthalipuram Police Station filed by the petitioners. The lower^court failed to appreciate^{the fact that the} prosecution failed to prove its case, but it was not^the l't^petitioner, who failed to prove her case. The lower court^{failed to appreciate the}

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contention put forth by the I't petitioner.{he^{leamed Judge ought to} I

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have seen that the complaint filed by the complainant, who was an accused in CC No.837 of 2011 and also in CC No.29 of 2011was one arrd the same and if such complaints were taken into cognizance, it would amount to maiicious prosecution and abuse of process of law. The lower court ought to have retumed the complaint without taking cogruzance as it was not considered by the same court earlier in CC No.837 of 2011 on the contentions raised by the complainant herein who was accused in the said case at the time of arguments filed by him and prayed to set aside the ordbr dated, 19.02.2016 passed in Crl.M.P. No. 1099 of 20 1 5 in CC NO. I 03 7 of 2015 on the file of VII Metropolitan Magistrate, Cyberabad.

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Heard leamed counsel for the petitioners and the learned counsel for the 2nd respondent.

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Perused the record. On perusal of the record it would disclose that the VII Metropolitan Magistrate, Cyberabad at Hayathnagar had taken cognizance of the case on the private complaint filed by the 2.d respondent-complainant for the otfences under Sections lg2, 193 and 5OO IPC.

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Dt.GRll,J C .RC No 663 2016

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Section¹ 82 IPC reads^as follows:

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"182. Falsc information, with intent to^cause public servant to use his lawful^power to^the injur; of another person.-- Whoever^{gives to any} public servant any information which he knows^or belicves to bc false, intending thereby to^cause,or knou.ing it to be tikely that he will^{therebycause,} suclr^pu blic servant

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(a) to do or omit anlthing which such public servant ought not to do or omit if the true^{state of facts} respecting which such information^{is given were} kno''l'n by him, or

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(b) ro^,.rse thc lawful power of such public servant to the iniuri' or annoyance ofany^person,

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sirail be punished *ith imprisonment^{of either} dcscripLion for a tem which may extend^{to six} morrths, or with fine which may^extend to^one tirousand mpees, or with both."

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Section 193 IPC is pertaining to^{punishment for false evidence}

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It reads as follou's;

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" 193. Punishment^{for false evidence'}

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Whoever intentionally^{givesfalse evidencein any of} a^{judicia!proceeding,} or fabricates^{falseevidence} for the purpose of being used in any^{stage of a} judiciai proceeding, shall be punished with imprisorunent of^{either descriptionfor a termwhich} may extend to^{seven years,and} shall^{also be liable} to llne:

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anci rvhoever intentionally^gives or^{fabricates false} evidence in any other^case, shall^{be punishedwith} imprisonment of^{either descriptionfor a termwhich} may extend to three^{years, and shallalso be liable to} fine.

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tlxplonation /.A trial before a Court-martial^{is a} judicial proceeding.

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Explan.ation Z.An investigation directed by law preliminary to a proceeding belore a Courl of J.ustice. ts a stage ola judicial proceeding, though that investigation may not take place befori'a Coirt of Justice."

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Section 500 lpc is pertaining to punishment fbr defamation. Defamarion is defined under Section 499 lpc.

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For prosecution of offences under Sections 1g2 and 193 Ipc, certain conditions are requisite for initiation of proceedings as laid down under Section 195 Cr.p.C. under Chapter_XlV. Section 195 CI.P.C. reads as fbllows:

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"195. Prosccution for contempt of lawful authoritv of public servants, for offences against public .justice and for offences relating to documents given in evidencc.

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(1) No Court shall take cognizance-

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(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of tlie Indian Penal Code (45 of 1860 ), or

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(ii) of any abetment of, or attempt to commit, such offence, or

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(iii) ol any criminal conspiracy to commit such offcnce, except on the compiaint in writing of the public servant concemed or oi some other puilic scrvant to whom he is administratively subordinate;

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r bt rir of anv oflence punishable under any ol rhe lollorr irrg scctions ol the indian penal Code (45. ol 1860), namely, sections 193 to 196 (both inclusive). 199, 200, 205 to 2t1(both inclusivej and 228, when such offence is alleged to have ieen

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committed in, or in relation to, any proceeding in any Court, or

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(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is allegeci to have been committed in respect of a docrunent produced or given in evidence in a proceeding in any Court, or

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Couft is subordinate.

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i2. l-hus, the criminal procedure code stipulates that fbr taking cognizanie of an offence under Section 182 IPC, it u,as the public seryant concemed, who has to lodge the complaint with regard to the false information given to him or for misusing his lawful porver and for taking cognizance of the offence under Section 19-1 IPC, it was the concemed court or the Officer of the court authorized by the courl in writing, who has to give the complaint before whom evidence of pe4ury or fabricating false evidence has taken place. Cognizance of the otTences under Sections 182 and 193 IPC cannot be taken on the

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basis of a private complaint filed by the complainant.

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1 3. The leamed counsel for the petitioners relied upon the judgment of the Hon'ble Apex Court in Narendra Kumar Srivastava v. State of Bihar and Othersr, wherein it was held that prosecution could be initiated only by sanction of court under wftose proceedings offence referred to in Section 195(1Xb) Cr.P.C. was allegedly committed. It also fuither held that objeot of Section 340 is to ascertain whether an offence affecting the administration of justice was committed in relating to any document produced or given in evidence in courl during the time when document or evidence was in custodia legis and whether it is also expedient in interest ofjustice to take such action. The court has not only to ascertain prima facie case but also to see whether it is in public interest to allgw criminal proceedings to be instituted. On facts, it held that Magistrate erred in taking cognizance of offence under Section 193 IPC on the basis of a private complaint.

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On a perusal of the complaint, there were no allegations attracting the offence of defamation. Thus, the trial courl taking cognizance of the case against petitioners - A1 and ,A.2 for the offences under Sections 182, 193 and 500 IPC is illegal, as the condirions requisite for initiation of pilJ.Oi.rgs for the above offences are not '^{(20 r9)3 scc 318}

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D|GRRJ 13 CttRC Na.663 2016

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satisfied" As such, taking cognizance by the^{VII Metropolitan} Magistrate, Cyberabad, Hayathnagar in CC^No.103l of^{2015 against} the petitioners-Al and .A2 is liable to set aside. As the trial coud erred in dismissing the discharge petition without taking into consideration the necessary requisites for taking cogfiizance of the above offence, it is considered ht to set aside the impugned order.

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In the result, the Criminal Revision Case is allowed setting aside the order dated 19.02.2016 passed in Crl.M.P" No.l099 of 2015 in CC No.1037 of 2Al5 on the file of the VII Melropolitan Magistrate,

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Cyberabad at Hayathnagar"

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Pending miscellaneous petitions, if any, shall stand closed.

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sd/- M. DEPUTY RE //TRUE^COPY// SECTI ON OFFICER

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To,

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The Vll^{Metropolitan Magistrate' Cyberabad'at Hayathnagar'}

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The Station^{HouseOfficer'PoliceStation' Vanasthalipuram'Cyberabad'} Hyderabad. Two CCs^{to the Public Prosecutor'High Court for the Stateof Telangana at} Hyderabad.(OUT)

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