HIGH COURT OF ANDHRA PRADESH

The Official Law Report

Fortnightly

2024 | Volume 1 | Part 1

Citation Mode : [ Year ] Volume_No A.P.L.R Page_No

Digitally Published by
High Court Of Andhra Pradesh
ANDHRA PRADESH DIGITAL LAW REPORTS
The Official Law Report
Fortnightly

2024 | Volume 1 | Part 1

Digitally Published by
High Court Of Andhra Pradesh
 Editorial Board

Sri Justice Dhiraj Singh Thakur

Chief Justice of Andhra Pradesh
Patron-in-Chief

Sri Justice Ninala Jayasurya

Judge, Hight Court of Andhra Pradesh
Chairman

Sri Justice B.V.L.N. Chakravarthi

Judge, Hight Court of Andhra Pradesh
Member

Smt. Justice Venkata Jyothirmai Pratapa

Judge, Hight Court of Andhra Pradesh
Member

Dr. Shaik Mohd. Fazulullah

Registar (Recruitment), Hight Court of Andhra Pradesh
Ad-hoc Chief Editor

Dr.S.Rajini
Retired District Judge
Ad-hoc Honourary Editor

Dr.H.Amara Rangeswara Rao

Deputy Secretary, A.P State Legal Services Authority
Ad-hoc Additional Editor

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 Table Of Content

1. S.K.RABBANI BASHA & ANOTHER vs. THE STATE OF A.P. ..................... 1

2. B PRAMEELA vs. The State of Andhra Pradesh ............................ 7

3. Inaganti Gandhi vs. Mullapati Malkondaiah ............................... 13

4. Challa Jaya Shankar Reddy vs. The State of Andhra Pradesh .................. 21

5. Kancharla Venkata Ramana @ Venkata Rao vs. The State of Andhra Pradesh .... 30

6. HARI SRI LAKSHMI vs. THE STATE OF ANDHRA PRADESH ................... 39

7. PIDIYALA BUJJI BABU vs. STATE OF AP .................................. 54

8. SHAIK CHAND BASHA vs. THE STATE OF ANDHRA PRADESH ................. 60

9. Y C SEKHAR vs. The State of Andhra Pradesh ............................. 68

10. Sri B.Apparao ,(A-2) vs. State -rep by Inspector of Police .................. 78

11. Dadi Prasada Rao vs. State of Andhra Pradesh ............................ 96

12. B SARITHA RAJYA LAKSHMI vs. STATE OF AP ........................... 107

13. CHENGAIPATTU @ NATHINENI SREENIVASULU vs. THE STATE OF AP REP BY ITS PP

HYD. ................................................................ 117

14. Petta Surya Padmaja vs. STATE OF AP ................................. 150

15. Raavi Mahalakshmidora vs. The State of Andhra Pradesh .................. 162

16. BHAJA JAL vs. THE STATE OF A.P. & ANOTHER .......................... 173

17. AKULA KRISHNA MURTHY, E.G.DISTRICT AND ANOTHER vs. THE STATE, REP. BY PUBLIC
PROSECUTOR, HIGH COURT, HYD ......................................... 199
 [2024] 1 A.P.L.R. 1 : 2024:APHC:1009
S.K.RABBANI BASHA & ANOTHER
Vs.
THE STATE OF A.P.
(Criminal Petition 10857 of .2013)
02 January 2024
Sri Justice K Suresh Reddy

Issue for Consideration

Whether the authorities have failed to observe the mandate under

the Prevention of Food Adulteration Rules,1955 in relation to the time
limit prescribed for forwarding copy of the report of Public analyst to
the petitioners and whether it affected the petitioners right to get the
sample of article analysed by the Central Food Laboratory.

Headnotes

ThePreventionofFoodAdulterationAct,1954-Sections16(1)(a)(i),7(i)
and 2 (ia)(m)-Charge sheet filed against accused nos 1 to 3 – Shelf life
of beverage expired on 12.05.2010- Public Analyst gave report
on22.05.2010. Since the shelf life expired, the petitioners were
deprived of an opportunity to exercise their valuable right to get the
sampleofarticleanalysedbytheCentralFoodLaboratory.-Continuing
the criminal prosecution against the petitioners would be an abuse of
process of law - The criminal proceedings against the petitioners
quashed - Criminal petition allowed (Para N0.7)

Acts

The Prevention of Food Adulteration Act,1954

Keywords

Food Adulteration, Beverage, Shelf life of the food article, sample of

food, adulterated, Report of Public Analyst, prescribed period.
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[2024] 1 A.P.L.R. 2

Appearances For Parties

For Petitioners: Mr. S. Leo Raj

For Respondents: Assistant Public Prosecutor (AP)

Case Arising From

Taking cognizance on the complaint filed by the State through the

Food Inspector under Sections 16(1) )(a)(i),7(i) and 2 (ia)(m) of the
Prevention of Food Adulteration Act,1954 against the accused nos 1 to
3 by the learned Additional Judicial First Class Magistrate, Kadiri, in
C.C. NO. 376/2011 and split up case no. C.C. 27/19.

Judgment/Order

Accused Nos.2 and 3 in C.C.No.27 of 2019 on the file of the learned Additional
Judicial First Class Magistrate, Kadiri, Anantapur District, filed the present
criminal petition, under Section 482 Cr.P.C., seeking to quash the proceedings
against them in the said C.C.

2. At the outset, it may be noted that originally the case has been registered
as C.C.No.376 of 2011 on the file of the learned Additiona Whether the
authorities have failed to observe the mandate under the Prevention of
Food Adulteration Rules,1955 in relation to the time limit prescribed for
forwarding copy of the report of Public analyst to the petitioners and
whether it affected the petitioners right to get the sample of article
analysed by the Central Food Laboratory.

l Judicial First Class Magistrate, Kadiri, Anantapur District. However,

subsequently, during pendency of this criminal petition, the case against the
petitioners has been split up and numbered as C.C.No.27 of 2019, as has been
brought to the notice of this Court by the learned counsel for the petitioners vide
Memo dated 05.07.2023. Hence, the case number has been amended in the
petition, vide separate docket order passed today.
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3

3. Facts of the case, briefly stated, are as under:

The subject C.C. has been registered on the complaint filed by the State
through the Food Inspector, Anantapur, under Sections 16(1)(a)(i), 7(i) and
2(ia)(m) of Prevention of Food Adulteration Act, 1954 (for short, ‘the Act of
1954’). It was alleged in the complaint that on 17.04.2010, Food Inspector,
Anantapur, visited the business premises of M/s. Nagarjuna Agencies,
Rayachoti Road, Kadiri, and at that time, accused No.1 was transacting the
businessandheintroducedhimselfasvendor-cum-proprietorofM/s.Nagarjuna
Agencies. Having suspected adulteration of Kinley Club Soda, which was kept
for sale for human consumption, the Food Inspector purchased 3x600 ml.
sealed pet bottles of Kinley Club Soda, labelled as Kinley Club Soda, Hindustan
Coco Cola Beverages Private Limited, Sy.No.127 to 131, Kapuganneri Village,
Sri Kalahasthi Mandal, Chittoor District, Andhra Pradesh, by paying its cost, in
the presence of witness. It was alleged that on enquiry, the vendor did not
disclose the source of supply. Having followed due procedure, one part of the
sample of the food article was sent to Public Analyst and remaining two parts
were kept in the safe custody of Assistant Food Controller & Local (Health)
Authority. After analysis, the Public Analyst gave report dated 22.05.2010,
opining that the sample does not conform to the standard of Total Plate Count
and it is, therefore, adulterated. On 26.11.2010, the Food Inspector sent
detailed report of complete case file to the State Food (Health) Authority,
Hyderabad, for necessary orders. After examination, the State Food (Health)
Authority,Hyderabad,accordedwrittenconsentordervideRc.No.7188/F4/2010
dated 14.03.2011 to launch prosecution against the accused. Accordingly,
charge sheet has been filed against accused Nos.1 to 3, Proprietor of M/s.
Nagarjuna Agencies, Quality Assurance Executive & Nominee of M/s.
Hindustan Coca-Cola Beverages (P) Limited and M/s. Hindustan Coca-Cola
Beverages (P) Limited respectively, for the offences under Section 7(i) and
2(ia)(m) of the Act of 1954, punishable under Section 16(1)(a)(i) of the Act of
1954. The trial Court took cognizance of the offences alleged and issued
summons to accused Nos.1 to 3. Aggrieved thereby, the petitioners/A2 & A3
filed the present criminal petition seeking to quash the proceedings against
them in the subject C.C.

4. Mr. S. Leo Raj, learned counsel for the petitioners, contends that even as
per the averments in the complaint, source of supply of the stock was not
furnished by the vendor. He further submits that the shelf life of the beverage
had expired by 12.05.2010 itself, whereas the Public Analyst gave report on
22.05.2010, and since the shelf life had expired, the petitioners have lost their
right to get the sample of article analysed by the Central Food Laboratory. He
further submits that it is mandatory that a copy of the report of Public Analyst
shall be forwarded to the persons concerned, within a period of ten days after
the institution of prosecution, but in the present case, the complaint was filed on
11.07.2011, whereas the copy of the report of Public Analyst was sent to the
petitioners on 19.09.2011, i.e., after two months of institution of prosecution.
Learned counsel further submits that accused No.2 is not the person nominated
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by the company to be in-charge of and responsible to the company for the

conduct of its business and, thus, arraying him as an accused is unjustified.
Learned counsel, therefore, prays for quashing the proceedings against the
petitioners.

5. On the other hand, learned Assistant Public Prosecutor opposes the

petition, contending that in case of offences affecting health and safety of public
at large, trivial laches with regard to procedural aspects cannot be taken into
account.

6. This Court has considered the submissions made on either side and

perused the entire material available on record.

7. As per Section 13(2) of the Act of 1954, on receipt of report of Public

Analyst to the effect that the article of food is adulterated, the Local (Health)

Authority shall, after the institution of prosecution against the persons

concerned, forward a copy of the said report to such persons, informing them

that if it is so desired, they may make an application to the Court within a period

of ten days from the date of receipt of copy of the report, to get the sample of

the article of food kept by the Local (Health) Authority analysed by the Central

Food Laboratory. Rule 9B of the Prevention of Food Adulteration Rules, 1955

(for short, ‘the Rules’), would mandate that within a period of ten days after the

institution of prosecution, the report of Public Analyst shall be forwarded to the

persons concerned. In the case on hand, as can be seen from the record, the

complaint was filed on 11.07.2011, whereas copy of the report of Public Analyst

was forwarded to the petitioners on 19.09.2011, along with notice under Section

13(2) of the Act of 1954 (available at page No.34 of the material papers). Thus,

it is evident that copy of the report of Public Analyst has not been forwarded to

the petitioners within the period prescribed. Another important aspect to be

noted is that the shelf life of the food article in question, having been prescribed
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as two and a half months from the date of its packing i.e. from 27.02.2010, had

expired in the month of May, 2010 itself. Thus, by the time the complaint has

been filed and copy of the report of Public Analyst has been served on the

petitioners, the shelf life of the food article had already expired. The shelf life of

a sample of food shall have its bearing when the sample is tested or analysed in

the laboratory and once the shelf life of the sample has expired, no useful

purpose would be served in getting the sample analysed by the Central Food

Laboratory. In the case on hand, due to the delay on the part of the prosecuting

agency in initiating prosecution and serving copy of the report of Public Analyst

on the petitioners, the petitioners were deprived of an opportunity to exercise

their valuable right to have the sample analysed by the Central Food

Laboratory. In the circumstances, since the authorities have failed to observe

the mandate under the Rules in relation to the time limit prescribed for

forwarding copy of the report of Public Analyst to the petitioners and as

the valuable right of the petitioners conferred under the Act of 1954 has been

defeated, this Court is of the opinion that continuing the criminal prosecution

against the petitioners would be an abuse of process of law. Thus, the

proceedings against the petitioners in the subject C.C. are liable to be quashed.

8. For reasons discussed above, this criminal petition is allowed and the

proceedings in C.C.No.27 of 2019 on the file of the learned Additional Judicial

First Class Magistrate, Kadiri, Anantapur District, are hereby quashed so far as

accused Nos.2 and 3 therein/petitioners herein are concerned. As a sequel,

pending interlocutory applications, if any, shall stand closed.

Result of the case

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The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 7 : 2024:APHC:7093
B PRAMEELA
Vs.
The State of Andhra Pradesh,
(Criminal Petition 686 of .2020)
04 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether a complaint under Section 494 Indian Penal Code is maintainable

against the second wife of the erring husband or not?

Headnotes

Petition under section 482 of Cr.P.C. to quash the proceedings - Bigamy –

Section 494 of Indian Penal Code, 1860 – Whether a complaint under
Section 494 Indian Penal Code is maintainable against the second wife of
the erring husband or not – Petitioner who is the second wife of Accused
No.1 cannot be prosecuted for the offence under Section 494 as it would
amount to abuse of process of Law – Criminal Petition allowed –
Proceedings against the Petitioner – Quashed. (Para Nos.9 and 10)

Acts

Indian Penal Code, 1860; Criminal Procedure Code, 1973

Keywords

Marrying again during the life time of husband / wife; Bigamy; Second wife;
Quashing of Criminal Proceedings.

Case Law/Reference Cited

Shaheed Naaz vs State of Telangana, Padmanabham Mamidi vs State of Telangana and

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[2024] 1 A.P.L.R. 8

others, Smt. Revathi vs Smt.Nethravathi

Appearances For Parties

For Appellant: Sri V.Nitesh

For Respondents No.1 : Learned Assistant Public Prosecutor

For Respondents No.2 : Sri Lakshmikanth Reddy Desai

Case Arising From

Petitioner seeking to quash of the proceedings on the file of Court of Judicial

Magistrate of First Class, Nandyal registered for the offence under Section
494 Indian Penal Code, 1860 against her.

Judgment/Order

This Criminal Petition is filed under Section 482 of the Code of

Criminal Procedure1 by the petitioner/A.2, seeking to quash the
proceedings in C.C.No.66 of 2020 on the file of the Court of Judicial
Magistrate of First Class, Nandyal, registered for the offence under
Section 494 I.P.C. against her.

2. This is a quash petition filed by the second wife/Accused No.2 of

Accused No.1, pursuant to the complaint filed by the first wife/de facto
complainant. The short question that falls for consideration is whether a
complaint under Section 494 C.P.C. is maintainable against the second
wife of the erring husband or not.

3. Heard Sri V.Nitesh, learned counsel for the petitioner; learned

1 in short 'the Code'

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Assistant Public Prosecutor for the respondent No.1/State and Sri

Lakshmikanth Reddy Desai, learned counsel for the respondent No.2
and perused the material on record.

4. Learned counsel for the petitioner would submit that Section 494
IPC would be attracted only to a person, who marries again during the life
time of husband/wife and that it is not applicable to the petitioner, since
she was not married earlier as on the date of the alleged marriage with
Accused No.1. Learned counsel further would submit that the cognizance
can only be taken on a private complaint in view of the bar under Section
198 of the Code.

5. Per Contra, learned counsel for respondent No.2 would submit that
the marriage of the defacto complainant with Accused No.1 is his second
marriage since he took divorce from his first wife. He would submit that
the marriage of Accused No.1 with the petitioner/A.2 is his third marriage.
He would also submit that in the light of the Andhra Pradesh State
Amendment to Section 494 IPC, it is a cognizable offence. To justify that
the bar under Section 198 Cr.P.C. is not applicable in the present case,
learned counsel would submit that a bare perusal of the FIR would show
that after taking permission of the Court only, the case is registered and
investigated into.

6. Learned counsel for the petitioner placed reliance on a decision of a

Co-ordinate Bench of the High Court for the State of Telangana in
Shaheed Naaz v. State of Telangana.2 The relevant paragraph -11 is
extracted hereunder:

2 2023 SCC OnLine TS 3536

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“11. As per the contents of Section 494 of IPC, it is evident that it attracts to a
person who has married during the life time of wife or husband. Therefore, the
said offence attracts only to Accused No.1 and not to the second wife or her
family members. Further, the contents of complaint do not attract the
petitioners/accused Nos.2 to 4 for the alleged offence under Section 498-A IPC.
Therefore, this Court is of the considered opinion that it is a mere abuse of
process of law for being tried the petitioners/accused Nos.2 to 4 before the trial
Court and the proceedings against the petitioners are liable to be quashed.”

(Emphasis supplied)

7. Reliance was also placed on the decision in Padmanabham Mamidi

v. State of Telangana and Ors.3 Relevant paragraph-5 is extracted
hereunder:

“ 5. To attract an offence under Section 494 of IPC, a husband or wife while

living, marries another when such marriage would be void by the reason of its
taking place during life of such spouse, is punishable. In the present case, it is
not the case of the police that this petitioner was already married by the time he
married A1 on 12.08.2018. A person who is single marrying another whose
marriage is subsisting is not liable under Section 494 of IPC, but the person
whose marriage is subsisting would be liable. Even accepting that A1’s
marriage was subsisting, the offence under Section 494 of IPC is not made out
against the petitioner herein.”

(Emphasis supplied)

8. At this juncture, learned counsel for the Respondent No.2 would

submit that the petitioner having knowledge that it is third marriage to A.1
married him and thereby abetted him for commission of the act of bigamy.
This argument of the learned counsel cannot be of any help in the
present proceedings as the quash petition before this Court is in
connection to the offence punishable under Section 494 I.P.C. Moreover,

3 . 2023 (1) ALD (Crl.) 981

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neither the complaint nor the charge sheet contains averments as to such
abetment.

9. A bare perusal of the Section 494 makes it clear that its opening
wordsindicate“whoever,having a husband or wife living”commitsbigamy
as provided therein, and in the later half to fix liability states “such
husband or wife”, expressing the intention of the Legislature to prosecute
the erring husband/wife, as the case maybe. This Court agrees with the
interpretation given in similar circumstances in Shaheed Naaz (supra)
and Padmanabham Mamidi (supra) and would also find it relevant to refer
the ruling of the High Court of Karnataka in Smt. Revathi v. Smt.
Netravathi4 , wherein a quashment prayer was made by a second wife,
pursuant to a complaint under Section 494. At para 8, the High Court held
thus:

“8. A perusal of the above, indicates beyond doubt that a person who can
be prosecuted under Section 494 of IPC is the erring husband
or wife who marries again during the lifetime of his or her spouse and
during the subsistence of the marriage. The petitioner herein who was
arrayed as accused No. 2 on the ground that she was the second wife of
accused No. 1 could certainly not be prosecuted for an offence under
Section 494 of IPC. In that view of the matter, the criminal prosecution
initiated against the petitioner/accused No. 2 cannot be continued as that
would result in an abuse of the process of law.”

(Emphasis supplied)

10. In that view of the matter and in the light of the aforesaid legal
position and the factual circumstances, the petitioner herein who is the
second wife of Accused No.1 cannot be prosecuted for the offence under
Section 494 as it would amount to abuse of process of law.

4 2023:KHC:28037
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11.In result, the Criminal Petition is allowed quashing the proceedings

against the Petitioner/Accused No.2 in C.C.No.66 of 2020 on the file of
the Court of Judicial Magistrate of First Class, Nandyal.

As a sequel, pending applications, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 13 : 2024:APHC:891
Inaganti Gandhi,
Vs.
Mullapati Malkondaiah,
(Criminal Petition 3048 of .2023)
08 January 2024
Ms Justice B S Bhanumathi

Issue for Consideration

Whether the appellate Court is right in directing the petitioner to deposit

the compensation amount under Section 148 of Negotiable Instruments Act,
1881 as ordered by the trial Court, without giving reasons as to why in spite
of order of stay granted by High Court was in force and the same is yet to
decided?

Headnotes

The Negotiable Instruments Act, 1881– Judgment passed by trial Court

convicting the accused under Section 138 of the Negotiable Instruments Act,
1881 during pendency of stay granted by High Court – Appeal Preferred –
Appellate Court suspended the operation of the sentence alone subject to
the condition of depositing of 20% of the compensation amount under
Section 148 of the Negotiable Instruments Act, 1881 - Appeal preferred.

Held: A perusal of section 148(1) indicates that it is discretion of a court in

Appeal to direct deposit of the amount since the word ‘may’ is used before
the words “Order the Appellant to deposit” and it is only if it decides to direct
deposit of the amount, it is mandatory to direct 20 percent of the
compensation amount.

Appellate Court is expected to give reasons as to why in spite of order

of stay granted by High Court was in force and the same is yet to be decided
– Merely by referring to Section 148 (1) of the Negotiable Instruments Act,
1881directed the petitioner to deposit 20% of compensation amount ordered
by the Trial Court - Impugned order set aside – Appellate Court is directed to
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[2024] 1 A.P.L.R. 14

dispose of the petition afresh. (Para Nos.11 to 14)

Acts

The Negotiable Instruments Act, 1881

Keywords

Pendency of stay; Deposit of amount under Section 148(1) of the Negotiable

InstrumentsAct,1881;discretion,mandatory,Deposit20%ofcompensation
amount.

Case Law/Reference Cited

Seva Singh vs State

Appearances For Parties

For Appellant Sri Narasimha Rao Gudiseva

For Respondents: Sri Ancha Panduranga Rao

Case Arising From

The order passed by IV Additional Sessions Judge, Nellore directing the

petitioner to deposit 20% of the compensation amount under Section 148(1)
of the Negotiable Instruments Act, 1881, since there is a serious dispute
about the legality of the judgment passed by the trial Court while the order of
stay was in force and the same is yet to be decided.

Judgment/Order

This criminal petition under Section 482 CrPC is filed to quash the order,
dated 27.03.2023, passed in Crl.M.P.No.22 of 2023 in Criminal Appeal
No.66 of 2023 on the file of the Court of IV Additional Sessions Judge, at
Nellore.
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2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioner

and Sri Ancha Panduranga Rao, learned counsel for the

st
1 respondent/complainant.

3. The facts leading to filing of the petition, are briefly as follows:

The petitioner is the accused in C.C.No.402 of 2017 on the file of the Court

of II Additional Judicial First Class Magistrate, Nellore, filed by the

st
1 respondent herein under Section 138 of the Negotiable Instruments Act,

1881. Pending the case, the accused filed petition in Crl.M.P.No.135 of

2022 to send exhibits P1 to P5, cheques, to a handwriting expert for

opinion. The petition was dismissed by order, dated 16.12.2022. Aggrieved

by the order, the accused preferred criminal revision in C.R.P.No.3 of 2023

on the file of the Court of IV Additional Sessions Judge, Nellore. The petition

was dismissed on 20.02.2023.

4. Aggrieved by the said order, criminal petition in Crl. Petition No.1504 of

2023 was filed before this Court. An interim order was passed by this Court

on 27.02.2023 granting stay of all further proceedings including appearance

of the petitioner before the trial Court in C.C.No.402 of 2017 for a period of

eight (8) weeks. According to the petitioner/accused, the said order was

informed to the trial Court and a memo was filed on 01.03.2023 along with

‘online daily status information’ which indicated in column of ‘Short Order’ –

01 Notice stay’. On the said memo, the trial Court passed an order on

01.03.2023 which reads as follows:

“Heard both sides. Perused the record. The matter in C.C.No.402/2017 was
posted for judgment on 25-01-2023, but this Court received official memo on
24-01-2023 from the Hon’ble IV Additional District & Sessions Court, Nellore
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asked entire record in Crl.M.P.No.135/2022 in this case. Hence, this Court not
pronounced judgment and posted time to time. Finally, this Court received
record on 27-02-2023 and posted today for judgment as the matter is of 2017.
On perusing the memo filed by the petitioner/accused that he preferred revision,
but no stay granted by Hon’ble High Court of A.P., hence this Court felt that it is
not necessary to stop the proceedings and inclined to go further. Accordingly,
the memo is closed/ answered in the interest of justice.”

5. In spite of information regarding the stay granted by this Court, the trial

Court pronounced the judgment on 01.03.2023 by convicting the petitioner.

Hence, the accused preferred an appeal, vide Criminal Appeal No.66 of

2023 along with which he also filed Crl.M.P.No.22 of 2023 seeking to

suspend the operation of the sentence imposed in C.C.No.402 of 2017. The

appellate Court, vide order dated 27.03.2023, suspended the operation of

the sentence alone subject to condition of depositing 20% of Rs.70,00,000/-

on or before 27.04.2023.

6. Aggrieved by the condition to deposit 20% of the amount, the

petitioner/accused filed this petition contending that the said condition is

onerous and it ought not to have been ordered.

7. The learned counsel for the petitioner submitted mainly that the

condition to deposit is not mandatory and is discretionary as can be seen

from the language of Section 148 of the Negotiable Instruments Act and it is

only if the Court decides to impose such condition, the minimum amount to

be ordered for deposit is 20%, but the appellate Court failed to exercise its

discretion in the light of the facts and circumstances in this case, because

the judgment of the trial Court is unsustainable in view of the order of stay

granted by this Court Negotiable Instruments Act and it is only if the Court
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decides to impose such condition, the minimum amount to be ordered for deposit
is 20%, but the appellate Court failed to exercise its discretion in the light of the

facts and circumstances in this case, because the judgment of the trial Court is
unsustainable in view of the order of stay granted by this Court..

st
8. On the other hand, the learned counsel for the 1 respondent submitted

that a judgment passed in the absence of communication of the order of stay

1
is valid and placed reliance on the decision in Seva Singh Vs. State . He

further submitted that there is no communication of order of stay in the

present case as is evident from the order on the memo and therefore, the

appellate Court is not in error in directing to deposit 20% of the

compensation amount.

9. Since this petition is against the order directing deposit of the amount

by exercising jurisdiction under Section 148 of the Negotiable Instruments

Act, this Court is not inclined to examine the prayer whether the judgment

passed by the trial Court is legal or not.

10. Section 148 of the Negotiable Instruments Act, 1881 reads as under:

“148. Power of Appellate Court to order payment pending appeal against

conviction.---(1) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction
under Section 138, the Appellate Court may order the appellant to deposit such
sum which shall be a minimum of twenty percent of the fine or compensation
awarded by the trial Court.

Provided that the amount payable under this sub-section shall be in addition to
any interim compensation paid by the appellant under Section 143A.

(2) The amount referred to in sub-section (1) shall be deposited within sixty
days from the date of the order, or within such further period not exceeding

1 [1953] THE INDIAN LAW REPORTS 206

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thirty days as may be directed by the Court on sufficient case being shown by
the appellant.

(3) The Appellate Court may direct the release of the amount deposited by
the appellant to the complainant at any time during the pendency of the appeal.

Provided that if the appellant is acquitted, the Court shall direct the
complainant to repay to the appellant the amount so released, with interest at
the bank rate as published by the Reserve Bank of India, prevalent at the
beginning of the relevant financial year, within sixty days from the date of the
order, or within such further period not exceeding thirty days as may be directed
by the Court on sufficient cause being shown by the complainant.”

11. A perusal of the above provision in Section 148(1) indicates that it is

the discretion of a Court in appeal to direct deposit of the amount since the

word ‘may’ is used before the words ‘order the appellant to deposit’ and it is

only if it decides to direct deposit of the amount, it is mandatory to direct

20% of the compensation amount. Whenever a court exercises discretion,

reasons for the decision taken shall be recorded. Therefore, before passing

any order under Section 148 of the Negotiable Instruments Act, the appellate

Court is required to indicate the reasons for exercise of its discretion.

12. In the present case, since there is a serious dispute about the legality

of the judgment passed by the trial Court while the order of stay was in force

and the same is yet to be decided, the appellate Court is expected to give

reasons as to why in spite of such ground taken in appeal, it is required to

deposit the amount under Section 148 of the Act. But, the appellate Court in

its brief order, merely by referring to Section 148(1) of the Act, directed the

petitioner to deposit 20% of the compensation amount ordered by the trial

Court. It is pertinent to mention the relevant portion of the order at

 Digital High Court Reports
19

paragraphs No.6 & 7 which are as follows:

“6. In view of Amendment of Negotiable Instruments (Amendment) Act,

2018 (No.20 of 2018), dated 2.8.2018, Negotiable Instruments (Amendment)
Act, 2015 (Act No.26 of 2015) (w.e.f 15.6.2015) under Section 148(1), Appellate
Court has power to order payment pending appeal against conviction, since
section reads “Not withstanding anything contained in the Code of Criminal
Procedure, 1973, in an appeal by the drawer against conviction under Section
138, appellate Court may order appellant to deposit such sum which shall be a
minimum of twenty percent of the fine or compensation awarded by the trial
Court.” Considering the same, sentence alone imposed by trial Court is
suspended.

7. In the result, petition is allowed by suspending the operation of sentence

alone till disposal of the main appeal as imposed by the trial Court subject to
deposit of 20% of the compensation amount into trial Court i.e.,20% out of
Rs.70,00,000/- on or before 27-04-2023. Failing which, the appellate Court will
proceed as per law. “

13. Therefore, it is apparent that the appellate Court has failed to give

reasons in support of its order and probably under the impression that it is

mandatory to direct deposit of amount, passed the impugned order. Time

and again, the Constitutional courts held that giving reasons is the backbone

of an order for its sustenance. Yet, there are many instances where Courts

fail to record reasons making the order under challenge vulnerable for

interference.

14. As such, for the above reasons, the impugned order needs to be set

aside directing the appellate Court to dispose of the petition afresh.

15. In the result, the Criminal Petition is allowed. The order, dated

27.03.2023, passed in Crl.M.P.No.22 of 2023 in Criminal Appeal No.66 of

 Digital High Court Reports
20

2023 is set aside and the appellate Court is directed to dispose of the

petition afresh giving reasons.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 21 : 2024:APHC:6146
Challa Jaya Shankar Reddy
Vs.
The State of Andhra Pradesh,
(Criminal Petition 4041 of .2020)
08 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether the present case discloses there is a double registration by

Petitioner/Accused No.1 and the offence of cheating is constituted or not?

Headnotes

Sections 419, 420 read with 34 of the Indian Penal Code, 1860 – Petitioner /
Accused No.1 along with others borrowed a sum of Rs.10,00,000/- from the
Respondent No.2 by mortgaging a plot and failed to reply the same –
Petitioner came up for settlement and executed a sale deed in favour of
Respondent No.2 – Subsequently, he came to know that it was already sold
to another person – Allegation of impersonation and creation of sale deed by
altering the Survey Number – Report lodged against Accused.

Held: This is not a case of double registration by Petitioner/Accused No.1. It

is a case where the petitioner sold away the property he purchased –
Mentioning of the same survey number in three link documents is not a case
of cheating – Complaint discloses that dispute is purely civil in nature, which
has been given colour of a criminal offence to wreak vengeance against the
Petitioner/Accused and it does not mean the strict standard of proof to
sustain the accusation. It is a cardinal principle that when the complaint
allegations essentially disclose a civil dispute and not a criminal offence, the
continuation of the criminal proceedings would amount to abuse of process
of the Court - Petition allowed. (Para Nos.10,11,13)

Acts

Indian Penal Code, 1860; Criminal Procedure Code, 1973.

 Digital High Court Reports
[2024] 1 A.P.L.R. 22

Keywords

Civil dispute; Colour of a criminal offence; Cheating; Double registration by

impersonation; Quashing of Criminal Proceedings.

Case Law/Reference Cited

State of Haryana & other vs Bhajanlal & Others, Niharika Infrastructure Pvt Ltd vs State
of Maharashtra & Others, Paramjeet Batra vs State of Uttarakhand & Others

Appearances For Parties

For Appellant: Sri J.Janaki Rami Reddy

For Respondent No 1: Assistant Public Prosecutor

Case Arising From

Petitioner/Accused No.1 is seeking quash of proceedings in Crime No.287 of

2019 on the file of Kurnool III Town Police Station, Kurnool for the offence
punishable under Sections 419 and 420 read with 34 of the Indian Penal
Code, 1860.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

1
1973 has been filed, by the petitioner/Accused No.1, seeking
quashment of proceedings against him in Crime No.287 of 2019, on the
file of Kurnool III Town Police Station, Kurnool, which was registered for
the offence punishable under Sections 419 and 420 read with 34 of the

1 in short 'Cr.P.C'
 Digital High Court Reports
23

Indian Penal Code2 .

2. The facts which led to the filing of this petition are;

a. Respondent No.2 lodged the present complaint alleging that the

petitioner/Accused No.1 along with others borrowed a sum of
Rs.10,00,000/- from him by mortgaging Plot No.247 in Sy.No.138/1 of
Kurnool Town and executed a registered Mortgage Deed on 13.12.2012
and thereafter failed to repay the same. The petitioner came up for a
settlement and offered to sell the said property and executed a registered
Sale Deed in favour of Respondent No.2 on 15.09.2016. That being so,
on 30.03.2018, Respondent No.2 went to the plot and came to know that
it was already sold to one K.Somanna and the petitioner with the help of
his henchmen by impersonation created the sale deed by altering the
survey number. Respondent No.2 lodged a report against Accused
Nos.1 and 2, based on which the present crime was registered. The said
crime is sought to be quashed by Petitioners/Accused No.1, vide this
Petition. Hence, the Crl.P.

Arguments Advanced at the Bar

3. Heard Sri J.Janaki Rami Reddy, learned counsel for Petitioner, and
Ms. D.Prasanna Lakshmi, learned Assistant Public Prosecutor
representing the State/Respondent No.1. None represented for
Respondent No.2.

4. Learned counsel for the petitioner would submit that the petitioner

2 In short 'IPC'
 Digital High Court Reports
24

has not committed any offence much less the alleged offence and he was
falsely implicated in the present case. He would further submit that the
petitioner never fabricated or altered the document, as the plot purchased
by the petitioner is in Sy.No.138/1 and the same is sold to Respondent
No.2 and hence, the question of fabrication or cheating does not arise.
He would submit that the issue involved is purely civil in nature and
Respondent No.2 has to approach the competent civil Court. Hence,
prayed to quash the proceedings against the petitioner.

5. Refuting the arguments referred to above, learned Assistant Public

Prosecutor would submit that there are no grounds to quash the case
against petitioner/Accused No.1. She would submit that the allegations
made against the petitioner in the complaint would squarely attract the
offence under Sections 419 and 420 read with 34 of the I.P.C and
therefore, the criminal proceedings should not be quashed against
petitioner.

Point for Determination

6. Having heard the submissions made by the learned counsels and

on perusal of the material available on record, the point for determination
that arises in this case is as follows;

Whether the proceedings against the Petitioner/A.1 in Crime No.287 of

2019 on the file of Kurnool III Town Police Station, Kurnool are liable to
be quashed by exercising jurisdiction under Section 482 of the Cr.P.C.?

Determination by the Court

 Digital High Court Reports
25

7. A bare perusal of Section 482 makes it clear that the Code

envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect to
any order under the Code or, (ii) to prevent abuse of the process of any
Court or, otherwise (iii) to secure ends of justice. A court while sitting in
Section 482 jurisdiction is not functioning as a court of appeal or a court
of revision. It must exercise its powers to do real and substantial justice,
depending on the facts and circumstances of the case. These powers
must be invoked for compelling reasons of abuse of process of law or
glaring injustice, which are against sound principles of criminal
jurisprudence. Specific circumstances warranting invocation of powers
under Section 482 have been strongly emphasized in a catena of
decisions. To cite a few, State of Haryana & others v. Bhajanlal &
others3 at paras 102 and 103, Neeharika Infrastructure Pvt. Ltd. v. State
of Maharashtra & others,4 at para 57.

8. In Paramjeet Batra v. State of Uttarakhand and others5 , the

Hon’ble Apex Court at Para No.12 held as follows:

“12. While exercising its jurisdiction under Section 482 of the Code the High
Court has to be cautious. This power is to be used sparingly and only for the
purpose of preventing abuse of the process of any court or otherwise to secure
ends of justice. Whether a complaint discloses a criminal offence or not
depends upon the nature of facts alleged therein. Whether essential ingredients
of criminal offence are present or not has to be judged by the High Court. A
complaint disclosing civil transactions may also have a criminal texture. But the
High Court must see whether a dispute which is essentially of a civil nature is
given a cloak of criminal offence. In such a situation, if a civil remedy is
available and is, in fact, adopted as has happened in this case, the High Court
should not hesitate to quash the criminal proceedings to prevent abuse of
process of the court.”

(emphasis supplied)

3 1992 Supp. (1) SCC

4 (2020) 10 SCC 180
5 (2013) 11 SCC 673
 Digital High Court Reports
26

9. At this juncture, it is relevant to extract Section 415 IPC which

reads as follows:

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”.

10. As can be seen from the record, the petitioner filed three link
documents i.e., (1) Registered sale deed dated 15.09.2016 executed by
the petitioner in favour of Chinta Ravi, (2) Registered sale deed dated
18.11.2011 executed by Accused No.2 in favour of the petitioner and (3)
Registered sale deed dated 03.08.2011 executed by one Chinthamani
Indira in favour of Accused No.2. In all the three documents, the same
schedule was mentioned as follows:

SCHEDULE

Plot No.247 in Sy.No.138/1 bearing L.P.No.495/82 situated at

JoharapuramVillageextensionare(KurnoolCity87Ward)VasaviNagar,
bounded by:

East : Plot No.253

 Digital High Court Reports
27

West : 33 feet road

North : Plot No.246

South : Plot No.248

11. A perusal of the complaint in the present case discloses that this is
not a case of double registration by Petitioner/Accused No.1. It is a case
where the petitioner sold away the property that he purchased. In the
light of the fact that the same survey number is mentioned in the
documents referred to supra, it is not a case of cheating. The Petitioner
sold what he purchased and the vendor of the petitioner also sold what
he purchased, to the petitioner i.e., Plot No.247 in Sy.No.138/1.

12. A bare reading of the complaint would show that the petitioner
deliberately wrongly mentioned the survey number as 138/1, which is
false on the face of it. When the original sale deed through which the
petitioner purchased the property stands in his name, the question of
impersonation does not arise. There is no iota of material to show that
the petitioner has fabricated or forged the signature of somebody on any
documents. The complaint does not reveal any allegation that the
petitioner before selling the property to the complainant, sold away the
same to another person and in that case, there is some force in the
complaint.

13.Further, the contents of the complaint would disclose that the issue
involved is purely of civil nature. In that view, even if the complaint
 Digital High Court Reports
28

allegations are taken into consideration as true and correct, one cannot
conclude prima facie that the petitioner/Accused No.1 has committed the
offence. It is a purely civil dispute which has been given colour of a
criminaloffencetowreakvengeanceagainstthepetitioner/accusedandit
does not mean the strict standard of proof to sustain the accusation. It is
a cardinal principle that when the complaint allegations essentially
disclose a civil dispute and not a criminal offence, the continuation of the
criminal proceedings, would amount to abuse of process of the Court.

14.Therefore, in view of the guideline No.1 in Bhajanlal’s case (supra),

the allegations made in the complaint do not disclose the commission of
any offence and make out a case against the petitioner/Accused No.1, as
such, the criminal proceedings initiated against petitioner are liable to be
quashed. This Court finds that there are justifiable grounds to exercise its
jurisdiction under Section 482 Cr.P.C. As the very ingredients of the
offending Section are not attracted, the proceedings initiated against the
petitioner/Accused No.1 are untenable and are liable to be quashed.

15. In the result, the Criminal Petition is allowed. The proceedings

against Petitioner/Accused No. 1 in Crime No.287 of 2019, on the file of
Kurnool III Town Police Station, Kurnool, for the offence punishable under
Sections 419 and 420 read with 34 I.P.C., are hereby quashed.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

 Digital High Court Reports
29

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 30 : 2024:APHC:6147
Kancharla Venkata Ramana @ Venkata Rao
Vs.
The State of Andhra Pradesh
(Criminal Petition 2974 of .2021)
08 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether there are any justifiable grounds for quashment of

proceedings against the petitioners for the offence punishable under
Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act
1961.

Headnotes

Section 498-A of Indian Penal Code – Marriage between petitioner

no.1 and respondent no.2 took place on 06.11.2004, since 25.05.2008
respondent no.2 living in her parental home by leaving the matrimonial
home – Petitioner No.1 filed petition seeking restitution of conjugal
rights – decree was granted directing the respondent no.2 to join with
her husband, she did not do so. Petitioner no.1 filed petition on
15.09.2020 seeking divorce and was granted divorce on 15.03.2023.
Meanwhile after receiving notice in divorce petition, present case filed.

Held: The uncontroverted allegations made in the complaint do not

prima facie make out a case against the petitioners. It appears that
the present complaint is filed as a counter blast to the divorce petition
filed by petitioner no.1/accused no.1.- Criminal Petition allowed (Paras
10,11)

Acts

Indian Penal Code, Dowry Prohibition Act,1961

 Digital High Court Reports
[2024] 1 A.P.L.R. 31

Keywords

Leaving matrimonial home, a decree of restitution of conjugal rights,

pivotal allegation, prima facie, Counter blast to divorce petition, abuse
of process of the court, quashing of criminal proceedings.

Case Law/Reference Cited

State of Haryana and others vsBhajanlal and others, Abhishekvs State of Madhya
Pradesh, K.Subbarao and others vs State of Telangana and others

Appearances For Parties

For Appellant: Sri K.Chidambaram

For Respondents: Assistant Public Prosecutor

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has

been filed by the petitioners/accused nos.1 to 7, seeking quashment of
proceedings against them in Crime.No.125 of 2021, on the file of
Korukonda Police Station, Rajahmundry Urban registered for the
offences punishable under Section 498-A of the Indian Penal Code
and Sections 3 and 4 of the Dowry Prohibition Act.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed by the petitioners/Accused Nos.1 to 7, seeking
quashment of proceedings against them in Crime No.125 of 2021, on the
file of Korukonda Police Station, Rajahmundry Urban registered for the
offences punishable under Section 498-A of the Indian Penal Code2 and

1 for short 'Cr.P.C'

2 for short 'IPC'
 Digital High Court Reports
32

Sections 3 and 4 of the Dowry Prohibition Act3 .

2. The facts which led to the filing of this petition are:

a. The marriage of Respondent No.2 was performed with Petitioner

No.1/Accused No.1 on 06.11.2004. At the time of marriage, on demand
of the mother-in-law of Respondent No.2, an amount of Rs.5 lakhs and
two sovereigns of gold were given towards dowry. After some period, all
the accused started harassing Respondent No.2 demanding additional
dowry. Petitioner No.1/ Accused No.1 at the instigation of his sisters i.e.,
Petitioners 2 to 7/Accused Nos.2 to 7 used to harass her to bring
additionaldowry.Unabletobearwiththeirharassment,RespondentNo.2
went to her parental home. Though the matter was placed before elders
for compromise, they did not heed to their words. Hence, Respondent
No.2 lodged a complaint with Korukonda Police which was registered as
a case in Crime No.125 of 2021.

b. The present petition is filed to quash the proceedings in the above

crime against the petitioners.

3. Heard Sri K.Chidambaram, learned counsel for the petitioners and

Ms.D.Prasanna Lakshmi learned Assistant Public Prosecutor for State.
None represented for Respondent No.2.

4. Learned counsel for the petitioners would submit that the present

3 for short 'the Act'

 Digital High Court Reports
33

complaint was filed with a mala fide intention by suppressing the facts, to
harass the petitioners. It is submitted that the Respondent No.2 willfully
left the matrimonial home and has been living at her parental home. He
would also submit that as Petitioner No.1/Accused No.1 refused to join
her as illatum son-in-law, the present complaint was filed. It is further
submitted that the marriages of Petitioner Nos., 2 to 7 were already
performed and they have been living with their families and they never
lived along with the Petitioner No.1 and Respondent No.2. He would
finally submit that the allegations in the complaint are vague and do not
disclose the alleged offence and hence he prays this Court to quash the
proceedings against the petitioners.

5. Per contra, learned Assistant Public Prosecutor vehemently

opposed the criminal petition. She would submit that there is no merit in
the contention of the Petitioners/Accused Nos.,1 to 7 that there are no
allegations against them about the commission of the offence. Therefore,
she would pray to dismiss the criminal petition.

Point for Determination

6. Having heard the submissions of the learned counsel representing

both the parties, now the point that would emerge for determination is:

Whether there are any justifiable grounds for quashment of proceedings

in Crime No.125 of 2021 against the petitioners for the offence
punishable under Section 498-A IPC and Sections 3 and 4 of the Dowry
Prohibition Act?

Determination by the Court

 Digital High Court Reports
34

7. Section 482 powers must be invoked for compelling reasons of

abuse of process of law or glaring injustice, which are against sound
principles of criminal jurisprudence. Specific circumstances warranting
the invocation of the provision must be present. The decision rendered by
the Hon’ble Apex Court in State of Haryana and others v. Bhajanlal and
others4 is considered as the guiding torch in the application of Section
482. At paras 102 and 103, the circumstances are spelt out as follows;

“102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of illustration wherein
such power could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such power should be
exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.

(2)Where the allegations in the first information report and other materials, if
any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1) of the
Code except under an order of a Magistrate within the purview of Section
155(2) of the Code.

(3)Where the uncontroverted allegations made in the FIR or complaint and

the evidence collected in support of the same do not disclose the

4 AIR 1992 SC 604

 Digital High Court Reports
35

commission of any offence and make out a case against the accused.

(4)Where, the allegations in the FIR do not constitute a cognizable offence

butconstituteonlyanon-cognizableoffence,noinvestigationispermitted
by a police officer without an order of a Magistrate as contemplated under
Section 155(2) of the Code.

(5) 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.

(6) Where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.

103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases; that the court
will not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR or the
complaint and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or caprice.”

(emphasis supplied)

8. A three-Judge Bench of the Hon’ble Apex Court in Abhishek v.

 Digital High Court Reports
36

State of Madhya Pradesh,5 in the context of a complaint filed by a wife

under Section 498-A IPC and Sections 3 and 4 of the D.P. Act against
her husband, his parents, and his brothers, observed as follows;

“13. Instances of a husband's family members filing a petition to quash

criminal proceedings launched against them by his wife in the
midst of matrimonial disputes are neither a rarity nor of recent origin.
Precedents aplenty abound on this score. We may now take
note of some decisions of particular relevance. Recently, in Kahkashan
Kausar alias Sonam v. State of Bihar [(2022) 6 SCC 599], this Court had
occasion to deal with a similar situation where the High Court had refused
to quash a FIR registered for various offences, including
Section 498A IPC. Noting that the foremost issue that required
determination was whether allegations made against the in-laws were
general omnibus allegations which would be liable to be quashed, this
Court referred to earlier decisions wherein concern was expressed over
the misuse of Section 498A IPC and the increased tendency to implicate
relativesofthehusbandinmatrimonialdisputes.ThisCourtobservedthat
false implications by way of general omnibus allegations made in the
course of matrimonial disputes, if left unchecked, would result in
misuse of the process of law. On the facts of that case, it was found that
no specific allegations were made against the in-laws by the wife and it
was held that allowing their prosecution in the absence of clear
allegations against the in-laws would result in an abuse of the
process of law. It was also noted that a criminal trial, leading to an
eventual acquittal, would inflict severe scars upon the accused and such
an exercise ought to be discouraged.

14. In Preeti Gupta v. State of Jharkhand [(2010) 7 SCC 667], this Court
noted that the tendency to implicate the husband and all his immediate
relations is also not uncommon in complaints filed under
Section 498A IPC. It was observed that the Courts have to be extremely
careful and cautious in dealing with these complaints and must take
pragmatic realities into consideration while dealing with matrimonial
cases, as allegations of harassment by husband's close relations, who
were living in different cities and never visited or rarely visited the place
where the complainant resided, would add an entirely different
complexion and such allegations would have to be scrutinised with great
care and circumspection.

15. Earlier, in Neelu Chopra v. Bharti [(2009) 10 SCC 184], this Court
observed that the mere mention of statutory provisions and the language
thereof, for lodging a complaint, is not the ‘be all and end all’ of the
matter, as what is required to be brought to the notice of the Court is the
particulars of the offence committed by each and every accused and the

5 2023 INSC 779

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37

role played by each and every accused in the commission of that offence.
These observations were made in the context of a matrimonial dispute
involving Section 498A IPC”

(Emphasis supplied)

9. Further, in a decision reported in K. Subbarao & Others v. State of

Telangana and others6 the Hon’ble Apex Court held as follows at Para 6:

“6. Criminal proceedings are not normally interdicted by us at the

interlocutory stage unless there is an abuse of the process of a Court.
This Court, at the same time, does not hesitate to interfere to secure the
ends of justice. (See State of Haryana V. Bhajan Lal.) The Courts should
be careful in proceeding against the distant relatives in crimes pertaining
to matrimonial disputes and dowry deaths. The relatives of the husband
should not be roped in on the basis of omnibus allegations unless specific
instances of their involvement in the crime are made out.”

10.Admittedly, the marriage between Petitioner No.1 and Respondent

No.2 had taken place on 06.11.2004. Respondent No.2 left the
matrimonial home and has been staying at her parental home since
25.05.2008. As such, Petitioner No.1 filed H.M.O.P.No.42 of 2008 on the
file of the Court of Senior Civil Judge, Narsapur for restitution of conjugal
rights. Though a decree was granted in the said O.P directing
Respondent No.2 to join with her husband, she did not do so. Thereafter,
Petitioner No.1 filed H.M.O.P.No.55 of 2020 on the file of the same Court
seeking divorce on 15.09.2020 and subsequently divorce was granted on
15.03.2023. In the meanwhile, after receiving notice in divorce petition,
the present case has been lodged against the petitioners with
allegations.

11.The first guideline issued in Bhajanlal (supra) comes into rescue to

quash a complaint is when allegations even if true, do not prima facie

6 (2018) 14 SCC 452

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38

constitute any offence or make out a case against the accused. In the
instant case, when the complaint allegations are perused, it appears that
there are no pivotal allegations made against the petitioners/A.1 to A.7.
Further, the uncontroverted allegations made in the complaint do not
prima facie disclose the commission of any offence and as such do not
make out a case against the petitioners. It appears that the present
complaint is filed as a counterblast to the divorce petition filed by
Petitioner No.1/Accused No.1. In such circumstances, this Court finds it
just to exercise the inherent powers under Section 482 Cr.P.C to prevent
abuse of the process of the Court. Hence, this Court is of the view that
continuationofcriminalproceedingsagainstpetitioners/AccusedNos.1to
7 is undesirable and the same are liable to be quashed.

12. In the result, the Criminal Petition is allowed. The criminal

proceedings initiated against the petitioners/Accused Nos.1 to 7 in Crime
No.125 of 2021, on the file of Korukonda Police Station, Rajahmundry
Urban registered for the offences punishable under Section 498-A IPC
and Sections 3 and 4 of the Dowry Prohibition Act, are hereby quashed.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 39 : 2024:APHC:5523
HARI SRI LAKSHMI
Vs.
THE STATE OF ANDHRA PRADESH
(Criminal Petition 6796 of .2021)
11 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether any incriminating evidence available to prove the guilt of the

petitioners under Sections 420, 464, 468 & 472 r/w 34 ofIndian Penal Code,
1860 and continuation of the charge sheet and crime against the petitioner,
tenable?

Headnotes

Sections 420, 464, 468, 472 read with 34 of Indian Penal Code, 1860 –
Continuation of crime and charge sheet against accused whether tenable?
Petition filed under Section 482 Criminal Procedure Code, 1973 – Accused
suppressed about their caste before marriage and intentionally and
deliberately cheated the defacto complainant – Allegations of cheating by
fake surname and fabrication of documents.

Held: Court while exercising its jurisdiction under Section 482 of Criminal
Procedure Code, 1973 cannot conduct a mini trial. On perusal of record, no
material is placed to show the involvement of Accused No.3 in the
commission of the offence – Criminal Petition is partly allowed quashing the
proceedings against Petitioner No.3/Accused No.3 and the petition filed by
Petitioners Nos.1 and2/ Accused Nos.1 and 2 is dismissed. (Para 17)

Acts

Indian Penal Code, 1860; Criminal Procedure Code, 1973

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Keywords

False surname; Cheating; Mini Trial; Quashing of Criminal Proceedings.

Case Law/Reference Cited

Konala Bhavanivs State of Andhra Pradesh, Madhava Rao Jivaji Rao Scindia vs
Sambhajirao Chandrojirao Angre, Mohammad Wajid v State of UP, State of Haryana vs
Bhajanlal, L.H.V.Prasad & Others vs S.H.O Alwal Police Station & Others, G.V.Rao vs.
L.H.V.Prasad, Arasmeta Captine Power Co(P) Ltd vs Lafarge India (P) Ltd

Appearances For Parties

For Appellant: Sri Kalepu Yashwanth

For Respondents: Ms.D.Prasanna Lakshmi, Learned Assistant Public

Prosecutor – R.1, Ms.P.Saraswathi – R.2

Case Arising From

Seeking quash of Criminal proceedings against Accused Nos.1 to 3 in

CC.No578 of 2021 on the file of the Court of Additional Judicial Magistrate of
First Class, Amalapuram, East Godavari District for the offences punishable
under Sections 420, 464, 468 and 472 read with 34 of Indian Penal Code,
1860.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed by the petitioners/Accused Nos.1 to 3, seeking
quashment of proceedings against them in C.C.No.578 of 2021 on the file
of the Court of Additional Judicial Magistrate of First Class, Amalapuram,
East Godavari District, for the offences punishable under Sections 420,
464, 468 and 472 read with 34 of the Indian Penal Code2 .

1 for short 'Cr.P.C'

2 for short 'I.P.C.'
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2. Brief facts of the case, as projected by the de-facto complainant;

a. Accused No.1 is the mother-in-law and Accused No.2 is the wife of

de facto complainant/husband. A.3 is the daughter of A.1. A.4 is the
brother of A.1. A.5 is the sister-in-law of A.1. A.6 to A.8 are the relatives
of A.1. Marriage of the de facto complainant with A.2 was performed on
13.12.2014 at Annavaram, as per Hindu rites and customs. The couple
was blessed with a male child.

b. It is averred that A.2 gave de facto complainant, the first shock in

their matrimonial life, by revealing that she was in relationship with a
person while she was staying at Visakhapatnam, prior to the marriage.
Without giving much weight to the same, the de-facto complainant
continued the matrimonial life.

c. It is further stated that the de facto complainant got second shock

when he came to know from the reliable sources and also from the death
certificate of A.2’s father that their surname is ‘Seeram’ instead of
‘Srirambhotla’. His marriage with A.2 was performed with false surname
as ‘Srirambhotla’, along with false caste name. It is his case that the
Accused suppressed about their caste before the marriage and
intentionally and deliberately cheated the de facto complainant.

d. It is further stated that, when confronted, A.2 abused him in filthy

language and left the matrimonial home on 10.05.2018 threatening that
she would make the complainant’s life drastic. It is stated that thereafter
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she lodged a false complaint against the de facto complainant for offence
under Section 498-A r/w 34 I.P.C. and Sections 3 and 4 of the Dowry
Prohibition Act, 1961 by dragging his parents, brother and tried her level
best to torture the family of the de facto complainant.

e. Complainant approached Amalapuram Town Police on 06.07.2018

to give compliant. Father of A.2 was a government employee, who died
while in service. His death certificate was registered on 23.10.1998. The
Inspector of Police called A.1 and A.2 to the Police Station to enquire
about the same. It is further stated that on 26.07.2018, A.1 and A.2
approachedtheAmalapuramPoliceStationandshoweddeathcertificate
showing the name as “Srirambhotla Apparao” instead of “Seeram
Apparao”. The earlier death certificate obtained from Mee Seva showed
the name as “SeeramApparao”. The de facto complainant has obtained
the acknowledgment of his complaint with receipt No.627/18.

f. It is further stated that the de facto complainant approached the

District Collector, East Godavari and filed a complaint regarding the
change of death certificate of his father-in-law after 20 years. On enquiry,
an endorsement was issued by the Additional Commissioner-cum-
Municipal Birth and Death Registrar, Kakinada that the death certificate of
Seeram Apparao as Srirambhotla Apparao, was changed pursuant to
receiving an application from A-1.

g. It is further stated that, in order to manipulate the evidence, A.1 has

created a fake voter I.D card with the help of photoshop and created false
surname of her husband as Srirambhotla and approached Mee Seva
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Centre with a fake Voter I.D card, along with notarized affidavit and made
an application for change of surname of her husband as Srirambhotla.
The de facto complainant also stated that, believing the said documents
as genuine, the Municipal Authorities have changed the surname as
Srirambhotla without any enquiry.

h. On 23.08.2018 the de facto complainant has presented a complaint

to the Superintendent of Police, Kakinada, but no action was taken. He
made a complaint before the Chief Electoral Officer, Andhra Pradesh for
creating a forged Voter I.D., who ordered the District Collector to make a
detailed enquiry.

i. It is further stated that the de facto complainant has presented a

complaint to the Director of Municipal Administration, Andhra Pradesh for
changing the death certificate of his father-in-law with a forged and
tampered document by A.1. They have ordered the Municipal
Commissioner, Kakinada to make a detailed enquiry. A.1 and A.2 joined
hands with A.3 to A.8 and deceived the de facto complainant fraudulently
resulted in irreparable harm to him.Based on the private complaint lodged
by the de facto complainant, a case in C.C.No.578 of 2021 was
registered against Accused Nos.1 to 8.

j. The proceedings in the said C.C are sought to be quashed by

Petitioners/A.1 to A.3, vide this Petition. Hence, the Crl.P.

Grounds Sought for Quashment

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3. Broadly the following grounds were taken seeking quashment;

a. Perusal of entire charge sheet and the statements of the witnesses do not
disclose any material proving the allegations against the Petitioner.In
view of no incriminating evidence available to prove the guilt of the
petitioners, continuation of the charge sheet and the crime against the
petitioners is, therefore, untenable.

b. Petitioners have no intention to commit cheating. The petitioners

disclosed all the facts about their caste prior to the marriage, and de
facto complainant and his family members are very much aware of the
said facts.

c. The allegations made against the petitioners, on merits, are incorrect and
untrue.The de facto complainant by making omnibus allegations, roped
all the petitioners even though there are no specific allegations. The
present complaint has been filed with an oblique motive and malicious
intention by making concocted, misconceived, frivolous and vexatious
allegations to harass and coerce the petitioners.

d. The Police registered present compliant without verifying the averments

and allegations made in the compliant and that FIR does not constitute
prima facie case attracting any penal offences against the petitioners for
the alleged offences.

e.The de facto complainant having failed to succeed in their illegal attempts,

have resorted to filing the present false complaint based on concocted
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and false allegations.

Arguments Advanced at the Bar

4. Heard Sri Kalepu Yashwanth, learned counsel for Petitioners,

Ms.D.Prasanna Lakshmi, learned Assistant Public Prosecutor
representing the State/Respondent No.1 and Ms.P.Saraswathi, learned
counsel for Respondent No.2.

5. Learned counsel for the petitioners, in elaboration to what was

stated in the Petition, would submit that there is no incriminating material
against the petitioners for continuation of criminal proceedings. He would
further submit that the present complaint has been filed based on the
omnibus allegations only to harass and coerce the petitioners and for
accepting the conditions and demands of the de facto complainant. He
woud further submit that, no prima facie case is made out against the
petitioners, as such, continuation of criminal proceedings against the
petitioners would be an abuse of process of law. Hence, prayed to quash
the proceedings against the petitioners.

6. Learned Assistant Public Prosecutor and the learned counsel for

Respondent No.2, in unison, would submit that, there are no grounds to
quash the case against petitioners. It is submitted that the allegations
made against the petitioners in the complaint would squarely attract the
offences alleged against the petitioners and therefore, the criminal
proceedings should not be quashed against petitioners. Hence, prayed
to dismiss the petition.
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Point for Determination

7. Having heard the submissions of the learned counsel representing

both the parties, now the point that would emerge for determination is:

Whether there are any justifiable grounds for quashment of the

proceedings in C.C.No.578 of 2021 against the petitioners for the offence
punishable under Sections420, 464, 468 and 472 read with 34 I.P.C?

8. This Court while summarizing the position of law concerning

exercise of Section 482 jurisdiction in Konala Bhavani v. State of A.P.,3
held thus;

“10. Further, Section 482 of Cr. P.C. makes it clear that the Code
envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect to
any order under the Code or, (ii) to prevent abuse of the process of any
Court or, otherwise (iii) to secure ends of justice.

11. Section 482 is are to be exercised ex debito justitiae, i.e., to do real

and substantial justice. These powers must be invoked for compelling
reasons of abuse of process of law or glaring injustice, which are against
sound principles of criminal jurisprudence. Specific circumstances
warranting invocation of powers under Section 482 have been strongly
emphasized in a catena of decisions, viz., State of
Haryana v. Bhajanlal at paras 102 and 103, Neeharika Infrastructure Pvt.
Ltd. v. State of Maharashtra, at para 57, etc.”

9. Judicial conscience of the court should permit it to quash the

criminal proceedings while exercising jurisdiction under Section 482 of
Cr.P.C.A three-Judge Bench of the Hon'ble Apex Court in Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre4 held as follows;

3 2023 SCC OnLine AP 3605

4 (1988) 1 SCC 692
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“The legal position is well settled that when a prosecution at the initial
stage is asked to be quashed, the test to be applied by the court is as to
whether the uncontroverted allegations as made prima facie establish the
offence. It is also for the court to take into consideration any special
features which appear in a particular case to consider whether it is
expedient and in the interest of justice to permit a prosecution to
continue. This is so on the basis that the court cannot be utilised for any
oblique purpose and where in the opinion of the court chances of an
ultimate conviction are bleak and, therefore, no useful purpose is likely to
be served by allowing a criminal prosecution to continue, the court may
while taking into consideration the special facts of a case also quash the
proceeding even though it may be at a preliminary stage.”

(emphasis supplied)

10. In Mohammad Wajid v. State of U.P.,5 the Hon'ble Apex Court

while reiterating the position laid down in State of Haryana v.
Bhajanlal,6 made a comprehensive analysis on the application of the
Section. The Apex Court stressed on the necessity to arrive at a balance
between the law enforcement power of the State and the protection of
citizens from unjust criminal proceedings. It was observed that the right
not to be disturbed without sufficient grounds is one of the mandates
under Art 21 of the Constitution of India. In relation to quashing of F.I.R.
and the material that is to be looked into, it was held as follows;

“34. At this stage, we would like to observe something important.

Whenever an accused comes before the Court invoking either the
inherent powers under Section 482 of the Code of Criminal Procedure
(CrPC) or extraordinary jurisdiction under Article 226 of the Constitution
to get the FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking vengeance, then in such
circumstances the Court owes a duty to look into the FIR with care and a

5 2023 (1) INSC 683

6 1992 Supp. (1) SCC
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little more closely. We say so because once the complainant decides to

proceedagainsttheaccusedwithanulteriormotiveforwreakingpersonal
vengeance, etc., then he would ensure that the FIR/complaint is very well
drafted with all the necessary pleadings. The complainant would ensure
that the averments made in the FIR/complaint are such that they disclose
the necessary ingredients to constitute the alleged offence. Therefore, it
will not be just enough for the Court to look into the averments made in
the FIR/complaint alone for the purpose of ascertaining whether the
necessary ingredients to constitute the alleged offence are disclosed or
not. In frivolous or vexatious proceedings, the Court owes a duty to look
into many other attending circumstances emerging from the record of the
case over and above the averments and, if need be, with due care and
circumspection try to read in between the lines. The Court while
exercising its jurisdiction under Section 482 of the Cr. P.C. or Article 226
of the Constitution need not restrict itself only to the stage of a case but is
empowered to take into account the overall circumstances leading to the
initiation/registration of the case as well as the materials collected in the
course of investigation. Take for instance the case on hand. Multiple FIRs
have been registered over a period of time. It is in the background of such
circumstances the registration of multiple FIRs assumes importance,
thereby attracting the issue of wreaking vengeance out of private or
personal grudge as alleged.”

(emphasis supplied)

11. With the judicial precedents discussed in mind, it is necessary to

analyze the instant case. In crux, the complaint of the husband/ de-facto
complainant is that, his wife’s caste and surname were manipulated with
false details and the death certificate of her father was manipulated to
change these details, by creation of fake voter I.D. To buttress their
contention that in these circumstances, criminal proceedings cannot be
continued against the Petitioners, they placed reliance on the decision
rendered in L.H.V.Prasad and others v. S.H.O., Alwal P.S., and others7 .

7 1999 SCC OnLine AP 1089

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12. In L.H.V.Prasad and others (referred supra), the facts were that,
the parents of the complainant/husband gave an advertisement seeking
marriage alliances, to which Accused No.1 approached furnishing
particulars of Accused No.4. Accused No.1 claimed their caste to be
“Thoorupu Kapu”, while the complainant belonged to “‘Gajula Balija
Naidu’”. Later, it was stated by the complainant that the girl belonged to
“Konda Kapu”, which is a Scheduled Tribe. On this aspect, the
complainant filed a complaint contending that he was cheated for
accepting the marriage proposal on false representation of the caste. A
learned Single Judge of the erstwhile Composite High Court while
quashing the crime, observed that unless a girl is treated a property there
cannot be an offence under Section 415 and it cannot be suggested by
anybody that a human being who is given in a marriage is a property
within the meaning of Section 415 I.P.C.

13. A follow up to the above decision is the Criminal S.L.P. filed by the
complainant before the Hon’ble Supreme Court, which is G.V. Rao v.
L.H.V. Prasad8 contending that the interpretation given to Section 415
was erroneous. This decision was not brought to the notice of this Court
by the learned Counsel for the Petitioners. The Hon’ble Apex Court
viewed the interpretation offered by the Learned Single Judge referred
supra, as incorrect in the light of the following;

“8. Thus, so far as the second part of Section 415 is concerned,

“property”, at no stage, is involved. Here it is the doing of an act or
omission to do an act by the complainant, as a result of intentional
inducement by the accused, which is material. Such inducement should
result in the doing of an act or omission to do an act as a result of which
the person concerned should have suffered or was likely to suffer
damage or harm in body, mind, reputation or property. In an old decision
of the Allahabad High Court in Empress v. Sheoram [(1882) 2 AWN 237]
it was held by Mahmood, J.:

8 (2000) 3 SCC 693

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“That to palm off a young woman as belonging to a caste different to the

one to which she really belongs, with the object of obtaining money,
amounts to the offence of cheating by personation as defined in Section
416 of the Penal Code, 1860, which must be read in the light of the
preceding Section 415.”

(emphasis supplied)

14. However,dismissing the S.L.P.the Hon’ble Apex Court basing on

the pertinence of settlement of matrimonial disputes, it was observed that
the complainant being a Scientist himself should not attach undue
importance to caste.

15. This Court is of the view that the reliance placed on L.H.V. Prasad
and others (referred supra), offers no help to the Petitioners herein for
twin reasons. Primarily, in view of the interpretation offered by the Hon’ble
Apex Court in G.V. Rao(referred supra), which held the view taken on
Section 415in L.H.V. Prasad and others (referred supra) as erroneous. It
is a settled proposition that statement of law applied to the legal issue
raised on the facts by the Hon’ble Apex Courtis a binding precedent on
this Court. It is profitable to refer to the decision in Arasmeta Captive
Power Co. (P) Ltd. v. Lafarge India (P) Ltd.,9 noting this significant
principle in doctrine of precedents as follows;

“35. In State of Orissa v. Mohd. Illiyas [(2006) 1 SCC 275 : 2006 SCC
(L&S) 122] it has been stated thus : (SCC p. 282, para 12)

“12. … According to the well-settled theory of precedents, every decision

contains three basic postulates : (i) findings of material facts, direct and
inferential. An inferential finding of facts is the inference which the Judge
draws from the direct, or perceptible facts; (ii) statements of the principles

9 (2013) 15 SCC 414

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of law applicable to the legal problems disclosed by the facts; and (iii)
judgment based on the combined effect of the above. A decision is an
authority for what it actually decides. What is of the essence in a decision
is its ratio and not every observation found therein nor what logically flows
from the various observations made in the judgment.”

(emphasis supplied)

16. Secondly, in the instant case, it is not the case of the de

facto complainant that A.1/mother-in-law, claimed that they belong to
Brahmin community, so he accepted the proposal of the marriage and
later it came to his notice that his wife belongs to ‘Padmasali’ community
but not ‘Brahmin’ community. Allegations were made to the effect that
after he came to know the caste of his wife, thereafter A.1 and A.2 with
the active support of A.3 to A.8, forged the documents and by using those
documents made an application to Mee Seva for change of surname of
the husband of A.1 as “Srirambhotla’ instead of ‘Seeram’. During the
course of investigation, it came to notice that the surname of the husband
of A.1 is ‘Seeram’.

17. It is a trite proposition of law that in deciding criminal cases, courts

should keep in mind that each case rests on its own facts.A marriage
rests primarily on the mutual promise of trust and confidence of the
parties involved. Allegations in the complaint and the averments made in
the charge sheet would prima facie disclose that there is an act of
cheating and forgery by the Petitioner Nos.1 and 2/Accused Nos., 1 and 2
to attract the offences under Sections 420, 464, 468 and 472 read with 34
IPC. Truthfulness or otherwise of the same, is a matter to be decided by
the trial court. This Court while exercising its jurisdiction under Section
482 Cr.P.C., cannot conduct a mini trial. However, perusal of the record
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shows that, except the omnibus allegations that Accused No.3 supported
Accused No.1 and Accused No.2 in forging the documents and using the
same for change of surname of the husband of Accused No.1, no
material has been placed on record showing the involvement of Accused
No.3 in the commission of the offence. Without there being any
substantial material to establish the involvement of Petitioner
No.3/Accused No.3 on mere casual reference, continuation of criminal
proceedings against her would be an abuse of process of law.

18. Therefore, in view of the above discussion, this Court is of the view that
the allegations made in the complaint are sufficient for the trial to be taken up
against Petitioner Nos.1 and 2/Accused Nos.1 and2 and thereby, the

proceedings against them are not liable to be quashed. However, the

proceedings against Petitioner No.3/Accused No.3 can be quashed.

19. In the result, the Criminal Petition is partly allowed quashing

the proceedings against Petitioner No.3/Accused No.3 in C.C.No.578 of

2021 on the file of the Court of Additional Judicial Magistrate of First

Class, Amalapuram, East Godavari District, for the offences punishable
under Sections 420, 464, 468 and 472 read with 34 IPC . The petition
against the Petitioner Nos.1 and 2/Accused Nos.1 and 2 is hereby dismissed.

As a sequel thereto, miscellaneous petitions, pending if any, shall

stand closed.

Result of the case

The Criminal Petition is partly allowed.

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Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 54 : 2024:APHC:6966
PIDIYALA BUJJI BABU
Vs.
STATE OF AP
(Criminal Petition 242 of .2020)
12 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether there are any justifiable grounds for quashing of the proceedings
against the petitioner for the offence punishable under Section 420 of the
Indian Penal Code, 1860?

Headnotes

Section 420 of the Indian Penal Code, 1860 – Accused 1 & 2 made the
defacto complainant to believe that they have organised NGO Association to
help poor people and that they would run old age homes and orphanages
with foreign currency – Registered a Charitable Trust in the name of defacto
complainant and LW-5 and took Rs.51,00,000/-, agreeing to repay the same
within one and half months - Both the accused did not repay the amount and
cheated them.

Held: Prima facie case punishable under Section 420 of the Indian Penal
Code, 1860 is made out. It is not open to the Court to stifle proceedings by
entering merits of the contentions made by Petitioner/Accused No.2 –
Criminal proceedings cannot be quashed. Petition is dismissed (Para No.8)

Acts

Indian Penal Code, 1860; Criminal Procedure Code, 1973

Keywords
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Criminality to a civil case; deceptive words, cheating, Dishonest intention or

inducement; Quashing of Criminal Proceedings.

Case Law/Reference Cited

Kamal Shivaji Pokarnekar vs State of Maharashtra and Others

Appearances For Parties

For Appellant: Sri P.Nagendra Reddy

For Respondents: Assistant Public Prosecutor

Case Arising From

The petitioner/A2 is seeking to quash the proceedings in C.C.No.725 of

2019 on the file of Additional Judicial Magistrate of First Class, Nandigama
for the offence punishable under Sections 420 of the Indian Penal Code,
1860.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed by the petitioner/A2, seeking to quash the
proceedings in C.C.No.725 of 2019, on the file of Additional Judicial
Magistrate of First Class, Nandigama, for the offence punishable under
Sections 420 of the Indian Penal Code,18602 .

2. The facts which led to the filing of this petition are;

a. It is the case of the de facto complainant that he is a resident of

Jagannadhapuram Village, and he was working as a Teacher. Accused
No.1, who is a Pastor used to visit his house for prayers. While so,

1 for short 'Cr.P.C'

2 for short 'I.P.C.'
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AccusedNo.1introducedPetitioner/AccusedNo.2tohimstatingthatthey
have organized N.G.O Association at Jujjuru Village to help the poor
people. With deceptive words, keeping them under the belief that they
will receive foreign currency, they requested to provide loan agreeing to
repay the same within 1 ½ months. Having believed their words, he
provided total amount of Rs.51,00,000/-. The accused made them to
believe that they would run old age homes and orphanages with foreign
currency. Saying so, on 19.02.2018 they got registered Raju Charitable
Trust in the name of the de facto complainant and Prakash Charitable
Trust in the name of L.W.5. But, both the accused did not repay the
amount to them and cheated them.

b. Based on the complaint lodged by the de facto complainant, a case

in Crime No.159 of 2019 was registered by Vatsavai Police, for the
offence under Section 420 IPC. After completion of investigation in the
said crime, a charge sheet was filed and the same was numbered as
C.C.No.725 of 2019 on the file of the Court of Additional Judicial
Magistrate of First Class, Nandigama.

c. The said C.C is sought to be quashed by Petitioner/A.2, vide this

Petition. Hence, the Crl.P.

Arguments Advanced at the Bar

3.Heard Sri P.Nagendra Reddy, learned counsel for the petitioner and
Ms.D.Prasanna Lakshmi, learned Assistant Public Prosecutor
representing the State/Respondent No.1. Inspite of service of notice,
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none appeared for Respondent No.2.

4. Learned counsel for the petitioner would submit that, the allegations
made in the charge sheet would disclose that accused have taken loan
from the de facto Complainant and others with a promise to repay the
same along with interest, but failed to repay. It does not at no stretch of
imagination, attracts the offence under Section 420 of the I.P.C. The
case is purely of civil nature. Only to extort the accused, police has given
a shape of criminality to the civil case. There is no dishonest intention or
inducement on the part of the petitioner.

5. Learned Assistant Public Prosecutor would submit that prima facie

case is made out against the petitioner. Court has taken cognizance for
the offence under Section 420 of the I.P.C against the petitioner. The
contents of the charge sheet reveals prima facie case against the
petitioner and as such, this Court cannot conduct mini trial, while
exercising the jurisdiction under Section 482 of the Cr.P.C., and prays for
dismissal of the petition.

6. Having heard the submissions of the learned counsel representing

both the parties, the point that would emerge for determination is:

Whether there are any justifiable grounds for quashment of the

proceedings in C.C.No.725 of 2019 against the petitioner for the offence
punishable under Section 420 of the I.P.C?

7. A court while sitting in Section 482 jurisdiction is not functioning as

a court of appeal or a court of revision. It must exercise its powers to do
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real and substantial justice, depending on the facts and circumstances of

the case. These powers must be invoked for compelling reasons of abuse
of process of law or glaring injustice, which are against sound principles
of criminal jurisprudence. Specific circumstances warranting the
invocation of the provision must be present. The Hon’ble Apex Court in
Kamal Shivaji Pokarnekar v. State of Maharashtra and others3 , has
categorically held as follows:

“5. Quashing the criminal proceedings is called for only in a case 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 the offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same. It is not necessary that a
meticulous analysis of the case should be done before the trial to find out whether the case
would end in conviction or acquittal. If it appears on a reading of the complaint and
consideration of the allegations therein, in the light of the statement made on oath that the
ingredients of the offence are disclosed, there would be no justification for the High Court
to interfere.

6. Defences that may be available, or facts/aspects which when established during the trial,
may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that
stage, the only question relevant is whether the averments in the complaint spell out the
ingredients of a criminal offence or not.”

(emphasis supplied)

8. A bare perusal of the charge sheet would disclose that petitioner/

Accused No.2 along with Accused No.1 cheated the de facto complainant
and others, with deceptive words, by borrowing a huge amount of
Rs.51,00,000/- from them, and failed to repay the same, which, prima
facie attracts the offence punishable under Section 420 of the I.P.C.his
T
Court has to consider whether the complaint discloses prima facie offence that

3 AIR 2019 SC 847

 Digital High Court Reports
59

was alleged against the petitioner/A.2 and the correctness or otherwise of said
allegations would be decided only during the trial. It is not open to the Court to
stifle proceedings by entering merits of the contentions made on behalf of the
petitioner/A.2. The allegations made by Respondent No.2 are sufficient enough
for the trial to be taken up and hence, the criminal proceedings cannot be
quashed at this stage. Therefore, no fit circumstances are emerging from the
record to exercise jurisdiction under Section 482 Cr.P.C. The petition lacks

merit.

9. Accordingly, this Criminal Petition is dismissed.

As a sequel thereto, miscellaneous petitions, pending if any, shall

stand closed.

Result of the case

The Criminal Petition is dismissed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 60 : 2024:APHC:6969
SHAIK CHAND BASHA
Vs.
THE STATE OF ANDHRA PRADESH
(Criminal Petition 6127 of .2020)
12 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether without questioning the grant of talaq, the complaint filed by

Respondent No.2 after lapse of nearly 6½ years from the date of Talaq
alleging that the Petitioner/Accused No.2 by obtaining money from
Accused No.1 had issued Talaqnama, without her consent and
knowledge, is tenable or not?

Headnotes

The Indian Penal Code, 1860 - Section 420 -The marriage between
Respondent N0.2 was performed with Accused N0.1- Disputes
between them and after exchange of notices, Accused N0.1
pronouncedTalaqon28.07.2014.TheDivorce/Talaqwasmaterialized
and the marriage tie between them ended. The present complaint was
filed by Respondent No.2 after lapse of nearly 6½ years from the date
of Talaq alleging that the Petitioner/Accused No.2 by obtaining money
from Accused N0.1 had issued Talaqnama, without her consent and
knowledge. But, the said Talaq was not questioned by Respondent
No.2. Petitioner/Accused N0.2 is a Government Kazi and he
discharged his duty as such. Further, after issuance of divorce
certificate, the Respondent No.2 filed a maintenance case and
maintenance of Rs.1,500/- per month was also granted to her vide
order dated 08.07.2016.

Held: Therefore, the contention of Respondent No.2 that she did not
have knowledge about the said Talaqnama, is not tenable. The further
allegation that Petitioner/Accused No.2 by obtaining money from
 Digital High Court Reports
[2024] 1 A.P.L.R. 61

Accused No.1 issued Talaqnama was held to be baseless. No prima

facie offence is made out against the Petitioner/Accused N0.2.-
Criminal Petition allowed (Para 10)

Acts

The Indian Penal Code, 1860

Keywords

Talaq, maintenance, quashing of criminal proceedings, prima facie

case, justifiable grounds.

Case Law/Reference Cited

State of Haryana & others v. Bhajanlal & others, Neeharika Infrastructure Pvt. Ltd. v.
State of Maharashtra & others, Madhavrao Jiwajirao Scindia v Sambhajirao
ChandrojiraoAngre

Appearances For Parties

For Petitioner: Sri S. A.Razak

For Respondents: Additional Public Prosecutor on behalf

ofthe Respondent No.1

SmtA.Varalakshmi, Advocate for the

Respondent No.2.

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 filed,

by the Petitioner/A.2 seeking quashment of proceedings in Crime
N0.253of 2020 on the file of Podili Police Station, Prakasam District,
which was registered for the offence punishable under Section 420 of
 Digital High Court Reports
62

the Indian Penal Code, 1860.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed, by the petitioner/A.2, seeking quashment of
proceedings in Crime No.253 of 2020 on the file of Podili Police

Station, Prakasam District, which was registered for the offence

punishable under Section 420 of the Indian Penal Code,1860.2

2. The facts which led to the filing of this petition are;

a. It is the case of the de facto complainant that she is a resident of

st
Podili Village. Petitioner/A.2, who is a resident of 21 Ward, Sultan
Mohiddin Nagar, Kandukuru, is a Government Kazi. Petitioner/A.2

having obtained money from Pathan Fayaz Khan/ husband of the de

facto complainant, without her knowledge and consent, illegally
prepared Talaqnama, basing on which the name of the de

facto complainant was removed from the Service Register of her

husband, who is working in Army. Due to the said act, the de
facto complainant has been suffering a lot both physically and
mentally.

b. The de facto complainant lodged a report against the accused,

based on which a case in Crime No.253 of 2020 for the offence under
Section 420 IPC was registered by Podili Police, Prakasam District.

This Crime is sought to be quashed in the present petition. Hence

1 in short 'Cr.P.C'
2 in short, 'I.P.C.'
 Digital High Court Reports
63

Crl.P.

Arguments Advanced at the Bar

3. Heard Sri S.A.Razak, learned counsel for Petitioner, and Ms.

Prasanna Lakshmi, learned Assistant Public Prosecutor representing

the State/Respondent No.1.

4. Learned counsel for the petitioner would submit that no prima

facie case for the offence alleged is made out against the
petitioner/A.2. The learned counsel for the petitioner would further

submit that there is no iota of evidence against the petitioner/A.2. He

would further submit that initiation of criminal proceedings against the
petitioner/A.2 is nothing but an abuse of process of law. The petitioner

was falsely implicated in the present case to bring him to the terms of
the de-facto complainant. Further, it is contended that no specific overt

acts are attributed against the petitioner to attract the offence under
Section 420 I.P.C.

5. Refuting the arguments referred to above, learned Assistant

Public Prosecutor would submit that there are no grounds to quash the
case against petitioner/A2. She would submit that the allegations

made against the petitioner in the complaint would squarely attract the
offence under Section 420 I.P.C and therefore, the criminal
proceedings should not be quashed against petitioner/A-2.
 Digital High Court Reports
64

6. Having heard the submissions made by the learned counsels

and on perusal of the material available on record, the point for

determination that arises in this case is as follows;

WhethertheproceedingsagainstthePetitioner/A-2inCrimeNo.253of

2020 on the file of Podili Police Station, Prakasam District are liable to
be quashed by exercising jurisdiction under Section 482 of the
Cr.P.C.?

Determination by the Court

7. Inherent powers, are as the word suggests, are inalienably

present in the Court. They are not conferred, but are merely

safeguarded and preserved by provision under Section 482 to the High

Court. A bare perusal of Section 482 makes it clear that the Code

envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect
to any order under the Code or, (ii) to prevent abuse of the process of

any Court or, otherwise (iii) to secure ends of justice. A court while
sitting in Section 482 jurisdiction must exercise its powers to do real
and substantial justice, depending on the facts and circumstances of

the case for compelling reasons of abuse of process of law or glaring

injustice, which are against sound principles of criminal jurisprudence.

8. Specific circumstances warranting invocation of powers under

Section 482 have been strongly emphasized in a catena of decisions.
 Digital High Court Reports
65

To cite a few, State of Haryana & others v. Bhajanlal & others3 at

paras 102 and 103, Neeharika Infrastructure Pvt. Ltd. v. State of

Maharashtra & others,4 at para 57. The limited question that is to be

answered is “whether the uncontroverted allegations as made prima
facie establish the offence or not.”

9. A three-Judge Bench of the Hon’ble Apex Court in Madhavrao

Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre5 held as follows;

“The legal position is well settled that when a prosecution at the initial
stage is asked to be quashed, the test to be applied by the court is as
to whether the uncontroverted allegations as made prima facie
establish the offence. It is also for the court to take into consideration
any special features which appear in a particular case to consider
whether it is expedient and in the interest of justice to permit a
prosecution to continue. This is so on the basis that the court cannot
be utilised for any oblique purpose and where in the opinion of the
court chances of an ultimate conviction are bleak and, therefore, no
useful purpose is likely to be served by allowing a criminal prosecution
to continue, the court may while taking into consideration the special
facts of a case also quash the proceeding even though it may be at a
preliminary stage.”

(emphasis supplied)

10. Perusal of the record shows that the marriage between

RespondentNo.2wasperformedwithAccusedNo.1.Subsequently,in

view of the disputes between them and after exchange of notices,

Accused No.1 had pronounced Talaq on 28.07.2014. The

divorce/Talaq was materialized and the marriage tie between them

3 1992 Supp. (1) SCC

4 (2020) 10 SCC 180
5 (1988) 1 SCC 692
 Digital High Court Reports
66

ended. The present complaint was filed by Respondent after lapse of

nearly 6 ½ years from the date of Talaq alleging that the

petitioner/Accused No.2 by obtaining money from Accused No.1 had

issued Talaqnama, without her consent and knowledge. But, the said
Talaq was not questioned by Respondent No.2. Petitioner/Accused

No.2 is a Government Kazi and he discharged his duty as such.

Further, after issuance of divorce certificate, Respondent No.2 had
filed a maintenance case M.C.No.23 of 2014 before learned Judicial

Magistrate of First Class and maintenance of Rs.1,500/- per month

was also granted to her vide order dated 08.07.2016. Therefore, the
contention of Respondent No.2 that she does not have knowledge

about the said Talaqnama, is not tenable. The further allegation that
Petitioner/Accused No.2 by obtaining money from Accused No.1 had

issued Talaqnama is baseless. No prima facie offence is made out

against the petitioner/Accused No.2.

11. Therefore, in view of the guideline No.1 in Bhajanlal’s case

(supra), since the allegations made in the complaint do not disclose
the commission of any offence and make out a case against the

petitioner/A.2, the criminal proceedings initiated against petitioner/A.2

are liable to be quashed. This Court finds that there are justifiable
grounds to exercise its jurisdiction under Section 482 Cr.P.C.

Therefore, as the very ingredients of the offending Section are not

attracted, prosecution initiated against the petitioner/A.2 is untenable

and is liable to be quashed.

 Digital High Court Reports
67

12. In result, the Criminal Petition is allowed. The proceedings

against Petitioner/Accused No.2 in Crime No.253 of 2020 on the file of

Podili Police Station, Prakasam District registered for the offence

punishable under Section 420 I.P.C., are hereby quashed.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 68 : 2024:APHC:6968
Y C SEKHAR
Vs.
The State of Andhra Pradesh
(Criminal Petition 578 of .2020)
12 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether the case as against the petitioners/Accused Nos. 2, 4, 5, 6, 8,

9 and 10 in C.C.No.2609 of 2018 on the file of the Court of Judicial
Magistrate of First Class, Kurnool is liable to be quashed by exercising
jurisdiction under Section 482 of the Cr.P.C.?

Headnotes

The Indian Penal Code, 1860 - Sections 409 and 420 and Information
Technology Act, 2000 – Sections 66 and 66-B - Allegations against the
Petitioners / F.P. Shop Dealers for tampering of e-POS and un-
authenticated drawing of scheduled commodities pertaining to 15411
Ration Cards, that took place in October, 2016.

Held: Perusal of the record shows that the Revenue Divisional Officer
submitted his report stating that nothing could be elicited nor any
complaint was received from the cardholders against the Petitioners,
as such there is no positive evidence against the Petitioners to take
necessary action - the Criminal Petition is allowed (Para No.10)

Acts

The Indian Penal Code, 1860 and Information Technology Act, 2000

Keywords
 Digital High Court Reports
[2024] 1 A.P.L.R. 69

Fair price shop dealers, Tampering of ePOS, Unauthoriszed drawl of

scheduled commodities, quashing of criminal proceedings

Case Law/Reference Cited

State of Haryana & others v. Bhajanlal & others, Madhavrao Jiwajirao Scindia v
Sambhajirao Chandrojirao Angre

Appearances For Parties

For Appellant: Ms.E.Santha Sree

For Respondents: Assistant Public Prosecutor for R1

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has

been filed by the Petitioners/Accused Nos.2, 4, 5, 6, 8, 9 and 10,
seeking quashment of proceedings against them in C.C. No.2609 of
2018 on the file of the Court of Judicial Magistrate of First Class,
Kurnool, registered for the offences punishable under Sections 409
and 420 of the Indian Penal Code, 1860 and Sections 66 and 66-B of
Information Technology Act, 2000.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed, by the Petitioners/Accused Nos.2, 4, 5, 6, 8, 9
and 10, seeking quashment of proceedings against them in C.C.

No.2609 of 2018 on the file of the Court of Judicial Magistrate of First

Class, Kurnool, registered for the offence punishable under Sections

409 and 420 of the Indian Penal Code, 18602 and Sections 66 and

1 in short 'Cr.P.C'
2 in short, 'I.P.C.'
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70

66-B of Information Technology Act, 2000.3

2. The facts which led to the filing of this petition are;

a. The Government of Andhra Pradesh introduced the ePOS

machines in May, 2015 to distribute essential commodities to the

concerned Districts and for supplying the same to the Fair Price Shop
Dealers to avoid misappropriation in distribution to the card holders, by

obtaining thumb impressions. The said ePOS machines were under

the supervision of NIC, Hyderabad and Aadhaar Server at Bengaluru.
A F.P.Shop dealer must obtain the thumb impression of the card

holder in the said ePOS machine and after obtaining the approval
signals, the dealer should distribute the commodities to the card
holders.

b. While so, the Revenue Divisional Officer, Kurnool through is

letter in Rc.No.B/102/2016, dated 17.11.2016 had informed regarding

tampering of ePOS by F.P.Shop Dealers and un-authenticated
drawing of scheduled commodities pertaining to 15411 ration cards,
that took place in October, 2016. The R.D.O further informed that the
Joint Collector, Kurnool in his letter vide Rc.C56/325/2016 dated
16.11.2016 informed the Deputy (IT-I), O/o.Commissioner of Civil

Supplies, A.P., Vijayawada, and had furnished a list of F.P.Shop

Dealers who drew the commodities unauthorizedly in October, 2016
and caused loss of Rs.5,33,921/- to the Government.

3 in short, 'I.T.Act.'
 Digital High Court Reports
71

c. After investigation, the Investigating Officer arrested Accused No.3

on 30.11.2016 and sent him for judicial custody. On the Writ Petitions

filed by Accused Nos.1, 2, 4 to 11, this Court directed the Police to

conduct investigation without arresting them. Accused Nos.12 and 13
absconded.

d. After investigation of the case, a charge sheet was filed before

the Court of Judicial Magistrate of First Class, Kurnool for the above

said offence and the same was numbered as C.C.No.2609 of 2018.

This C.C is sought to be quashed by petitioners/Accused Nos.2, 4, 5,
6, 8, 9 and 10, vide this Petition. Hence, the Crl.P.

Arguments Advanced at the Bar

3. Heard Ms.E.Santha Sree, learned counsel for Petitioners, and

Ms.D.Prasanna Lakshmi, learned Assistant Public Prosecutor

representing the State/Respondent No.1. None represented for

Respondent No.2.

4. Learned counsel for the petitioners would submit that the

petitioners have been working as Fair Price Shop Dealers since 20
years without any remark and to the satisfaction of the cardholders

and the Officers concerned and that the present case has been case
foisted against the petitioners, without considering the explanation
submitted by the petitioners and the report of the Revenue Divisional

Officer. Hence, prayed to quash the proceedings against the

 Digital High Court Reports
72

petitioners.

5. Refuting the arguments referred to above, learned Assistant

Public Prosecutor would submit that there are no grounds to quash the
case against petitioners. She would submit that the allegations made

against the petitioners in the complaint would squarely attract the

offences alleged against the petitioners and therefore, the criminal
proceedings should not be quashed against petitioners. Hence,

prayed to dismiss the petition.

Point for Determination

6. Having heard the submissions made by the learned counsels

and on perusal of the material available on record, the point for

determination that arises in this case is as follows:

Whether the case against the petitioners/Accused Nos.2, 4, 5, 6, 8, 9

and 10 in C.C.No.2609 of 2018 on the file of the Court of Judicial
Magistrate of First Class, Kurnool is liable to be quashed by exercising
jurisdiction under Section 482 of the Cr.P.C.?

Determination by the Court

7. A bare perusal of Section 482 makes it clear that the Code

envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect
to any order under the Code or, (ii) to prevent abuse of the process of
 Digital High Court Reports
73

any Court or, otherwise (iii) to secure ends of justice. A court while
sitting in Section 482 jurisdiction is not functioning as a court of appeal

or a court of revision. It must exercise its powers to do real and

substantial justice, depending on the facts and circumstances of the
case. These powers must be invoked for compelling reasons of abuse

of process of law or glaring injustice, which are against sound

principles of criminal jurisprudence.

8. Specific circumstances warranting the invocation of the

provision must be present. To identify these specific circumstances, it
is essential to discuss some precedents. The decision rendered by the

Hon’ble Apex Court in State of Haryana and others v. Bhajanlal and

others4 is considered as the guiding torch in the application of Section
482. At paras 102 and 103, the circumstances are spelt out as

follows;

“102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a

4 AIR 1992 SC 604

 Digital High Court Reports
74

case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5)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.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.
 Digital High Court Reports
75

103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases; that
the court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act according to its
whim or caprice.”

(emphasis supplied)

9. A three-Judge Bench of the Hon’ble Apex Court in Madhavrao

Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre5 held as follows;

“The legal position is well settled that when a prosecution at the initial
stage is asked to be quashed, the test to be applied by the court is as
to whether the uncontroverted allegations as made prima facie
establish the offence. It is also for the court to take into consideration
any special features which appear in a particular case to consider
whether it is expedient and in the interest of justice to permit a
prosecution to continue. This is so on the basis that the court cannot
be utilised for any oblique purpose and where in the opinion of the
court chances of an ultimate conviction are bleak and, therefore, no
useful purpose is likely to be served by allowing a criminal prosecution
to continue, the court may while taking into consideration the special
facts of a case also quash the proceeding even though it may be at a
preliminary stage.”

10.The present case was lodged by Respondent No.2 based on the

information given by the-then Revenue Divisional Officer, Kurnool

vide reference in Rc.No.B/1202/2016, dated 17.11.2016, against the
accused, who are the Fair Price Shop Dealers, regarding the

tampering of ePOS machines, unauthorized drawl of scheduled

5 (1988) 1 SCC 692

 Digital High Court Reports
76

commodities and causing loss of Rs.5,33,921/- to the Government.

Perusal of the record shows that the Revenue Divisional Officer,

submitted his report stating that nothing could be elicited nor any
complaint was received from the cardholders against the petitioners,
as such there is no positive evidence against the petitioners to take

necessary action.

11. In view of the finding of the Revenue Divisional Officer, no case

can be made out against the petitioners. Further, in view of the

guideline No.1 in Bhajanlal’s case (supra), the allegations made in the
complaint do not disclose the commission of any offence and make out

a case against the petitioners, as such, the proceedings are liable to

be quashed. This Court finds that there are justifiable grounds to

exercise its jurisdiction under Section 482 Cr.P.C.

12. In result, the Criminal Petition is allowed. The proceedings

against petitioners/Accused Nos.2, 4, 5, 6, 8, 9 and 10, in
C.C.No.2609 of 2018 on the file of the Court of Judicial Magistrate of
First Class, Kurnool registered for the offence punishable under
Sections 409 and 420 IPC and Sections 66 and 66-B of Information

Technology Act, are hereby quashed.

Pending miscellaneous petitions, if any, shall stand closed.

 Digital High Court Reports
77

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 78 : 2024:APHC:1907
Sri B.Apparao ,(A-2)
Vs.
State -rep by Inspector of Police ,
(Criminal Appeal 857 of .2007)
22 January 2024
Sri Justice A V Ravindra Babu

Issue for Consideration

Whether the demand of bribe is a sine qua-non for the offences under
Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988?

Headnotes

The Prevention of Corruption Act, 1988 Section 13(1) (d) and Section 13(2)
of the Act- Whether the demand of bribe is a sinequa-non for the offences
under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act,
1988.

Held: The evidence of PW1 proved the allegations demand against AO-1
and AO-2 on the date of trap - The evidence on record proved charge u/s
13(1) (d) r/w 13(2) of the Act against AO-1 and AO-2 –Appeal Dismissed
(Para Nos.33 & 34)

Section 201 of the Indian Penal Code-Intention to screen away the offence
under Section 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, 1988,
handing over of the zip bag containing the bribe amount to PW3 who inturn
passed over the same to PW4, though PW3 & PW4 turned hostile – Court
relied on evidence of other witnesses.

Held: Evidence on record is sufficient to convict and sentence AO-2 for the
charge under Section 201 Indian Penal Code.– Appeal Dismissed. (Para
 Digital High Court Reports
[2024] 1 A.P.L.R. 79

Nos.35 & 36)

Acts

The Prevention of Corruption Act, 1988, Indian Penal Code, 1861

Keywords

Public Servants; Screening of Evidence; Demand of bribe; Trap;

Case Law/Reference Cited

P.Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh and

another, State of Kerala and others vs C.P.Rao, Sujit Biswas vs State of Assam,
Punjabrao vs State of Maharashtra, B.Jayaraj vs State of Andhra Pradesh

Appearances For Parties

For Appellant: Sri A.Hariprasad Reddy

For Respondents: Smt .A. Gayathri Reddy, Standing Counsel for ACB cum
Special Public Prosecutor

Case Arising From

The Judgement of Learned III Additional District and Special Judge for ACB
Cases, Visakhapatnam convicting the AO-1 and AO-2 for the charge under
Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988
and further AO-2 under Section 201 Indian Penal Code, 1860.

Judgment/Order

Challenge in the Criminal Appeal Nos.857 and 858 of 2007 is to the

judgment, dated 21.06.2007, in Calender Case No.29 of 2001, on the file of the
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80

Court of III Additional District and Sessions Judge-cum-Special Judge for ACB
Cases, Visakhapatnam (for short, ‘the learned Special Judge’) by the Accused
Officer No.2 (AO-2) and Accused Officer No.1 (AO-1) respectively.

2. The parties to these Criminal Appeals will hereinafter be referred to as

described before the trial Court, for the sake of convenience.

3. The case of the prosecution, in brief, as set out in the charge sheet filed
bythebytheInspectorofPolice,Anti-CorruptionBureau(ACB),Visakhapatnam
pertaining to Crime No.7/RC-WLR/2000 of ACB, Visakhapatnam for the
offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of the Prevention of
the Corruption Act, 1988 (for short, ‘the PC Act’) and Sections 120-B and 201 of
the Indian Penal Code, 1860 (for short, ‘the IPC’), is that the Accused Officer
No.1 (AO-1) by name M. Appalaraju worked as Deputy Commercial Tax Officer
(DCTO), Suryabagh, Visakhapatnam from 16.07.1998 till he was placed under
suspension on 26.07.2000 as such he is a ‘Public Servant’ within the meaning
of Section 2(c) of the PC Act. Accused Officer No.2 by name B. Apparao
worked as Senior Assistant in the office of Commercial Tax Officer, Suryabagh,
Visakhapatnam from 14.07.1999 till he was placed under suspension on
26.07.2000 as such he is a ‘Public Servant’ within the meaning of Section 2(c)
of the PC Act.

(i) LW.1 – Thyaveedu Baburaj is the Manager of Queens Bakery and

Sweets Shop situated in Shop No.21, RTC Complex, Visakhapatnam and he
has been doing business on behalf of LW.2 – M. Tarakeswari, who issued
authorization, dated 18.09.1996, in his favour appointing him as Manager of the
said Shop to look after the business affairs on her behalf as she could not
maintain the business personally. Thus, LW.1 has been looking after the
business and other matters such as filing of commercial tax returns etc. The
stocks in the shop are being purchased from authorized registered dealers on
genuine bills and being sold to public and nothing is being manufactured in his
shop. There is no need to pay any Sales Tax to the Commercial Tax
Department in this regard. On 30.05.2000, he filed returns in respect of his shop
for the year 1999-2000 before AO-1, but the assessment order was not given to
him. On 09.06.2000, AO-1 demanded him to pay bribe of Rs.2,000/-, when he
approached AO-1 in his office to enquire about his assessment. AO-1 instructed
him to pay the said bribe amount on 12.06.2000 to make the assessment and
return assessment order. When LW.1 expressed his inability to pay that much of
amount, since his business is a little one, AO-1 threatened him that unless the
demanded bribe amount is paid, he would object the assessment in respect of
the shop and cause hindrance to his business. Hence, LW.1 reluctantly agreed
to pay the bribe of Rs.2,000/- to AO-1 and subsequently he lodged a report with
the ACB officials on 11.06.2000. LW.14 – D.V.S. Bhaskara Raju, Deputy
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Superintendent of Police, ACB, Visakhapatnam registered the report of LW.1 as

a case in Crime No.7/RC-WLR/2000, as above, on 12.06.2000 and investigated
into.

(ii) On 12.06.2000 at 04:45 p.m. AO-1 was trapped in his office

chambers, situated in the office of Commercial Tax Officer when he demanded
and accepted the bribe of Rs.1,500/- from LW.1 from out of the demanded bribe
amount of Rs.2,000/-. AO-1 also asked LW.1 to pay the remaining amount of
Rs.500/- to AO-2 to receive the assessment order from AO-2. As per the
instructions of AO-1, LW.1 approached AO-2 in the main hall of the office of
LW.5 – Commercial Tax Officer and enquired about his assessment order.
AO-2 demanded him to pay the bribe of Rs.500/-. When the complainant paid
the amount of Rs.500/- to AO-2, he received the same, counted with both hands
and kept it in a small zip bag and thereafter he delivered the assessment order
acknowledgmenti.e.,Form-AA9(Part-B)acknowledgment-cum-demandnotice
to LW.1 after obtaining acknowledgment with ante date as 16.05.2000 instead
of 12.06.2000, though LW.1 expressed his pretest for putting his signature with
ante date. AO-2 on seeing the DSP, ACB, Visakhapatnam (LW.14) and other
ACB officials in the chambers of AO-1, passed on the zip bag containing tainted
cash of Rs.500/- to LW.3 – Kotilingala Trinadh – a Tea Stall owner at VUDA
Complex, who in turn passed the zip bag to LW.4 – Kotilingala Padma, his wife,
to hide the zip bag. The chemical test conducted to both hand fingers of AO-1
and inner lining of his right side pant pocket was proved positive. The tainted
amount of Rs.1,500/- was recovered from AO-1 at his instance. The chemical
test conducted to both hand fingers of AO-2 and zip bag pocket of AO-2 was
also proved positive. The bribe amount of Rs.500/- was recovered at the
instance of AO-2 from his zip bag which was passed on to LW.3 and from him
to LW.4. The serial numbers of the tainted amount which were mentioned in the
pre-trap proceedings were tallied with the tainted amount that was recovered
from AO-1 and AO-2. LW.14 seized the tainted currency of Rs.1,500/- and
Rs.500/- from AO-1 and AO-2 respectively. The explanation tendered by AO-1
is far from truth. AO-2 admitted that he received Rs.500/- from LW.1 and
delivered the acknowledgment to the complainant during the post-trap.

(iii) The Government of Andhra Pradesh being the competent authority

accorded sanction to prosecute the AO-1 and AO-2 in a competent Court of law
separately vide G.O.Ms.Nos.541 and 542, dated 04.08.2001 of Revenue
(Vigilance-1) Department. So, both the Accused Officers are liable to be
punished for the offences under Sections 7 and 13(2) R/w. Section 13(1)(d) of
the PC Act and further AO-2 is liable to be punished for the offence under
Section 201 IPC.

4. The learned Special Judge took cognizance of the case under the above
provisions of law. After appearance of the Accused Officers, by complying the
necessary formalities under Section 207 Cr.P.C, the learned Special Judge
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framed charges under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act
against AO-1 and AO-2 and further a charge under Section 201 of IPC against
AO-2, read over and explained the same to them in Telugu for which they
pleaded not guilty and claimed to be tried.

5. In order to establish the guilt against the Accused Officers, the

prosecution before the trial Court examined PWs.1 to PW.6 and got marked
Exs.P-1 to P-21, P-2(a) and MOs.1 to MO.14.

6. After closure of the evidence of the prosecution, both the Accused

Officers were examined under Section 313 Cr.P.C with reference to the
incriminating circumstances appearing in the evidence let in by the prosecution,
for which they denied the incriminating circumstances and reported defence
evidence. In furtherance of their defence, the Accused Officers got examined
DW.1 – B. Nagendra, who is a Junior Assistant in the office of Commercial Tax
Officer, Chinna Waltair, Visakhapatnam.

7. The learned Special Judge, on hearing both sides and after considering
the oral and documentary evidence on record, made a finding that as the
prosecution failed to establish the allegations of demand as against AO-1 and
AO-2, acquitted both of them under Section 248(1) of the Code of Criminal
Procedure, 1973 (for short, ‘the Cr.P.C’) for the charge under Section 7 of the
PC Act. The learned Special Judge, however, found AO-1 and AO-2 guilty of
the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act and further
found AO-2 guilty of the charge under Section 201 IPC and convicted them
under Section 248(2) Cr.P.C and, after questioning them about the quantum of
sentence, sentenced them to undergo Rigorous Imprisonment for one year
each and to pay a fine of Rs.1,000/- each in default to suffer Simple
Imprisonment for two months each for the offence under Section 13(1)(d) R/w.
Section 13(2) of the PC Act. Further, the learned Special Judge sentenced
AO-2 to undergo Rigorous Imprisonment for six months and to pay a fine of
Rs.500/- in default to suffer Simple Imprisonment for one month for the offence
under Section 201 IPC and that the punishment imposed against AO-2 shall run
concurrently.

8. Felt aggrieved of the aforesaid conviction and sentence imposed, the

unsuccessful Accused Officer No.1 filed Criminal Appeal No.858 of 2007 and
Accused Officer No.2 filed Criminal Appeal No.857 of 2007.
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9. As against the finding of the learned Special Judge that the prosecution
did not prove the charge under Section 7 of the PC Act against AO-1 and AO-2,
the prosecution did not file any Appeal. So, the scope of these Appeals is
confined to decide the validity of Section 13(1)(d) R/w. Section 13(2) of the PC
Act against AO-1 and AO-2 and further Section 201 IPC against AO-2 for
causing disappearance of evidence relating to Section 13(1)(d) R/w. Section
13(2) of the PC Act.

10. Now, in deciding these Appeals, the points that arise for consideration are
as follows:

1) Whether the prosecution before the trial Court proved that AO-1 and AO-2
are public servants within the meaning of Section 2(c) of the PC Act and
whether the prosecution obtained a valid sanction in terms of Section 19 of the
PC Act to prosecute them for the charges framed?

2) Whether the prosecution before the trial Court proved that AO-1 and AO-2
by corrupt or illegal means or by abusing their official position as public servants
obtained a sum of Rs.1,500/- and Rs.500/- from PW.1 towards bribe in the
manner as alleged by the prosecution?

3) Whether AO-2 caused disappearance of evidence relating to receiving a

sum of Rs.500/- by him from PW.1 so as to hide the commission of offence?

4) Whether the judgment, dated 21.06.2007, in Calender Case No.29 of 2001, is

sustainable under law and facts and whether there are any grounds to interfere
with the same?

11. POINT No.1: There is no dispute that both the Accused Officers were
working as Public Servants within the meaning of Section 2(c) of the PC Act and
they were drawing salary from the Government. So, absolutely, there is no
dispute that both the Accused Officers were working as Public Servants within
the meaning of Section 2(c) of the PC Act. With regard to the sanction obtained
by the prosecution, the prosecution exhibited sanction orders under Exs.P-20
and P-21. It is to be noted that, as evident from the deposition of PW.6 – Trap
Laying Officer, the learned defence counsel before the learned Special Judge
gave his consent to exhibit Exs.P-20 and P-21 without examination of the
person or who is acquainted with the signature of the sanctioning authority who
issued Exs.P-20 and P-21. So, as evident from Exs.P-20 and P-21, absolutely,
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there is application of mind by the sanctioning authority with reference to the

allegations against AO-1 and AO-2. So, a perusal of Exs.P-20 and P-21,
undoubtedly, shows that the sanctioning authority after due application of mind
into the allegations of prosecution decided to accord sanction. Accused Officers
had no objection for marking of Exs.P-20 and P-21 and further they did not
dispute the contents of Exs.P-20 and P-21 before the trial Court. Even in the
grounds of Appeal, they did not challenge the findings of the learned Special
Judge that the prosecution obtained a valid sanction under Section 19 of the PC
Act. Hence, this point is answered accordingly in favour of the prosecution.

12. POINT Nos.2 to 4: PW.1 is no other than the de-facto complainant who
lodged Ex.P-3 report with the DSP, ACB, Visakhapatnam. PW.2 is the mediator
for the pre-trap and post-trap proceedings, who supported the case of
prosecution. PW.3 and PW.4 did not support the case of prosecution. PW.5 was
examined by the prosecution to speak about the procedural aspects in respect
of filing returns in the Commercial Tax Department. PW.6 is the Trap Laying
Officer.

13. Before going to appreciate the evidence with reference to the contentions
advanced, this Court would like to place on record that insofar as Criminal
Appeal No.858 of 2007 filed by AO-1 is concerned, he died during pendency of
the Criminal Appeal. The legal representative of AO-1 is impleaded to prosecute
the Appeal vide orders of this Court in I.A. No.2 of 2022, dated 19.06.2023. So,
insofar as Criminal Appeal No.858 of 2007 is concerned, Appellant/AO-1 is no
more and his wife is prosecuting the Appeal.

14. Sri A. Hariprasad Reddy, learned counsel for the appellant/AO-1 in

Criminal Appeal No.858 of 2007, would contend that the findings of the learned
Special Judge are that the prosecution did not prove the fact that AO-1
demanded PW.1 to pay the bribe of Rs.2,000/- on 09.06.2000 and in pursuance
of such a demand, he further made a demand on the date of trap and accepted
the tainted amount. Therefore, the finding of the learned Special Judge was that
the prosecution did not prove the allegation of demand of bribe as against AO-1
and AO-2. When that is the situation, in the absence of a demand, which is sine-
qua-non, for the charges under Sections 7 and 13(1)(d) R/w. Section 13(2) of
the PC Act, the conviction of the appellants under Section 13(1)(d) R/w. Section
13(2) of the PC Act is wholly un-sustainable. The defence of AO-1 before the
trial Court was that as he insisted the presence of the original assessee by
name M. Tarakeswari for verification of certain facts, PW.1 bore grudge against
him and falsely implicated him. He would contend that both the AO-1 and AO-2
set forth a proper defence before the learned Special Judge. During the course
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of trial, AO.1 put up the thrusting theory. According to his defence though AO-1
declined to receive any amount but forcibly the de-facto complainant kept the
amount in the trouser pocket of AO.1. This defence of AO-1 was not found
favour by the learned Special Judge. The law is well settled that mere recovery
of the tainted amount would not absolve the prosecution from proving the
allegations of demand and acceptance of bribe. Insofar as the contention that
PW.1 had submitted the returns on 30.05.2000 is concerned, it was falsified by
his own documents. When PW.1 submitted the returns on 16.05.2000, it was
duly assessed and the assessment order was passed on 16.05.2000 itself.
PW.1 signed the document acknowledging the receipt of assessment order on
16.05.2000 but deliberately he carried the order during the post-trap and
created a version as if AO-2 demanded him to sign the order with ante date on
16.05.2000 instead of 12.06.2000. Such version of PW.1 was highly suspicious.
Absolutely, there was no pendency of any work relating to PW.1 either before
AO-1 or before AO-2, according to the evidence available on record. The very
conviction of the Accused Officers under Section 13(1)(d) R/w. Section 13(2) of
the PC Act, when there were findings that the prosecution did not prove the
demand, is un-sustainable under law and facts. PW.3 and PW.4 did not support
the case of prosecution with regard to AO-2. Learned counsel for the appellants
in support of his contentions would rely upon the decisions of the Hon’ble Apex
Court in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra
Pradesh and another1 , State of Kerala and others v. C.P. Rao2 , Sujit Biswas v.
State of Assam3 , Punjabrao v. State of Maharashtra4 and B. Jayaraj v. State of
A.P5 . Learned counsel would submit that mere recovery of the tainted amount
from AO-1 is not sufficient to establish the guilt against him and further the
learned Special Judge erroneously applied Section 20 of the PC Act to Section
13(1)(d) R/w. Section 13(2) of the PC Act and it is also wholly un-sustainable.
With the above submissions, he would contend that the Appeal is liable to be
allowed.

15. Sri A. Hariprasad Reddy, learned counsel, representing Sri D.

Purnachandra Reddy, learned counsel for the Appellant/AO-2 in Criminal
Appeal No.857 of 2007, would contend that the tainted amount was not
recovered from the possession of AO-2. AO-2 set forth a defence theory that
when the complainant tried to give an amount of Rs.500/- to him, he resisted the
act of PW.1 and PW.1 went away and he would submit that there was a
possibility for AO-2 to come into contact with the phenolphthalein powder when
AO-2 warded off the tainted amount and it was not recovered from his
possession. In furtherance of the defence, DW.1 was examined, who spoke
about the conversation between AO-2 and PW.1. The learned Special Judge on
erroneous appreciation of the evidence on record disbelieved the defence

1 2016 (1) ALT (Crl.)(SC) 160 (FB)

2 2011 (6) SCC 450
3 2013 (3) ALT (Crl.)(SC) 316 (DB)
4 (2002) 10 SCC 371
5 2014 (13) SCC 55
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theory. Learned counsel would submit that AO-2 is also entitled for an acquittal.

16. Smt. A. Gayathri Reddy, learned Standing Counsel-cum-Special Public

Prosecutor for ACB, appearing for the Respondent-State, would contend that
though there is no Appeal filed by the prosecution with regard to acquittal of the
Accused Officers of the charge under Section 7 of the PC Act, but when this
Court is dealing with the Appeals with regard to Section 13(1)(d) R/w. Section
13(2) of the PC Act, it has every power to decide as to whether the evidence on
record established the demand which is a sine-qua-non for the offences under
Section 13(1)(d) R/w. Section 13(2) of the PC Act. Though the learned Special
Judge made findings that the prosecution did not prove the allegations of
demand but convicted both the Accused Officers under Section 13(1)(d) R/w.
Section 13(2) of the PC Act and when the legality of such a judgment is
impugned in these Appeals, this Court can re-appraise the evidence on record
with regard to the allegations of demand at least in respect of the offences
under Section 13(1)(d) R/w. Section 13(2) of the PC Act is concerned. The
tainted amount of Rs.1,500/- was recovered from the possession of AO-1 and
tainted amount of Rs.500/- was recovered from the possession of PW.3 and
PW.4, who did not support the case of prosecution. The defence theory set forth
by AO-1 and AO-2 is not sustainable. PW.1 had no necessity to implicate AO-1
and AO-2 falsely. There was no previous animosity existing between PW.1 and
AO-1 at one hand and AO-1 and AO-2 at the other hand. Though the learned
Special Judge disbelieved the prosecution theory under Section 7 of the PC Act
but was inclined to give conviction under Section 13(1)(d) R/w. Section 13(2) of
the PC Act against AO-1 and AO-2. Though the State did not prefer any Appeal
under Section 7 of the PC Act but this Court is not debarred from deciding as to
whether the evidence on record would prove the demand so as to constitute the
offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act. Even without
the aid of Section 20 of the PC Act, which cannot be made applicable to Section
13(1)(d) R/w. Section 13(2) of the PC Act, the evidence on record would prove
the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act against
AO-1 and AO-2 and further a charge under Section 201 IPC against AO-2. With
the above submissions, learned Standing Counsel-cum-Special Public
Prosecutor would seek to dismiss both the Appeals.

17. As seen from the report lodged by PW.1 under the cover of Ex.P-3, the
allegations were that he was looking after the affairs of Queens Bakery and
Sweets shop in RTC Complex, Dwarakanagar, Visakhapatnam having got
authorization from his aunt M. Tarakeswari. When he submitted the returns of
his shop on 30.05.2000, he did not receive the assessment order and when he
met AO-1 and asked him to issue the assessment order, he demanded the
bribe of Rs.2,000/- and directed him to pay the bribe amount on 12.06.2000.
This is the sum and substance of the allegations in Ex.P-3 report.
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18. Now, coming to the evidence of PW.1, his evidence in substance is that
he is looking after the Queens Bakery and Sweets shop in RTC Complex,
Visakhapatnam of LW.2. Ex.P-1 is the authorization, dated 18.09.1996, given to
him to look after the business. On 30.05.2000, he submitted the returns of that
business in the office of DCTO for the assessment year 1999-2000. Ex.P-2 is
the made up file in relation to his business. The DCTO at that time was AO-1.
On 09.06.2000 in the evening he met AO-1 in his office and enquired him about
his assessment order in relation to Queens Bakery and Sweets shop following
the returns submitted by him. He replied that a sum of Rs.2,000/- was to be paid
towards bribe. He expressed his inability to do so. AO-1 threatened him that he
will inspect his shop and would not issue the assessment. He asked him to
bring the bribe amount on 12.06.2000. As he was not interested to pay the
bribe, he approached the DSP, ACB and lodged a report under Ex.P-3. DSP,
ACB asked him to come to his office on 12.06.2000 along with the proposed
bribe amount of Rs.2,000/-. On 12.06.2000 at 01:30 p.m. he went to the office of
DSP, ACB where he was introduced with the mediators. Mediators confirmed
from him about the contents of the report lodged by him. He spoke of the pre-
trap events to the effect that he produced Rs.2,000/- before DSP, ACB, which
contains one five hundred rupee note and fifteen one hundred rupee notes and
mediators noted down the serial numbers in the pre-trap and he revealed that
he was having Rs.1,096/- personal cash, one bunch of keys and one mobile
phone. The DSP, ACB asked him to keep his personal cash and keys in his left
side pant pocket and mobile in his right side pant pocket. DSP, ACB instructed
Head Constable 633 to keep wad of tainted amount of Rs.2,000/- in his left side
shirt pocket, which was applied with phenolphthalein powder. The DSP, ACB
further instructed him to pay the bribe amount only on further demand by AO-1.

19. His evidence in relation to the post-trap is that when he proceeded to the
IV Floor of Udyoga Bhavan to the office of DCTO at Suryabagh and met AO-1
with a request to issue assessment order, AO-1 asked him whether the
demanded bribe amount of Rs.2,000/- was brought or not. He replied in
positive. Then, he asked to pay Rs.1,500/- to him out of Rs.2,000/- and to pay
Rs.500/- to his clerk – B. Apparao (AO-2) and to collect the assessment order
from AO-2 on the same day. Accordingly, he gave Rs.1,500/- to AO-1 and
retained Rs.500/- in the denomination of five one hundred rupee notes. AO-1
received Rs.1,500/- with his right hand and counted the same and kept it in his
right side pant pocket. When he went to the Hall, where AO-2 was seated, and
asked AO-2 to issue the assessment order, he asked him whether the bribe
amount was paid or not. He replied in positive. Then AO-2 questioned him as to
whether AO-1 directed him to pay any amount to him and accordingly, he paid
Rs.500/- to AO-2, who received the amount of Rs.500/- and put the same in his
zip bag of blue colour. Thereafter, AO-2 issued the assessment order to him.
Ex.P-4 is the assessment order issued to him by AO-2 at that time. As per the
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instructions of AO-2, he signed on the copy of the order as token of receipt i.e.,
Ex.P-4. AO-2 asked him to affix his signature and date as 16.05.2000 though it
was issued to him on 12.06.2000. Then he told him that he submitted the
returns way back on 30.05.2000 for which AO-2 replied that, DCTO (AO-1) will
make some adjustments and he was asked to affix the date as 16.05.2000. In
fact, Ex.P-4 was issued to him on 12.06.2000. Ex.P-2(a) bears his signature on
the copy of assessment order in Ex.P-2 file. Then, he came out and gave signal
to the ACB officials. The ACB officials rushed there and asked him to wait
outside and, after half an hour, he was asked to enter inside the office. He
narrated the events to the ACB officials.

20. The prosecution examined PW.2, a mediator, who supported the case of
prosecution with regard to the pre-trap and post-trap events. His evidence
insofar as the post-trap concerned is to the effect that on 12.06.2000 at 04:45
p.m. they received a signal through SI Baburao. Immediately, they rushed into
the office of AO-1 where PW.1 was present in the corridor. He was instructed to
wait there for some time. They entered into the chambers of AO-1. The DSP,
ACB disclosed his identity particulars to AO-1 and also introduced other
mediators to AO-1. On hearing the identity particulars of the DSP, ACB and
other mediators, AO-1 took out his hand from his right side pant pocket and kept
his right hand to his back. On being asked by the DSP, ACB, AO-1 revealed his
identity particulars and showed the currency notes in his right hand and on his
instructions, AO-1 handed over the currency notes to M. Prasad - (LW.12), a
mediator. When the DSP, ACB got conducted chemical test to both hand
fingers of AO-1, it yielded positive result. The denomination of the currency
notes were tallied with the pre-trap proceedings. The narration of AO-1 was
incorporated in the post-trap proceedings. The version of PW.1 was also
incorporated in post-trap proceedings. The version of AO-1 was confronted with
PW.1. On the basis of the statement made by PW.1, the DSP, ACB along with
other mediators went to the room of AO-2 and on seeing the ACB officials, AO-2
became speechless and he started rubbing his hands to the handles of the
chair. The DSP, ACB asked AO-2 to disclose his identity particulars and
accordingly he disclosed his identity particulars. When the DSP, ACB got
conducted chemical test to both hand fingers of AO-2, it yielded positive result.
AO-2 stated that he kept the money in a zip bag and it was kept with a tea bunk
owner - K. Trinadh (LW.3) on hearing about the AO-1 being trapped by the ACB
officials. AO-2 led the raid party to LW.3 and pointed out LW.3 - tea stall owner
as receiver of the zip bag. Statement of LW.3 was accordingly recorded. LW.3
disclosed that he handed over the zip bag to his wife – K. Padma (LW.4) who
was waiting in the ground floor. Then, they went to LW.4 and brought her back.
She handed over the zip bag to AO-2, who in turn opened the zip bag and took
the tainted amount of Rs.500/- and gave it to the mediator. The serial numbers
therein were tallied with the numbers mentioned in the pre-trap proceedings.
The chemical test conducted to the inner linings of the zip bag yielded positive
result. The zip bag was also seized by the DSP, ACB, which was marked as
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MO.10. The DSP, ACB conducted chemical test to the right side pant pocket of
AO-1 which yielded positive result. The DSP, ACB examined the version of
PW.3 and his wife and it was incorporated in the post-trap proceedings. He
further spoke of the seizure of records from the possession of AO-1 and AO-2.

21. It is a fact that PW.3 – Tea bunk owner and PW.4 – wife of PW.3 did not
support the case of prosecution. The prosecution got declared them as hostile.
However, during their cross-examination their statements under Exs.P-17 and
P-18 were marked by way of confrontation.

22. Prosecution examined PW.5, the Assistant Commercial Tax Officer, who
testified that AO-1 – Deputy Commercial Tax Officer and AO-2 – Senior
Assistant worked in the DCTO Circle, Suryabagh Branch, Visakhapatnam.
DCTO is empowered to assess business turnover from rupees two lakhs to ten
lakhs. Sales Tax is exempted for secondary sales with respect to Bakery and
confectionaries. He had the jurisdiction between the Jail Road and Poorna
Market. RTC Complex comes within the jurisdiction of DCTO, Suryabagh.
th
The
assessment under Ex.P-2 has to be filed on or before 30 April and the
assessment order has to be issued within a period of one month from the date
of filing of assessment by shop keeper. Ex.P-2(a) is dated 16.05.2000. AO did
not bring to his notice about the assessment made by PW.1. On 12.06.2000, he
was in the office of DCTO, Suryabagh, Visakhapatnam. He was examined by
the DSP, ACB, and his statement was recorded in the post-trap proceedings.

23. PW.6 is the Trap Laying Officer, who spoke of the registration of FIR on
the basis of Ex.P-3 report and he spoke of the pre-trap and post-trap events.
His evidence is similar with that of the evidence of PW.2 – the mediator.

24. The learned defence counsel examined DW.1 before the trial court and
he was mainly examined to speak of the conversation between AO-2 and PW.1.
His evidence in substance is that in the month of June, 2000, he was in his
office at the time of ACB raid against the Accused Officers. He knows that PW.1
was running Crown (sic) Bakery in RTC Complex, Visakhapatnam. On the date
of raid at about 04:00 p.m. he went to the seat of AO-2 to collect white papers
and found PW.1 near the table of AO-2. While he was collecting white papers,
he heard that PW.1 was asking AO-2 to settle his case with the DCTO and also
offering him some amount, for which AO-2 replied to PW.1 that he can settle his
matter with DCTO directly. He went to computer room after collecting white
papers and at the same time PW.1 left the place and went towards Chambers of
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AO-1. Half an hour later, while he was in the computer room, ACB officials
called him and other staff members and he was orally examined by the ACB
officials. He can identify the carriage bag of AO-2 as he used to get carriage in
that bag. MO.10 is the zip bag shown to the witness. He stated that MO.10 was
not the carriage bag of AO-2 as he never saw MO.10 bag or similar bag with
AO.2.

25. Admittedly, it is a case where the prosecution presented two occasions

where AO-1 was alleged to have demanded PW.1 to pay the bribe of
Rs.2,000/-. First demand was on 09.06.2000 with a direction to PW.1 to bring
the bribe amount on 12.06.2000. The second demand was on 12.06.2000
during the post-trap to the effect that AO-1 demanded PW.1 to pay Rs.1,500/-
out of Rs.2,000/- to AO-1 and the rest of Rs.500/- to AO-2 to get the
assessment order. The allegation of demand against AO-2 was on 12.06.2000
during the post trap where he demanded PW.1 to pay bribe of Rs.500/- and
upon payment of the same, he issued the assessment order. It is a fact that
PW.1 spoke of both the demands i.e., 09.06.2000 and 12.06.2000 against AO-1
and further demand on 12.06.2000 against AO-2. The findings of the learned
Special Judge were that there was no corroboration to the evidence of PW.1
with regard to the demand dated 09.06.2000 and further the demand dated
12.06.2000 and ultimately the findings of the learned Special Judge were that
the prosecution failed to prove the allegations of demand of bribe against AO-1
and AO-2. The peculiar features of the judgment further were that the learned
Special Judge convicted both the Accused Officers for the charge under Section
13(1)(d) R/w. Section 13(2) of the PC Act.

26. Proving of demand is a sine-qua-non to establish the guilt under Section

13(1)(d) R/w. Section 13(2) of the PC Act. As rightly pointed out by the learned
Standing Counsel for the Respondent-State, it is absolutely within the province
of this Court to decide in both the Appeals which arose against the conviction
and sentence under Section 13(1)(d) R/w. Section 13(2) of the PC Act as to
whether the evidence on record would establish the demand. Though this Court
is handicapped now to deal with the allegations under Section 7 of the PC Act
for want of any Appeal by the prosecution/State but as the legality of the
conviction and sentence is under challenge in the present Appeals, this Court
can as well re-appraise the evidence on record to decide whether the evidence
on record established the demand, which is a sine-qua-non for the offence
under Section 13(1)(d) R/w. Section 13(2) of the PC Act.

27. Turning
st
to the decision of Hon’ble Apex Court in P. Satyanarayana
Murthy (1 supra), the Hon’ble Apex Court held that mere possession and
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91

recovery of the currency notes from the accused, without proof of demand,
would not establish the offences under Sections 7 and 13 of the PC Act. Apart
from this, stin view of the decision of Hon’ble Apex Court in P. Satyanarayana
Murthy (1 supra), a presumption under Section 20 of the PC Act cannot be
drawn insofar as the charge under Section 13(1)(d) R/w. Section 13(2) of the
PC Act is concerned.thIt was also laid down in the decision of the Hon’ble Apex
Court in B. Jayaraj (5 supra) that applicability of Section 20 of the PC Act can
only prove the offence under Section 7 of the PC Act but not under Section
13(1)(d) R/w. Section 13(2) of the PC Act. Needless to point out here that the
learned Special Judge took aid of Section 20 of the PC Act so as to convict the
Accused Officers under Section 13(1)(d) R/w. Section 13(2) of the PC Act.
Apart from this the Hon’ble Apex Court in Neeraj Dutta v. State (Government of
NCT of Delhi)6 , categorically held that Section 20 of the PC Act does not apply
to Section 13(1)(d)(i)(ii) of the thPC Act. According to the decision of the Hon’ble
Apex Court in Neeraj Dutta (6 supra), demand is a sine-qua-non to establish
the charge under Section 13(1)(d) R/w. Section 13(2) of the PC Act.

28. Now, as the legality of the judgment under Section 13(1)(d) R/w. Section
13(2) of the PC Act is under challenge, I would like to re-appreciate the
evidence on record as to whether the evidence on record would prove the
allegations of demand so as to constitute the offence under Section 13(1)(d)
R/w. Section 13(2) of the PC Act. With regard to pendency of official favour, the
case of the prosecution is that PW.1 submitted the returns on 30.05.2000 but
AO-1 did not issue the assessment order and he demanded the bribe on
09.06.2000 as well as on 12.06.2000 and in pursuance of such demands, PW.1
paid Rs.1,500/- to AO-1 and in pursuance of the demand of AO-1, he
approached AO-2 where he demanded bribe of Rs.500/- and accordingly he
paid Rs.500/- to AO-2. It is to be noted that corroboration to the testimony of
PW.1 can be in any form. It is a case where the prosecution has come up with a
case that tainted amount of Rs.1,500/- was recovered from AO-1 physically and
both the hand fingers of AO-1 and inner linings of trouser pocket of AO-1 also
yielded positive result. There is no dispute that the tainted amount of Rs.1,500/-
was recovered from the possession of AO-1 and his both hand fingers yielded
positive result and further the inner linings of the right trouser pocket of AO-1
also yielded positive result. These circumstances corroborate the evidence of
PW.1, in my considered view.

29. Coming to the thrusting theory set forth by AO-1 during the course of
cross-examination, PW.1 denied that when he put some amount on the table of
AO-1, AO-1 asked him that he need not pay any amount and asked him to go to
AO-2 to pick up the assessment order and after some time PW.1 met the AO-1
and tried to handover the amount and when AO-1 warded off the attempt of
PW.1, he forcibly kept the tainted amount of Rs.1,500/- into the trouser pocket

6 (2022) SCC OnLine SC 1724

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of AO-1. PW.1 denied such a defence theory. The defence of AO-2 before
PW.1 was that he tried to give the amount of Rs.500/- and he warded off his
attempt and then PW.1 went away. So, the defence of AO-2 was that when he
warded of the attempt of PW.1 to receive the amount of Rs.500/-, his hands
might have touched the phenolphthalein powder. It is to be noted that PW.1
testified the demand dated 12.06.2000 against AO-1 and AO-2 during the
course of evidence. It is to be noted that according to the evidence of PW.5, an
assessee under the Commercial
th
Tax Department was supposed to file the
returns on or before 30 April. The evidence of PW.1 was that he submitted the
returns on 30.05.2000 but he was handed over the assessment order on
12.06.2000 with ante date. The defence of Accused Officers was that
deliberately PW.1 carried the assessment order which he received on
16.05.2000 during the post-trap without knowledge of the ACB officials. It is very
difficult to accept such a contention. The evidence of PW.5 regarding the
procedural th
aspects that the assessment returns were to be submitted on or
before 30 April was not challenged by the Accused Officers. When that is the
situation, it is not understandable as to how AO-1 could receive the assessment
documents on 16.05.2000. It is quite improbable to assume that when PW.1
made the assessment application on 16.05.2000, on the same day both the
Accused Officers processed the same. So, it goes to show that out of innocence
or otherwise, PW.1 could not submit the returns on or before 30.04.2000 but he
could submit the same at the end of May, 2000 but the fact remained is that the
signatures of PW.1 were obtained with antedate as 16.05.2000.

30. The evidence of PW.1 disclosed that he voluntarily intimated to the DSP,
ACB at the time of post–trap about the personal cash and also mobile phone
and the DSP, ACB took precautions to say that his personal cash was to be
kept in another pocket. Absolutely, PW.1 had no motive at all to file a false case
against the Accused Officers. There was no animosity existing between PW.1
and AO-1 at one hand and AO-1 and AO-2 at another hand. When PW.1 had a
valid authorization from LW.2 – M. Tarakeswari to look after the business affairs
of Queens Bakery and Sweets, AO-1 had no business to insist for the presence
of original assessee. Absolutely, there was no necessity for AO-1 to insist for
the presence of original assessee. If the presence of original assessee was
required, there was no possibility for AO-1 to cause issuance of Ex.P-2(a) –
assessment order. So, his defence that when he insisted for the presence of
original assessee, he was falsely implicated cannot stand to any reason.
Absolutely, there were no doubtful circumstances in the evidence of PW.1 to
disbelieve his testimony. The prosecution with consistent evidence proved the
pendency of official favour.

31. The oral evidence of PW.1 with regard to the allegations of demand had
corroboration from other aspects i.e., recovery of the tainted amount from AO-1
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93

and further recovery of the tainted amount from PW.4 at the instance of AO-2.
Though PW.3 and PW.4 did not support the case of prosecution, there is
evidence of PW.2, independent mediator, who acted as a mediator for the first
time in ACB trap case that AO-2 during the post-trap proceedings disclosed that
he handed over tainted amount which was kept in the zip bag to PW.3 and
PW.3 disclosed that he handed over the zip bag to PW.4. PW.2 - the mediator,
who acted as a mediator for the first time in ACB trap case, had no reason to
depose false. The evidence of PW.2 and PW.6 – Trap Laying Officer is quite
consistent throughout. So, both hand fingers of AO-2 yielded positive result
when they were subjected to chemical test. In my considered view, the
testimony of PW.1 with regard to his allegations of demand of bribe against
AO-1 and AO-2 had support from various circumstances referred to above.

32. The findings of the learned Special Judge that the prosecution did not
prove the allegations of demand are not at all sustainable on facts. It is to be
noted that, according to the settled legal position, proof of demand is a sine-qua-
non even to prove the charge under Section 13(1)(d) R/w. Section 13(2) of the
PC Act. As the very conviction and sentence is impugned in both these
Appeals, this Court has every power to re-appraise the evidence to decide as to
whethertheevidenceonrecordwouldestablishthedemandwhichisasine-qua-
non to prove the offence under Section 13(1)(d) R/w. Section 13(2) of the PC
Act. Hence, this Court would like to differ with the findings of the learned Special
Judge that the prosecution did not prove the allegations of demand. Having
given such a finding, the learned Special Judge bent upon to convict the
Accused Officers under Section 13(1)(d)R/w. Section 13(2) of the PC Act. As
the very conviction and sentence is under challenge, now this Court on re-
appraisal of the entire evidence on record with regard to Section 13(1)(d) R/w.
Section 13(2) of the PC Act is of the considered view that the evidence of PW.1
proved the allegations demand against AO-1 and AO-2 on the date of trap i.e.,
12.06.2000.

rd
33. Turning to the decision of the Hon’ble Apex Court in Sujit Biswas (3
supra), cited by learned defence counsel, this court admits that a conviction
cannot be based on mere surmises and conjectures or suspicion. As the
prosecution in this case established the charge under Section 13(1)(d) R/w.
Section 13(2) of the PC Act and also under Section 201 IPC, withrdconsistent
evidence, the decision of the Hon’ble Apex Court in Sujit Biswas (3 supra), is
of no use to the contention of theth defence. Turning to the decision of the
Hon’ble Apex Court in Punjabrao (4 supra), it has no application to the present
case on hand as the defence of both the Accused Officers is notndat all tenable.
Turning to the decision of the Hon’ble Apex Court in C.P. Rao (2 supra), it is a
case where the complainant could not be examined by the prosecution and in
such circumstances, the Hon’ble Apex Court declined to interfere with the order
 Digital High Court Reports
94

nd
of acquittal. The facts in C.P. Rao (2 supra) cannot be made applicable to the
present case on hand as in this case the complainant was examined and fully
supported the case of prosecution.

34. As pointed out, the prosecution did not file any Appeal challenging the
order of acquittal of AO-1 and AO-2 of the charge under Section 7 of the PC
Act. In view of the above reasons, this Court is of the considered view that the
evidence on record categorically proved the charge under Section 13(1)(d) R/w.
Section 13(2) of the PC Act against AO-1 and AO-2.

35. Turning to the charge under Section 201 IPC against AO-2, the evidence
of PW.2 - the mediator and the evidence of PW.6 – Trap Laying Officer would
establish the fact that on sensing that ACB trap party rushed into the office of
Accused Officers, AO-2 with a deliberate intention, handed over the zip bag to
PW.3, who in turn passed over the same to PW.4. Though PW.3 and PW.4
turned hostile, there is categorical evidence of PW.2 and PW.6 in this regard.
So, prosecution established further that AO-2 with an intention to screen away
the offence under Section 13(1)(d) R/w. Section 13(2) of the PC Act, handed
over the zip bag to PW.3, who in turn passed over the same to PW.4. Hence, in
the considered view of this Court, the evidence on record is sufficient to convict
and sentence the AO-2 for the charge under Section 201 IPC.

36. In the light of the above, I am of the considered view that the evidence
adduced by the prosecution is cogent and believable so as to sustain the
conviction under Section 13(1)(d) R/w. Section 13(2) of the PC Act and also
under Section 201 IPC as such there are no merits in both these Appeals. The
points are answered accordingly.

37. In the result, both these Criminal Appeal are dismissed.

38. The Registry is directed to take steps immediately under Section 388

Cr.P.C to certify the common judgment of this Court along with the trial Court

record, if any, to the learned III Additional District and Sessions Judge-cum-

Special Judge for ACB Cases, Visakhapatnam on or before 31.01.2024 and on

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95

such certification, the learned Special Judge shall take necessary steps to carry

out the remaining sentence imposed against the Appellant in Criminal Appeal

No.857 of 2007 i.e., Accused Officer No.2 in C.C. No.29 of 2001, dated

21.06.2007, and to report compliance to this Court. A copy of this judgment be

placedbeforetheRegistrar(Judicial),forthwith,forgivingnecessaryinstructions

to the concerned Officers in the Registry.

39. As the Appellant in Criminal Appeal No.858 of 2007 i.e., AO-1 is no more,

there is no need to take any further steps insofar as Criminal Appeal No.858 of

2007 is concerned.

Consequently, Miscellaneous Applications pending, if any, shall stand closed.

Result of the case

The Criminal Appeals are dismissed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 96 : 2024:APHC:6150
Dadi Prasada Rao
Vs.
State of Andhra Pradesh
(Criminal Petition 3375 of .2021)
23 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether the case against the Petitioners/A.2 to A.5 for the offences
punishable under Section 498-A of Indian Penal Code, 1860 and Sections 3
and 4 of the Dowry Prohibition Act, 1961 is liable to be quashed by
exercising jurisdiction under Section 482 of the Criminal Procedure Code,
1973?

Headnotes

Section 498-A of Indian Penal Code, 1860 – FIR registered under section
498-A IPC and sections 3 & 4 of Dowry Prohibition Act, against A1 to A5, on
the allegations that A1 harassed the defacto-Complainant physically with a
demand for additional dowry and to bequeath the land given to her as
pasupu kukuma, in his name and also suspecting fidelity and necked her out
of matrimonial home, at the instigation of his relatives and also gave her
biodata in matrimony by mentioning that she got divorce. A2 to A5 filed
petition to quash the proceedings.

Held: The material on record prima facie discloses that there are clear
allegations against Petitioners 1 and 2 that they along with Accused No.1
subjected the De-facto Complainant to cruelty by demand of additional
dowry and it is not a fit case to entertain the quashment against them. No
specific allegations against the Petitioners 3 and 4/Accused Nos.4 and 5 –
Petition partly allowed – Criminal proceedings against Petitioners 3 and
4/Accused Nos.4 and 5 allowed and Criminal proceedings against
Petitioners 1 and 2/Accused Nos.2 and 3 dismissed. (Para Nos.15,16)

Acts
 Digital High Court Reports
[2024] 1 A.P.L.R. 97

Indian Penal Code, 1860; Dowry Prohibition Act, 1961; Criminal Procedure
Code, 1973

Keywords

Cruelty, Demand of additional dowry; Suspecting the fidelity; Omnibus

allegations against Married sisters; Quashing of Criminal Proceedings.

Case Law/Reference Cited

Kans Raj vs State of Punjab, K.Subba Rao vs State of Telangana, Shaik Arifa vs State of
Andhra Pradesh

Appearances For Parties

For Appellant: Sri S.B.Siva

For Respondents: Assistant Public Prosecutor for R.1

Sri N.Srihari for R.2

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has been
filed by the Petitioners/Accused Nos.2 to 5, seeking quash of proceedings
against them in C.C.No.1739 of 2020 on the file of the Court of VI Additional
Junior Civil Judge, Guntur, which was registered for the offences punishable
under Section 498-A of the Indian Penal Code, 1860 and Sections 3 and 4 of
the Dowry Prohibition Act, 1961.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

1
1973 has been filed, by the Petitioners/Accused Nos.2 to 5, seeking

1 in short 'Cr.P.C'
 Digital High Court Reports
98

quashment of proceedings against them in C.C.No.1739 of 2020 on the

file of the Court of VI Additional Junior Civil Judge, Guntur, which was
registered for the offence punishable under Section 498-A of the Indian
2
Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act3 .

2. Petitioners herein are Accused Nos.2 to 5 in the above C.C and

they are the parents-in-law and sisters-in-law of Respondent No.2/de
facto complainant.Petitioners herein are Accused Nos.2 to 5 in the above C.C
and they are the parents-in-law and sisters-in-law of Respondent No.2/de

facto complainant.

3. Brief facts of the case are as follows:

a. The parents of the de facto complainant performed her marriage

with Accused No.1 on 29.04.2018. As per the demand of Accused Nos.1
to 3, the parents of the de facto complainant gave cash of Rs.8,00,000/-
towards dowry and also gave Ac.0.15 cents of land to the de
facto complainant towards Pasupu Kumkuma. Soon after the marriage,
the de facto complainant joined Accused No.1 and after three months,
Accused No.1 started harassing the de facto complainant physically by
demanding additional dowry and also to bequeath the land, which was
given towards Pasupu Kumkuma, in his name. Accused No.1 used to
come in drunken state, beat the de facto complainant by suspecting her
fidelity and dropped her at her parental home in Guntur. After
negotiations by the marriage elders with Accused Nos.1 to 3, the de
facto complainant was sent to the matrimonial home, but there was no
change in the attitude of Accused Nos.1 to 3. Though the de

2 in short 'I.P.C.'
3 in short 'D.P.Act'
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99

facto complainant was blessed with a son, Accused Nos.1 to 3 did not
come to see the child. Accused No.1 and his relatives gave the bio-data
of the de facto complainant in Kalyani Matrimony by mentioning that she
got divorce.

b. On the complaint given by the de facto complainant, Police gave

counseling to Accused No.1 and the de facto complainant, but Accused
No.1 did not take the de facto complainant to the marital fold and
moreover got sent Court notices to her. Previously when the de
facto complainant gave complaint in Women Police Station, Guntur
Urban, Accused Nos.1 to 5 came and assured to look after the de
facto complainant well, but they failed to do so.

c. Based on the report submitted by the de facto complainant, a case

in Crime No.29 of 2020 was registered against Accused Nos.1 to 5 for the
offences under Section 498-A IPC and Sections 3 and 4 of D.P.Act. After
investigation of the case, a charge sheet was filed before the Court of VI
Additional Junior Civil Judge, Guntur for the above said offences and the
same was numbered as C.C.No.1739 of 2021.

4. This C.C.No.1739 of 2021 is sought to be quashed by Petitioners/

Accused Nos.2 to 5 on the following grounds;

a. The petitioners are no way concerned with the alleged offence of

dowry harassment meted out against Respondent No.2/ de
facto complainant.
 Digital High Court Reports
100

b. Even according to the FIR and the contents of charge sheet, no

single instance of harassment is made against the petitioners but only a
bald allegations was made that the petitioners harassed the de
facto complainant for additional dowry.

c. In the absence of any allegation of demand of additional dowry by the

petitioners, the offence under Section 498-A IPC and Sections 3 and 4 of
the D.P.Act are not attracted. There is no incriminating material to
connect the petitioners with the crime.

d. Petitioner Nos.1 and 2/Accused Nos.2 and 3 are old aged and are
suffering from ailments and they are advised to take regular treatment

e. Petitioners 3 and 4/Accused Nos.4 and 5 are the married sisters of

Accused No.1 and they are living with their respective families and as
such it cannot be presumed that they have harassed the de
facto complainant for additional dowry.

f. To harass the petitioners and to wreak vengeance against the

Accused No.1, they are falsely implicated in the above case by the de
facto complainant.

Arguments Advanced at the Bar

5. Heard Sri S.B.Siva, learned counsel for the petitioners, Ms.

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101

PrasannaLakshmi,learnedAssistantPublicProsecutorrepresentingthe
State/Respondent No.1 and Sri N.Srihari, learned counsel for
Respondent No.2/de facto complainant.

6. Learned counsel for the petitioners would submit that there are no
specific allegations made out either in the complaint or in the charge
sheet against the petitioners that they have committed the alleged
offence. Therefore, continuation of criminal proceedings against the
petitioners is an abuse of process of law and prayed to quash the
proceedings against the petitioners.

7. Per contra, learned Assistant Public Prosecutor would submit that

there are specific allegations which would attract the alleged offences
against the petitioners, as such, quashing of proceedings at this stage is
not tenable. Hence, prayed to dismiss the petition.

8. Learned counsel for Respondent No.2 would also submit

that there are specific allegations against the petitioners. However,
submitted that Petitioners 3 and 4/Accused Nos.4 and 5 are residing
separately with their respective families.

Point for Determination

9. Having heard the submissions made by the learned counsels and

on perusal of the material available on record, the point for determination
that arises in this case is as follows;
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102

Whether the case against the Petitioners/A.2 to A.5 in C.C.No.1739 of

2020 on the file of the Court of VI Additional Junior Civil Judge, Guntur for
the offence punishable under Section 498-A IPC and Sections 3 and 4 of
D.P.Act, is liable to be quashed by exercising jurisdiction under Section
482 of the Cr.P.C.?

Determination by the Court

10. Before delving into the instant case, it is appropriate to chalk out
certain settled principles of law in the exercise of jurisdiction under
Section 482, which reads as follows;

Section 482- Saving of inherent powers of High Court

“Nothing in this Code shall be deemed to limit or affect the inherent

powers of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.”

11. A bare perusal of Section 482 makes it clear that the Code
envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect to
any order under the Code or, (ii) to prevent abuse of the process of any
Court or, otherwise (iii) to secure ends of justice. A court while sitting in
Section 482 jurisdiction is not functioning as a court of appeal or a court
of revision. It must exercise its powers to do real and substantial justice,
depending on the facts and circumstances of the case. These powers
must be invoked for compelling reasons of abuse of process of law or
glaring injustice, which are against sound principles of criminal
jurisprudence.
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103

12. In the context of the quashment of proceedings initiated against

relatives of husband, it is relevant to refer to the judgment of Hon’ble
Apex Court in Kans Raj v. State Of Punjab4 , wherein, it was held as
follows:-

“For the fault of the husband, the in-laws or the other relations cannot, in
all cases, be held to be involved in the demand of dowry. In cases where
such accusation are made, the overt acts attributed to persons other than
husband are required to be proved beyond reasonable doubt. By mere
conjectures and implications such relations cannot be held guilty for the
offence relating to dowry deaths. A tendency has, however, developed for
roping in all relations of the in-laws of the deceased wives in the matters
of dowry deaths which, if not discouraged, is likely to affect the case of
the prosecution even against the real culprits. In their over enthusiasm
and anxiety to seek conviction for maximum people, the parents of the
deceased have been found to be making efforts for involving other
relations which ultimately weaken the case of the prosecution even
against the real accused as appears to have happened in the instant
case.”

13. In K. Subba Rao v. State of Telangana 5 , the Hon'ble Apex Court held
thus

“5. Criminal proceedings are not normally interdicted by us at the

interlocutory stage unless there is an abuse of the process of a court This
Court, at the same time, does not hesitate to interfere to secure the ends
of justice. See State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]. The courts should be
careful in proceeding against the distant relatives in crimes pertaining to
matrimonial disputes and dowry deaths. The relatives of the husband
should not be roped in on the basis of omnibus allegations unless specific
instances of their involvement in the crime are made out. See Kans Raj v.
State of Punjab [Kans Raj v. State of Punjab, (2000) 5 SCC 207 : 2000
SCC (Cri) 935] and Kailash Chandra Agrawal v. State of U.P. [Kailash
Chandra Agrawal v. State of U.P., (2014) 16 SCC 551 : (2015) 3 SCC
(Cri) 536].

4 AIR 2000 SC 2324

5 AIR 2018 SC 4009
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104

14. In Shaik Arifa v. State of Andhra Pradesh6 , this Court held as

follows:

“11. Time and again, the Hon'ble Apex Court and this court categorically
held that where the allegations in the report are vague, sweeping and
general, except bald allegation that the petitioners supported A.1 to
subject the defacto complainant to cruelty, there is absolutely nothing
mentioned as against them and no specific act has been attributed to any
of the accused.

12. Constitution Bench of the Hon'ble Supreme Court held that number of
cases are registered for the offence punishable under Section 498A IPC
and there is alarming rise in the said offences. In the complaint filed by
the wife, entire family members belonging to the husband are being roped
in only with a view to settle scores as against the other family”.

15. In the instant case, it is alleged in the charge sheet as well as on

the complaint lodged by the de facto complainant that the petitioners
used to support Accused No.1 while he was harassing her by demanding
additional dowry and to get the land, which was given by her parents
towards Pasupu Kumkuma, in the name of Accused No.1. However,
admittedly, Petitioners 3 and 4/Accused Nos.4 and 5 are the married
sisters of Accused No.1 and they have been residing with their
respectively families. Learned counsel for Respondent No.2 also
conceded to the same. Except omnibus allegations, there are no specific
overt acts attributed against Petitioners 3 and 4/Accused Nos.4 and 5.

16. The allegations against the petitioners 1 and 2/Accused Nos.2 and
3 are that they supported Accused No.1 when he was subjecting her to
cruelty both physically and mentally for additional dowry. Though the

6 2022 SCC OnLine AP 2162

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105

petitioners 1 and 2/Accused Nos.2 and 3 along with Accused No.1

assured before the elders that they will see her fairly, they did not change
their attitude. The material on record prima facie discloses that there are
clearallegationsmadeagainstthepetitioners1and2/AccusedNos.2and
3 that they along with Accused No.1 subjected the de
facto complainant to cruelty by demanding additional dowry. The truth or
otherwise of the allegations leveled against the petitioners 1 and
2/Accused Nos.2 and 3 would be revealed during trial. When there is a
material to proceed further against the petitioners 1 and 2/Accused Nos.2
and 3, it is not a fit case to entertain the quashment against them.
However, as stated supra, since there are no specific allegations against
the petitioners 3 and 4/Accused Nos.4 and 5, the proceedings against
them can be quashed.

17. In result, the Criminal Petition is partly allowed. The proceedings

against Petitioners 3 and 4/Accused Nos.4 and 5 in C.C.No.1739 of 2020
on the file of the Court of VI Additional Junior Civil Judge, Guntur, for the
offences punishable under Section 498-A IPC and Sections 3 and 4 of
the Dowry Prohibition Act, are hereby quashed. This Criminal petition as
against the Petitioners 1 and 2/Accused Nos.2 and 3, is hereby
dismissed.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is partly allowed.

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106

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 107 : 2024:APHC:6153
B SARITHA RAJYA LAKSHMI
Vs.
STATE OF AP
(Criminal Petition 443 of .2020)
25 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether there are any justifiable grounds for quashment of

proceedings against the Petitioner who is not a family member or
relative of the husband for the offence punishable under Sections
498-A and 109 Indian Penal Code, 1860?

Headnotes

Sections 498-A and 109 of Indian Penal Code, 1860 – Respondent

No.2 made allegations of harassment against Accused No.1 and
others including instigation by Petitioner/Accused No.5, who is a family
friend and not a family member nor relative of husband/Accused
No.1.

Held: Except some stray and wild allegations, nothing has been stated
in specific against the petitioner so as to attract the offence alleged.
Therefore, offence under Section 498-A and 109 Indian Penal Code,
1860 cannot be attributed against the petitioner – Criminal
proceedings against Petitioner/Accused No.5 are quashed – Criminal
Petition is allowed (Para Nos. 10 & 11)

Acts

Indian Penal Code, 1860

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[2024] 1 A.P.L.R. 108

Keywords

Cruelty by husband or relative of husband, stray and wild allegations,

No specific allegations, quashing of criminal proceedings.

Case Law/Reference Cited

Venkata Naga Malleswari Anamaripudi vs State of Andhra Pradesh, U.Suvetha vs State

rep by Inspector of Police & Another

Appearances For Parties

For Appellant: Sri Venkat Challa

For Respondents: Ms.D.Prasanna Lakshmi,

Assistant Public Prosecutor – R.1

Sri V.Hemanth Kumar – R.2

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has

been filed, by the Petitioners/Accused Nos.5, seeking quashment of
proceedings against her in Cr.No.3 of 2020, on the file of Women
Police Station, Visakhapatnam registered for the offences punishable
under Sections 498-A & 109 of the Indian Penal Code, 1860.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed by the Petitioner/Accused No.5, seeking

quashment of proceedings against her in Cr.No.3 of 2020, on the file

of Women Police Station, Visakhapatnam registered for the offences

1 for short 'Cr.P.C'

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punishable under Sections 498-A & 109 of the Indian Penal Code,
18602 .

2. The brief facts which led to the filing of this petition are:

a. The de facto complainant was married to Accused No.1 on

21.08.2008 at Luthergiri Church, Rajahmundry and it was a love
marriage with the consent of elders on both sides. After the marriage,

the de facto complainant joined Accused No.1 at UAE to lead marital

life and during their stay at UAE, Accused No.1 introduced one
Srinivas Behara and his wife who is the Petitioner/Accused No.5 as his

colleague. Thereafter, due to differences between Accused No.1 and

the family of the petitioner, the talks and terms have become limited.

b. During wed lock, the de facto complainant gave birth to a female

child, due to which her in-laws taunted and Accused No.1 did not

support the de facto complainant on this.

c. Out of necessity, the de facto complainant had taken up a job in

First Gulf Bank, Dubai. At that time, the family of the petitioner again
started friendship with Accused No.1. During second pregnancy,
Accused No.1 left the de facto complainant at her parental home.

Since then Accused No.1 started neglecting the de facto complainant

and their children. During that time, Accused No.1 developed personal
and physical intimacy with the Petitioner and completely neglected the

de facto complainant.

2 for short 'IPC'

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d. Accused No.1 used to visit Visakhapatnam secretly several

times to meet the petitioner. After giving birth to another female child,

at the instigation of the petitioner and the mother of the de

facto complainant, Accused No.1 used to abuse the de
facto complainant and subject her to mental and physical stress.

e. In April, 2017 the petitioner and her family joined the de

facto complainant and stayed in their home stating that they came for

summer vacation and since then, Accused No.1 and the petitioner
jointly started harassing by abusing her. Though the husband of the
petitioner asked her to come to their house in UAE, she refused to do

so and stayed in the house of the de facto complainant. Since then,

petitioner used to behave like the wife of Accused No.1. The de

facto complainant was abused by Accused No.1 and the petitioner.

f. Having come to know about all these incidents, the brother of the

de facto complainant came to Dubai and brought the de

facto complainant and her kids to India.

g. With the support of the petitioner, Accused No.1 completely

neglected the de facto complainant and her children. Hence,
Respondent No.2 lodged a complaint with Women Police Station,

Visakhapatnam which was registered as a case in Crime No.3 of 2020

for the offences under Sections 498-A and 109 IPC.

4. The present petition is filed to quash the proceedings against

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the Petitioner with the following grounds;

a. The allegations made in the complaint do not make out any case

against the petitioner.

b. The petitioner is no way related to the family of Respondent No.1 nor

involved in their affairs and as such, implication of petitioner in the
present case is nothing but abuse of process of law.

c. Except some stray and wild allegations, nothing has been stated in
specific against the petitioner so as to attract the alleged offense.

d.The present complaint is maliciously instituted with an ulterior motive to

wreak vengeance against the petitioner.

Arguments Advanced at the Bar

5. Heard Sri S.V.Maruthi Sankar, learned counsel representing Sri

Venkat Challa, learned counsel for the petitioner, Ms.D.Prasanna
LakshmilearnedAssistantPublicProsecutorfortheState/Respondent
No.1 and Sri V.Hemanth Kumar, learned counsel for Respondent
No.2.

6. Learned counsel for the petitioner would submit that allegations

made in the complaint are not true and correct and the same do not

make out any case against the petitioner. He would also submit that
the petitioner hails from a reputed family and is not having any criminal
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antecedent and that the present proceedings initiated are nothing but
vexatious.

7. Per contra, learned counsel for Respondent No.2 would submit

that that there are no grounds to quash the proceedings against the

petitioner and thorough investigation is required in this matter to

ascertain the truth or otherwise of the allegations made in the
complaint. Hence, prayed to dismiss the petition. Learned Assistant

Public Prosecutor conceded to the arguments submitted by the

learned counsel for Respondent No.2.

Point for Determination

8. Having heard the submissions of the learned counsel

representing both the parties, the point that would emerge for
determination is:

Whether there are any justifiable grounds for quashment of

proceedings in Crime No.3 of 2020 against the Petitioner for the
offence punishable under Sections 498-A and 109 IPC?

9. It is pertinent to note that, to invoke the inherent jurisdiction of

the Court under Section 482 Cr.P.C., specific circumstances must be
present. To identify these specific circumstances, it is essential to

discuss some precedents. The decision rendered by the Hon’ble Apex

Court in State of Haryana and others v. Bhajanlal and others3 is
considered as the guiding torch in the application of Section 482

Cr.P.C. At paras 102 and 103, the circumstances are spelt out as

3 AIR 1992 SC 604

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follows:

“102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
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(5) 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.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases; that
the court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act according to its
whim or caprice.”

(emphasis supplied)

10. A perusal of the contents of the complaint and the submissions

made by the learned counsel for the petitioner reveal that the petitioner
is no way related to family of Respondent No.2. This Court in Venkata
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Naga Malleswari Anamaripudi v. State of A.P., 4 observed that Section

498-A of I.P.C. is a powerful weapon engrafted by the law, to the

rescue of a married woman, subjected to cruelty or harassment by

husband or by the relative of husband. Further, this Court having
referred the decision of the Hon’ble Apex Court in U. Suvetha v.

State5 , interpreted the term “relative” as appearing in Section 498A of

I.P.C. to mean persons related by blood, marriage or adoption.

11. Moreover, except some stray and wild allegations, nothing has
been stated in specific against the petitioner so as to attract the
offences alleged. Therefore, offence under Section 498-A and 109 IPC

cannot be attributed against the petitioner. In view of the guideline

No.1 in Bhajanlal’s case (supra), the allegations made in the FIR or

complaint do not disclose the commission of any offence and make out
a case against the petitioner. There are valid legal grounds emanating
from the record warranting interference of this Court under Section 482

Cr.P.C to quash the proceedings against Petitioner/Accused No.5 in

the above crime. Therefore, the continuation of investigation for the
aforesaid offences against petitioner/Accused No.5 would amount to

an abuse of process of the Court. Therefore, this Court is of the view

that continuation of criminal proceedings against petitioner/Accused
No.5 is undesirable and the same are liable to be quashed.

12. In the result, the Criminal Petition is allowed. The criminal

proceedings initiated against the petitioner/Accused No.5 in Crime

No.3 of 2020 on the file of Women Police Station, Visakhapatnam, are

4 2023 SCC OnLine AP 4319

5 (2009) 3 SCC (Cri) 36
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hereby quashed.

As a sequel thereto, miscellaneous petitions, pending if any,

shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

Powered by TCPDF (www.tcpdf.org)

 [2024] 1 A.P.L.R. 117 : 2024:APHC:2480
CHENGAIPATTU @ NATHINENI SREENIVASULU,
Vs.
THE STATE OF AP REP BY ITS PP HYD.,
(Criminal Appeal 8 of .2011)
25 January 2024
Sri Justice A V Ravindra Babu

Issue for Consideration

Whether the prosecution proved the charges under Indian Penal Code
Section 304-B, The Dowry Prohibition Act, 1961 Section 4 beyond
reasonable doubt and whether the A1 i.e., appellant committed dowry
death of the deceased in his house in the manner as alleged.

Headnotes

Indian Penal Code Section 304-B, The Dowry Prohibition Act, 1961
Section 4 - The place of death of the deceased was in the house of
A-1. The marriage of A1 with deceased was performed four years
prior to the death of deceased. The death of deceased was otherwise
than in normal circumstances due to the presence of Organic
Phosphate Insecticide. There were injuries found on the person of the
deceased and according to medical evidence, they were ante mortem
in nature.

Held: Prosecution categorically established the ingredients of Indian

Penal Code Section 304-B. A conjoint reading of section 113-B of the
evidence Act and section 304-B IPC, there must be material to show
that soon before her death, the victim was subjected to cruelty or
harrasment The evidence adduced by the prosecution attracts the
Section 4 of Dowry Prohibition Act, 1961, which contemplates a
demand directly or indirectly from the parents or other relatives or
guardian of bride or bridegroom for dowry – No reason to interfere with
the judgment of conviction and sentence imposed against
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[2024] 1 A.P.L.R. 118

appellant/accused No.1 – Criminal Appeal dismissed (Paras

50,51,52,53,54, 55)

Acts

The Indian Penal Code,1860, The Dowry Prohibition Act, 1961, The
Indian Evidence Act, 1872.

Keywords

Dowry death, ante-mortem injuries, cause of death not natural, place

of death of deceased was in the in-laws house, soon before death,
proximity test, No straight jacket formula.

Case Law/Reference Cited

The State of Andhra Pradesh vs Raj Gopal Asawa and others

Appearances For Parties

For Appellant: Sri P.Gangaram Reddy

For Respondents: Public Prosecutor

Case Arising From

This Criminal Appeal is to the judgment, dated 06.01.2011 in Sessions

Case No. 166 of 2006, on the file of III Additional District & Sessions
Judge (FTC), Nellore ("Additional Sessions Judge" for short), where
under the learned Additional Sessions Judge found the present
appellant i.e., A.1 guilty of the charges under Section 304-B of the
Indian Penal Code and Section 4 of Dowry Prohibition Act convicted
him under Section 235(2) of the Code of Criminal Procedure and after
questioning him about the quantum of sentence, sentenced him to
suffer rigorous imprisonment for seven years for the offence under
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Section 304-B of IPC and further sentenced him to suffer simple

imprisonment for one year and to pay fine of Rs. 1,000/-in default to
suffer simple imprisonment for two months for the offence under
Section 4 of the Dowry Prohibition Act and that both the sentences
shall run concurrently.

Judgment/Order

Challenge in this Criminal Appeal is to the judgment, dated 06.01.2011 in

Sessions Case No.166 of 2006, on the file of III Additional District &

Sessions Judge (FTC), Nellore (“Additional Sessions Judge” for short),

where under the learned Additional Sessions Judge found the present

appellant i.e., A.1 guilty of the charges under Section 304-B of the Indian

Penal Code (“IPC” for short) and Section 4 of Dowry Prohibition Act (“DP

Act” for short), convicted him under Section 235(2) of the Code of Criminal

Procedure (“Cr.P.C.” for short) and after questioning him about the quantum

of sentence, sentenced him to suffer rigorous imprisonment for seven years

for the offence under Section 304-B of IPC and further sentenced him to

suffer simple imprisonment for one year and to pay fine of Rs.1,000/- in

default to suffer simple imprisonment for two months for the offence under

Section 4 of the Dowry Prohibition Act and that both the sentences shall run

concurrently.

2) The parties to this Criminal Appeal will hereinafter be referred to

as described before the learned Additional Sessions Judge for the sake of

convenience.

3) The Sessions Case No.166 of 2006 arose out of a committal

order in P.R.C.No.74 of 2005, on the file of IV Additional Judicial First Class

Magistrate, Nellore, relating to Crime No.95 of 2004 of Indukurpet Police

Station.
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4) The case of the prosecution, in brief, according to the charge

sheet filed by the Sub-Divisional Police Officer, Nellore Rural, is as follows:

(i) A.1 to A.4 are residents of Pogadadoruvuvari Kandriga and A.5 is

resident of Thummagunta Village. One Chengalpattu @ Nathineni Sireesha

(hereinafter will be referred to as “deceased”) is the wife of A.1. A.2 and A.3

are the parents of A.1. A.4 is younger brother and A.5 is elder sister of A.1.

The deceased is the daughter of L.W.1-Thiruvalluru Varalakshmi and

L.W.2-Thiruvalluru Subba Rao. L.W.3-Chengi Subrahmanyam is the

grandfather of deceased.

(ii)A.1marriedthedeceasedon08.10.1999atSriDharmarajaswamy

Temple, Nellore by following Hindu marriage customs and traditions. At the

time of marriage, the parents of the deceased presented cash of

Rs.2,00,000/-,goldornamentsweighingabout20sovereignsandhousehold

articles worth of Rs.10,000/- to the accused as dowry on the mediation

conducted by L.W.7-Thiruvalluru Ankaiah, the own younger brother of A.3.

During wedlock, they were blessed with two female children and they are

living at P.D. Kandriga village, Indukurpet Mandal. Not satisfied with the

dowry given at the time of marriage, all the accused subjected the deceased

to physical and mental harassment by demanding her to bring additional

dowry in the form of money from her parents. The deceased used to inform

L.W.1 about the harassment being met out to her by all the accused. At

request of the deceased, L.W.1 gave Rs.5,000/- to A.1 by bidding chit. At

another occasion, she also gave Rs.4,000/- to A.1 by borrowing the same for

interest. Several times L.W.3 and L.W.8-Naguluru Sreeramulu pacified the

disputes between the accused and the deceased.

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(iii) While the deceased was carrying second pregnancy, all the

accused necked out her from their house in a petty issue.

L.W.11-Ankireddipalli Bhaskara Reddy and L.W.12-Gongalreddy Subba

Reddy took the deceased to P.D. Kandriga village to the house of accused

and warned them not to repeat the harassment against the deceased, but

they continued the same harassment and they neglected her though the

deceased fell ill. None of the accused took care of her welfare and health

and they did not provide medical aid to the deceased. Having come to know

about the same, one week prior to 27.08.2004 when the deceased was

suffering from loose motions, L.W.1 went to P.D. Kandriga and took the

deceased and her two daughters with the permission of the accused to

Nellore. After getting her treatment at Nellore, she brought the deceased

and the children back to the house of accused situated at P.D. Kandriga in

the evening of 26.08.2004 in order to leave them with accused. On seeing

them, A.2 came out from the house and asked as to whether they brought

money as demanded by them. On the answer given by her, A.2 warned

them not to enter into the house without bringing money. A.2 thrown the bag

and baggage of the deceased from the house. When L.W.1 questioned

about high handed behavior of A.2, A.1 came out from the house and

slapped on the cheek of L.W.1. When the deceased went to rescue of

L.W.1, her mother, all the accused jointly manhandled the deceased by

beating her with hands and legs. Being unable to bear their high handed

behavior of A.1 to A.5, L.W.1 tried to take the deceased back to Nellore, but

all the accused demanded the deceased to move from there only after

signing on the divorce papers so that the marriage of A.1 will be performed

with some other lady. Without heeding to their demands, L.W.1 and the

deceased started to go away. Then all the accused pushed L.W.1 forcibly,

took the deceased into their house and threatened the deceased that they
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would kill her, if she leave that place without signing on the divorce papers.

Then L.W.1 went to her house and turned up to the police station on

27.08.2004 at about 9-30 p.m., for intervention of police to save the

deceased from the harassment of the accused for dowry. On 27.08.2004 at

6-30 p.m., the deceased who is not in a position to bear the physical and

mental torture met out by the accused, committed suicide by consuming

poison and went into unconscious state at her in-laws house. A.1 and A.3

with the help of L.W.11, L.W.12, L.W.13-Nasina Sankaramma and

L.W.14-Shaik Chettamma shifted the deceased in the tractor of L.W.11 to

Indukurpet at about 7-30 p.m. On the advice of L.W.15-Dr. Rebala

Maheswara Reddy, they took the deceased to Dr. Ramachandra Reddy

Hospital (Peoples Poly Clinic), Nellore, by that time they reached she was

found dead. On phone message parents of deceased came to know about

the death of the deceased on 28.08.2004 at 4-00 a.m. Then they came to

P.D. Kandriga village and found the deceased with injuries. L.W.25-Ch.

Krishnanadam, Asst. Sub Inspector of Police, recorded the statement of

L.W.1 in the police station and registered it as a case in Crime No.95 of

2004 under Section 304-B of IPC on 28.08.2004 at 6-15 a.m. and submitted

express FIR to all concerned. L.W.26-G. Eswaraiah, Sub Divisional Police

Officer, took up investigation. L.W.22-D. Nagabhushanam, Deputy Mandal

Revenue Officer, Indukurpet Mandal, held inquest over the dead body of the

deceased in the presence of mediators and recorded the statements of

L.W.1 to L.W.14. L.W.16-T. Suresh took photographs of the dead body at

the time of inquest. On the requisition of L.W.22, the medical officers i.e.,

L.W.23-Dr. V. Kiran Kumar and L.W.24-Dr. D. Padmavathi conducted

autopsy over the dead body of the deceased on 29.08.2004 and submitted

post mortem certificate opining that the deceased died due to presence of

Organ Phosphate an insecticide poison. L.W.17-Chukkala Satyanarayana,

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the Videographer, took videograph at the time of post mortem examination

at D.S.R. Government Hospital, Nellore. L.W.26-Sub-Divisional Police

Officer observed the scene of offence in the presence of mediators and

examined the statements of witnesses and arrested A.1 and A.2 on

02.09.2004. He arrested A.3 and A.4 on 15.10.2004. Hence, the charge

sheet.

5) The learned IV Additional Judicial Magistrate of First Class,

Nellore, took cognizance of case under Section 304-B of IPC and Sections 3

and 4 of D.P. Act. After complying the formalities under Section 207 of

Cr.P.C., and by exercising the powers under Section 209 Cr.P.C., committed

the case to the Court of Sessions and thereupon it was numbered as

Sessions Case and made over to the III Additional District & Sessions Judge

(FTC), Nellore, for disposal, in accordance with law.

6) On appearance of the accused before the learned Additional

Sessions Judge, charges under Section 304-B of IPC and Sections 3 and 4

of D.P. Act were framed against the accused and explained to them in

Telugu, for which they pleaded not guilty and claimed to be tried.

7) To bring home the guilt against the accused, the prosecution

examined P.W.1 to P.W.14 and got marked Ex.P.1 to Ex.P.9 and the

defence counsel got marked Ex.D.1 during cross examination of P.W.1 and

further the prosecution got marked M.O.1-C.D. After closure of the evidence

of prosecution, accused were examined under Section 313 of Cr.P.C. with

referencetotheincriminatingcircumstancesappearingintheevidenceletin,

for which they denied the same. A.1 stated that he has defence witnesses,

but he did not examine any witnesses. During Section 313 of Cr.P.C.
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examination, when the Court asked him as to whether he wish to say

anything about the case, he told that everything is false.

8) The learned Additional Sessions Judge, on hearing both sides

and on considering the oral as well as documentary evidence, found A.1

guilty of the charges under Section 304-B of IPC and Section 4 of the D.P.

Act, convicted and sentenced him as above. The learned Additional

Sessions Judge found A.2 to A.5 not guilty of the charges and acquitted

them under Section 235(1) of Cr.P.C. Felt aggrieved of the aforesaid

conviction and sentence imposed by the learned Additional Sessions Judge

under Section 304-B of IPC and Section 4 of D.P. Act, the unsuccessful A.1

filed the present appeal.

9) Now, in deciding this Criminal Appeal, the points that arise for

consideration are as follows:

(1) Whether the prosecution proved that A.1 i.e., appellant on 27.08.2004 at

about 6-30 p.m., in his house committed dowry death of the deceased in the

manner as alleged?

(2) Whether the prosecution proved that A.1 demanded the deceased and

her parents for additional dowry directly or indirectly within the meaning of

Section 4 of D.P. Act?

(3) Whether the prosecution proved the charges under Section 304-B of IPC

and Section 4 of D.P. Act beyond reasonable doubt?

(4) Whether the judgment of the learned Additional Sessions Judge is

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sustainable under law and facts?

Point Nos.1 to 4:-

10) P.W.1 was mother of the deceased. P.W.2 was grandfather of

the deceased being the father of P.W.1. P.W.3 was husband of the sister of

P.W.1. P.W.4 was wife of P.W.3. P.W.5 and P.W.6 were the so-called

mediators, who mediated the issue between the deceased and the accused

at the instance of parents of deceased or at the instance of the accused, as

the case may be. P.W.7 was the Private Medical Practitioner, who initially

examined the deceased and advised that she has to be taken to Nellore for

better treatment. P.W.8 was the inquest panchayatdar. P.W.9 was the

Medical Officer, who conducted autopsy over the dead body of the

deceased. P.W.10 was the photographer who took photographs over the

dead body of the deceased at the time of inquest. P.W.11 was the

videographer, who took videograph of the dead body at Government

Hospital, Nellore. P.W.12 was the Asst. Sub Inspector, who recorded the

statement of P.W.1 and registered FIR in Crime No.95 of 2004 under

Section 304-B of IPC. P.W.13 was the Sub-Divisional Police Officer, who

conducted investigation. P.W.14 was the Deputy Tahsildar who conducted

inquest over the dead body of the deceased.

11) There is no dispute about the marriage of the deceased with A.1

four years prior to the death of deceased and that during wedlock the

deceased and A.1 were blessed with two female children. These facts are

not in dispute. Apart from this, the relationship between A.1 to A.5 is not in

dispute. The evidence of P.W.1 on material aspects is that the marriage of

deceased with A.1 was performed as per their caste customs and Hindu rites
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at Nellore. At the time of marriage, they gave cash of Rs.2,00,000/-, 20

sovereigns of gold and household articles worth of Rs.10,000/- to A.1 as

dowry. The deceased joined with A.1 to lead marital life in her parents-in-law

in P.D. Kandriga and they were blessed with two daughters. Now, they are

residing with her. The deceased and A.1 lead happy marital life for about

three months. The accused demanded the deceased for additional dowry to

purchase lands. The deceased told her about the same. On account of the

said disputes, her father Subrahmanyam and L.W.8-Sri Ramulu went to the

house of accused to subside the disputes between them and the deceased.

As her husband was not taking care of family, she requested her father to

mediate the issue. In spite of advice by the elders, there was no change in

the attitude. They gave Rs.5,000/- to her daughter to give the same to the

accused. There was no change in the attitude. They harassed her to bring

some more amounts. She borrowed Rs.4,000/- and gave the same to her

daughter. As and when her relatives visited the house of the accused, the

deceased used to tell them not to visit on the ground that accused was

suspecting her fidelity. One week prior to the death of deceased, she came

to know that the deceased fell sick and accused did not provide any medical

aid. Then she brought her to give medical aid. She got her treated by a

competent doctor and after recovery she took her back to the house of

accused. She, her daughter and her granddaughters went to the house of

the accused. They asked whether they brought the amounts as demanded.

When they told them to allow the deceased into the house, they did not pay

any heed to their words and thrown away the belongings of the deceased on

the road. A.1 beat her (P.W.1) with hand on her cheek and when the

deceased came to rescue, A.2 to A.5 beat her indiscriminately. A.3 and A.5

insisted to convince the deceased to sign on white paper and to take her

back to enable A.1 to give divorce to her. By keeping the children and the
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deceased with the accused, they did not allow to stay with them and asked

her to go away. Then she went to the police station to lodge a report. Police

advised her to settle the matter amicably. Then she returned to her house

some time later, Mahesh came and informed that the deceased died. Then

she, her son Ashok, her father Subrahmanyam Mahesh and Lalitha went to

the house of the accused and found the dead body of deceased on the pial.

The accused did not allow them to come near the dead body. Then she went

to the police station and lodged a report. She was under the impression that

the accused having beaten the deceased killed her. Ex.P.1 is the report

given by her. She was present at the time of inquest.

12) P.W.2, the father of P.W.1, supported the evidence of P.W.1 on

material aspects. He spoke of the marriage between A.1 and deceased and

presentation of cash of Rs.2,00,000/-, 20 sovereigns of gold, household

articles worth Rs.10,000/- to the accused and that the deceased and A.1

were blessed with two female children and after that the accused started

harassing the deceased to bring additional amount and the deceased was

telling the said facts to him as and when she was coming to her parents

house. P.W.1 gave Rs.5,000/- to the accused through the deceased and as

accused not satisfied with that amount, she gave Rs.4,000/- but there was

no change. When the deceased was harassed by the accused and they

were not treating well, he and Sri Ramulu wet to the house of accused and

requested them to look after the deceased well. Some days later the

deceased died. He was informed about the death of deceased by somebody

over phone. One week prior to the death of deceased, she came to the

house of P.W.1 stating that she fell sick. The deceased was given medical

aid by P.W.1 and after recovery she was taken back to by P.W.1 to the

house of accused. P.W.1 told him that accused did not allow her into house
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and beat her and the deceased for not bringing amount. She also told him

that the accused was demanding the deceased to give divorce and to sign

on some papers. After knowing the death of deceased, he and others went

to the house of accused and found the dead body of deceased lying on the

pial and by then the accused were not present.

13) The evidence of P.W.3 supported the presentation of cash, gold

ornaments and household articles. He spoke of the fact that P.W.1 gave

Rs.5,000/- in one occasion and Rs.4,000/-in another occasion. He further

deposed that when he visited the house of accused to see the deceased,

she told him not to come to their house, as the accused attributed unchastity

to her. He further corroborated the evidence of P.W.1 by deposing that at

one instance P.W.1 brought the deceased to provide necessary medical aid

and when she was taken back to the house of accused, they did not allow

the deceased and insisted her to sign on some papers to get divorce. On

coming to know about the death of the deceased, he and his wife came to

the house of P.W.1 and from there they went to the house of accused and

found the dead body of the deceased on the pial. Thereafter, P.W.1

presented a report.

14) The evidence of P.W.4, who is the wife of P.W.3, is also similar

on crucial aspects i.e., dowry of Rs.2,00,000/-, presentation of gold

ornaments and household articles to the accused and the demand made by

accused to give additional dowry and complying the demands at two

instances by giving Rs.5,000/- and Rs.4,000/- and by providing medical aid

to the deceased and further so-called taking back the deceased to the house

of accused and the incident happened at the house of accused, etc.

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15) P.W.5 is the mediator, who deposed that at request of P.W.1

and her husband in the year 2003, he and P.W.2 went to the house of

accused to convince them to look after the deceased well. He was told by

P.W.1 that they gave some amounts to the accused but the accused were

harassing the deceased. Hence, he and P.W.1 advised A.1 to A.3 not to

harass the deceased and look after her well and also stated that the parents

of deceased are not in a position to give any amount. Subsequently, he

came to know that the accused did not look after the deceased and she

died. In the month of August, 2004, on hearing about the death of

deceased, he went to the house of accused and found the dead body lying

on the pial with some injuries on her body.

16) P.W.6 is another mediator, who deposed that there used to be

disputes in between the deceased and A.1 to A.3 with regard to the dowry

amount and on the plea that the deceased was not attending agricultural

work. On one occasion when the deceased went away to her parents’

house, A.1 requested him to act as a mediator to bring back the deceased to

his matrimonial fold. Then he, A.1 and Subba Reddy went to the parents’

house of deceased and requested her to come and join with A.1.

Accordingly, she came and joined with A.1 and both lead happy marital life

for about six months. He advised the accused not to have any disputes with

deceased. On one day in the month of August, 2004 at about 5-00 p.m., he

returned back from the fields and found A.1 was bringing the deceased by

holding her and A.3 told that the deceased consumed something. Then he

and Subba Reddy went there and advised A.3 to give butter milk and though

butter milk was poured in the mouth of deceased, she could not swallow the

same. Then she was taken in a tractor to Indukurpet to an R.M.P. Doctor,

who advised to take the deceased to Nellore. He gave Rs.1,000/- to the

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grandmother of A.1 and asked them to take the deceased to Nellore and

accordingly she was taken to Nellore. At about 9-30 p.m., the dead body of

deceased was brought back to the house of accused.

17) P.W.7 spoke to the fact that about six years ago on one

occasion at 6-00 p.m., some persons brought a lady in a tractor, who was in

the state of unconscious. He examined her and she was almost in coma

stage. He advised them to take her to Nellore. The person, who was brought

to him, was aged about 25 to 30 years and she was a resident of P.D.

Kandriga village.

18) P.W.8, the inquest panchayatdar, supported the case of the

prosecution by testifying that he acted as Panchayatdar to be present at the

time of inquest was held over the dead body of deceased Shrirsha. Ex.P.2

is the inquest.

19) P.W.9, the medical officer, who conducted autopsy over the

dead body of the deceased, whose evidence will be referred hereinafter.

20) P.W.10, photographer, testified that he took photographs over

the dead body of deceased and Ex.P.5 is the photographs five in number.

21) P.W.11, the Videographer, who videographed the dead body.

22) P.W.12 spoke of the statement of P.W.1 recorded by him on

28.08.2004 at 6-15 p.m. and registration of the same as a case in Crime

No.95 2004 under Section 304-B of IPC. Ex.P.6 is the FIR.

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23) P.W.13 is the Sub-Divisional Police Officer, who speaks of his

investigation.

24) P.W.14, the Deputy Tahsildar, spoke of the factum of

conducting inquest over the dead body of the deceased by recording the

statements of kith and kin of the deceased.

25) Sri P. Ganga Rami Reddy, learned Counsel for appellant, would

strenuously contend that the evidence of P.W.1 to P.W.4 is interested in

nature. For obvious reasons, the prosecution did not examine the husband

of P.W.1 i.e., father of deceased. If he was examined by the prosecution,

truth would have come out. The prosecution did not establish the essential

ingredients of Section 304-B of IPC and Section 4 of Dowry Prohibition Act,

for which A.1 was convicted. The learned Additional Sessions Judge having

acquitted A.2 to A.5, as charges were not proved, erred in believing the case

of the prosecution insofar as A.1 is concerned. The prosecution did not

adduce convincing evidence to prove that the deceased was subjected to

cruelty or harassment on account of demand for additional dowry. Ex.P.1 did

not disclose that the demands are made towards additional dowry. The

learned Additional Sessions Judge erroneously relied upon the evidence of

P.W.5 and P.W.6 who did not speak of the demand of additional dowry. The

defence of the accused was that P.W.1 did not like the marriage between

the deceased and A.1 and demanded the deceased and A.1 to come and to

reside in the village of P.W.1 for which A.1 did not agree and having vexed

with the attitude of P.W.1, the deceased committed suicide. Though the

commission of suicide was in the house of A.1, but on that ground, the case

of the prosecution cannot be strengthened. Though the death of deceased

was on account of consumption of pesticides poison, the deceased was

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compelled to do so only on account of attitude of P.W.1. The learned

Additional Sessions Judge did not consider the defence of the accused in

proper perspective. With the above submissions, he would contend that the

prosecution utterly failed to establish the ingredients of Section 304-B of IPC

and Section 4 of Dowry Prohibition Act. He would also contend that P.W.1

filed a Pauper O.P. without paying Court fee to recover the alleged dowry

amounts given to A.1 and when she had no capacity to pay Court fee, it was

improbable that they could have paid huge amount of Rs.2,00,000/- towards

dowry to A.1. The learned Additional Sessions Judge overlooked important

circumstances in favour of the defence, as such, he would submit that

appeal is liable to be allowed.

26) Sri N. Sravan Kumar, learned counsel, representing learned

Public Prosecutor, would contend that the place of death of the deceased

was in the house of A.1. The marriage of A.1 with deceased was performed

four years prior to the death of deceased. The death of deceased was

otherwise than in normal circumstances. There were injuries found on the

person of the deceased and according to medical evidence they were ante

mortem in nature. Contention of A.1 is that there was a possibility for the

deceased to receive such injuries when she was struggling for life on

ground. The prosecution established that A.1 and A.3 took the deceased for

medical help. They did not put forth probable reason as to how the

deceased committed suicide. Without any proper reason, they attributed

fault against P.W.1 was that on account of attitude of P.W.1, the deceased

committed suicide. It is not at all tenable. Though A.1 and deceased were

blessed with two female children, A.1 bent upon to demand additional dowry

towards purchase of lands and P.W.1 was not afforded to comply such

demand because husband of P.W.1 was not taking care of family. The
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prosecutionneednotexaminefatherofthedeceasedbecauseP.W.1lodged

the report and as he was not cooperative in the family affairs of P.W.1. No

malafidies can be attributed against the prosecution on account of non-

examination of father of deceased. The evidence of P.W.1 to P.W.4 is

quietly consistent. Mediators supported the case of the prosecution. The

prosecution had the benefit of presumption under Section 113-B of the

Indian Evidence Act, 1872. When the deceased fell ill and when P.W.1

provided medical aid by taking her to her house and later brought back the

deceased to the house of A.1, P.W.1 was not allowed into the house and A.1

slapped P.W.1 for which deceased intervened and even deceased was also

subjected torture and evidence goes to show that soon before her death, the

deceased was subjected to harassment and cruelty on account of a demand

for additional dowry. The learned Additional Sessions Judge rightly

appreciated the evidence on record, as such, the appeal is liable to

dismissed.

27) As one of the charges is under Section 304-B of I.P.C., it is

pertinent to extract here which runs as follows:

1
[304B. Dowry death. - (1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall
be called "dowry death", and such husband or relative shall be deemed to have
caused her death.

Explanation: For the purposes of this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
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(2) Whoever commits dowry death shall be punished with imprisonment for a
term which shall not be less than seven years but which may extend to
imprisonment for life.]

28) Apart from this, there is a presumption under Section 113-B of

the Indian Evidence Act, 1872 regarding dowry death which runs as follows:

Section 113-B in The Indian Evidence Act, 1872

"113-B: Presumption as to dowry death- When the question is whether a person

has committed the dowry death of a woman and it is shown that soon before her
death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume that such
person had caused the dowry death.

Explanation - For the purposes of this section 'dowry death' shall have the same
meaning as in Section 304B of the Indian Penal Code (45 of 1860)."

29) At this juncture, it is pertinent to look into the case of the

prosecution as projected in Ex.P.1.

30) As seen from Ex.P.1, it was the statement recorded by the

police from P.W.1. The allegations, in brief, were that at the time of marriage

of the deceased with A.1, parents of deceased presented cash of

Rs.2,00,000/- as dowry and further 20 sovereigns of gold and household

articles worth of Rs.10,000/-. After the marriage, the accused demanded for

additional amounts so as to purchase lands and in two occasions P.W.1

complied the demand by handing over Rs.5,000/- by participating in chit and

further Rs.4,000/- by borrowing the amount on interest. The accused used to

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suspect even the fidelity of P.W.1. At one occasion when the deceased fell

ill, they did not provide any medical aid. Then P.W.1 brought back the

deceased and provided medical aid and it was happened one week prior to

the death. When she took back the daughter to the house of accused, she

was not allowed into house and accused thrown away the household

belongings of the deceased. When she (P.W.1) questioned, A.1 slapped on

her cheek and when the deceased intervened, he was also beaten with a

demand to sign on white papers to get divorce. It was happened one day

prior to the death. On 27.08.2004 she went to the police station to lodge a

report and later she came to know that the deceased died. These are the

substance of the allegations. Ex.P.1 also reveals that she entertained a

suspicion that the deceased might have been killed.

31) There is no dispute that P.W.1 to P.W.4 spoke of the contents

of Ex.P.1 report.

32) Firstly, this Court would like to deal with as to whether the

prosecution proved that the death of deceased was happened within seven

years from the date of marriage otherwise than in normal circumstances.

Ex.P.1 alleges that the marriage of the deceased with A.1 was happened

four years prior to the statement. This fact was spoken to by P.W.1. There is

no dispute that the marriage of A.1 with the deceased was happened four

years prior to the death of deceased. In the entire cross examination of

P.W.1 to P.W.4, this fact is not disputed. There is no dispute about the date

of death of deceased. The death of deceased was admittedly within a period

of seven years from the date of marriage.

33) According to P.W.1 to P.W.4, the deceased consumed pesticide

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and she died. According to evidence of P.W.6, one of the mediators, when

he found A.1 bringing deceased by holding her, A.3 told that the deceased

consumed something. There is evidence of P.W.8, the inquest

panchayatdar,supportingthecaseoftheprosecutionthatthedeceaseddied

on account of consumption of pesticide. There is also evidence of medical

officer, P.W.9. According to the evidence of P.W.9, on 29.08.2004 he

conducted post mortem examination on the dead body of deceased Sirisha

from 11-00 a.m. onwards and found the following external injuries:

Multiple abrasions are present on the anterior chest wall both breast

right shoulder and over the ant abdominal wall in the left iliac region. In both

axillar, two abrasions obliquely present measuring about 3 x 1 ½ c.m., 2 x 3

cm., away from the axillary pits. Both abraded marks present in right axilla

and left axilla are fresh. A bruise measuring about 5 x 1 cm. over the right

shoulder is present.

On the back and on the post abdominal wall and left hip abrasion are

present. Single abraded wounds are present on the right elbow on extreme

aspect of the left knee.

Superficial venous congestion present on the neck and lower part of

cheek and on upper anterior chest wall.

So, he found the above external injuries. Though he deposed on

27.01.2010 that basing on the chemical report, his findings is that the death

of the deceased was due to Cardio Pulmanary arrest and the injuries found

on the person of the deceased is ante mortem in nature and Ex.P.4 is his

final opinion, the prosecution got recalled him for further chief examination
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and he deposed that as per the RFSL report, the cause of death of the

deceased is due to presence of Organic Phosphate Insecticides. Basing on

the report given by RFSL, he gave opinion that the death was due to

Organic Phosphate Insecticide. Due to oversight, in the earlier occasion, he

deposed that the death is due to Cardio Pulmanary arrest.

34) As seen from the post mortem report, his final opinion is that the

death was due to presence of Organic Phosphate Insecticide. Apart from

this, even according to the defence of A.1 before P.W.1, the deceased

committed suicide by consuming insecticide. Thus, the cause of death was

not natural. The cause of death was in the presence of A.1 and A.3. It is

nothing but a death otherwise than in normal circumstances.

35) Apart from this, the place of death of the deceased was in the in-

laws house. Apart from this, P.W.9 testified the presence of several injuries

on the person of the deceased which are ante mortem in nature. The site of

injuries i.e., abrasions on the anterior chest wall and abdominal wall in the

left iliac region and further two abrasions were obliquely present at both

axillar. Further he found abraded marks in the right axilla and left axilla fresh

in nature. He found a bruise over the right shoulder. He also found abrasions

on the post abdominal wall and left hip. He found single abraded wounds on

the right elbow on extreme aspect of the left knee. During cross examination,

P.W.9 deposed that if a poisonous substance is taken, the person who took

such poison would suffer struggling for life and if a person falls on a hard

surface, there is a chance of receiving abrasions.

36) It is to be noted that nothing was suggested to P.W.1 or P.W.9

during cross examination that the accused found the deceased struggling for
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life on ground. On the other hand, the place of death was in the in-laws

house and according to the evidence of P.W.6, he found A.1 and A.3 holding

the deceased and A.3 revealed that the deceased consumed something.

The evidence of P.W.6 discloses that he advised them to take the deceased

to Nellore and accordingly the deceased was taken to Nellore in an auto.

The evidence of P.W.7, the Private Medical Practitioner, revealed that the

deceased was firstly brought to him in a tractor and he deposed that she

shall be taken to Nellore for better treatment as already by then she was in

Coma. Therefore, the evidence on record discloses that firstly the deceased

was taken to P.W.7 and from there she was taken to Nellore. It was done by

A.1 and A.3. So, it is not a case where the deceased struggled for life by

lying herself on ground. On the other hand, A.1 was physically present at

the time of incident and he took the deceased along with A.3 to medical

help. No positive version is coming from the mouth of A.1 to explain the

circumstances in which multiple abrasions on crucial parts of the body of the

deceased were found. All these goes to show that the death of deceased

was otherwise than in normal circumstances within a period of seven years

from the date of marriage and it was happened in the house of A.1. The

prosecution cogently established one of the essential ingredients of Section

304-B of IPC and Section 113-B of the Indian Evidence Act, 1872 that the

death of deceased was within a period of seven years from the date of

marriage otherwise than in normal circumstances.

37) The next ingredient to be satisfied by the prosecution is that

soon before her death the deceased was subjected to harassment with a

demand for amounts in connection with dowry.

38) There was an allegation in Ex.P.1 that accused demanded for

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amounts to purchase lands. The evidence of P.W.1 discloses that not being

satisfied with the amounts she given i.e., Rs.2,00,000/-, 20 sovereigns of

gold and household articles worth of Rs.10,000/-, A.1 demanded additional

amounts so as to purchase the lands. According to Section 4 of the Dowry

Prohibition Act, the demand for dowry can be directly or indirectly. So, the

context of the case of the prosecution that P.W.1 presented dowry, gold and

household articles at the time of marriage and not being satisfied with the

same, additional amounts were demanded so as to purchase the lands.

39) It is a fact that P.W.1 during cross examination admitted that

after the death of deceased, she filed a case so as to recover the dowry

amounts from the accused and she filed a Pauper O.P. which was dismissed

directing her to pay the Court fee and she did not prefer any appeal against

the said order. She admitted that she filed a Guardian Petition against A.1

claiming the custody of the children of the deceased on the file of I Additional

District Judge, Nellore. Those admissions made by P.W.1 are not going to

affect the case of the prosecution in any way. According to P.W.1 presently

the children of the deceased are in her custody which is not disputed by

A.1. Apart from this, the contention of the accused is that when P.W.1 was

not afforded to pay Court fee for Pauper O.P., her contention that she gave

dowry and additional amounts cannot stands to any reason. The above said

contention deserves no merits for the reason that even according to the

accused, the concerned Court declined to number the Pauper O.P. by

directing P.W.1 to pay the Court fee amount which means that she had the

capacity to pay the court fee even according to the contention advanced. So,

basing on the above facts, it cannot be held that P.W.1 was not having any

financial capacity to pay the amounts either at the time of marriage or

subsequent to the marriage.

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40) In a case of dowry death, the kith and kin of the deceased were

the proper persons to speak of the demand. The evidence of P.W.1 that

pursuant to the demands, she paid a sum of Rs.5,000/- at one occasion to

his daughter so as to give the same to A.1 and further borrowed Rs.4,000/-

and gave the same has support from the contents of Ex.P.1. P.W.2 to P.W.4

claimed that they came to know about the said fact from P.W.1. It is to be

noted that though P.W.1 to P.W.4 were inter-related but on that ground itself

the case of the prosecution cannot be thrown out.

41) P.W.5 and P.W.6 were the so-called mediators who mediated

the issue. According to P.W.5 at request of P.W.1 and her husband, he and

P.W.2 went to the house of accused to convince them to look after the

deceased well. He claimed that he was told by P.W.1 that they gave some

amounts to the accused but the accused were harassing her daughter. He

testified that they advised A.1 to A.3 not to harass the deceased and to look

after her well. The parents of the deceased are not in a position to give any

amount to them. During cross examination, he denied that he did not

mediate the disputes of A.1 and deceased and he did not visit the house of

accused and that he is deposing false. Nothing is elicited from the evidence

of P.W.5 as to how he is interested in the case of the deceased. Apart from

this, there is also evidence of P.W.6, who conducted some sort of mediation

at the instance of accused so as to bring the deceased to the fold of A.1. He

categorically testified that there used to be disputes between the deceased

and accused with regard to dowry amount and also on the plea that the

deceased was not attending agricultural work. He testified that when the

deceased went away to her parents’ house at request of A.1, he acted as

mediator and brought back the deceased to his matrimonial fold. He further

claimed that he advised the accused not to have any dispute with the
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deceased. During cross examination his evidence was sought to be

challenged on the ground that he is deposing false. Absolutely, P.W.6 who

had no relation with either party has no reason to depose false. It is a case

where P.W.5 and P.W.6 claimed that they intervened in the disputes

between A.1 and deceased and they advised the accused to behave with

the deceased properly. In my considered view, the evidence of P.W.5 and

P.W.6 is of much use to the case of the prosecution because they

categorically testified that there was dispute on account of dowry demands

from the part of A.1.

42) During cross examination of P.W.1 accused agitated that she

had no intention to give the deceased in marriage to A.1 and that she had no

liking towards the deceased as she married A.1. She denied that she

insisted the deceased and A.1 to come to Nellore. She denied that she

abused the deceased for not paying any heed to her words and having

vexed with her attitude, the deceased consumed poison and died.

43) These suggestions were not given to P.W.2 to P.W.4 or P.W.5

and P.W.6, the mediators. It is to be noted that the deceased and A.1 were

blessed with two children. It is rather improbable to assume that though the

deceased and A.1 are blessed with two female children, P.W.1 had an

intention to spoil their life by making a demand to come to Nellore. The

suggestion given to P.W.1 that she abused the deceased for not paying any

heed to her words and she having vexed with the behavior of her, the

deceased consumed pesticide was nothing but baseless and without any

substance. No mother like P.W.1 would go to the extent of spoiling marital

life of her daughter, especially, when the deceased and A.1 were blessed

with two female children. In my considered view, there is consistency in the

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evidence adduced by the prosecution with regard to the demand made by

A.1 to bring additional amounts so as to purchase lands.

44) The Hon’ble Supreme Court in The State of Andhra Pradesh v.

1
Raj Gopal Asawa and others had an occasion to consider the essential

ingredients of Section 304-B of IPC and further the definition of the word

‘dowry’ in Section 2 of the Dowry Prohibition Act and dealt with the issue

elaborately at Para Nos.8 to 11. It is necessary to extract here the

observations of the Hon’ble Supreme Court, as above:

“8. Explanation to Section 304B refers to dowry "as having the same meaning as in
Section 2 of the Act", the question is: what is the periphery of the dowry as defined
therein? The argument is, there has to be an agreement at the time of the marriage
in view of the words "agreed to be given" occurring therein, and in the absence of
any such evidence it would not constitute to be a dowry. It is noticeable, as this
definition by amendment includes not only the period before and at the marriage but
also the period subsequent to the marriage. This position was highlighted in Pawan
Kumar and Ors. v. State of Haryana (1998 CriLJ 1 144) .

9. The offence alleged against the respondents is under Section 304B IPC which
makes "demand of dowry" itself punishable. Demand neither conceives nor would
conceive of any agreement. If for convicting any offender, agreement for dowry is to
be proved, hardly any offenders would come under the clutches of law. When
Section 304B refers to "demand of dowry", it refers to the demand of property or
valuable security as referred to in the definition of "dowry" under the Act. The
argument that there is no demand of dowry, in the present case, has no force. In
cases of dowry deaths and suicides, circumstantial evidence plays an important
role and inferences can be drawn on the basis of such evidence. That could be
either direct or indirect. It is significant that Section 4 of the Act, was also amended
by means of Act 63 of 1984, under which it is an offence to demand dowry directly
or indirectly from the parents or other relatives or guardian of a bride. The word
"agreement" referred to in Section 2 has to be inferred on the facts and
circumstances of each case. The interpretation that the respondents seek, that
conviction can only be if there is agreement for dowry, is misconceived. This would
be contrary to the mandate and object of the Act. "Dowry" definition is to be

1 (2004) 4 SCC 470

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interpreted with the other provisions of the Act including Section 3, which refers to
giving or taking dowry and Section 4 which deals with a penalty for demanding
dowry, under the Act and the IPC. This makes it clear that even demand of dowry
on other ingredients being satisfied is punishable. It is not always necessary that
there be any agreement for dowry.

10. Section 113B of the Evidence Act is also relevant for the case at hand. Both
Section 304B IPC and Section 113B of the Evidence Act were inserted as noted
earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat
the increasing menace of dowry deaths. Section 113B reads as follows:-

"113-B: Presumption as to dowry death- When the question is whether a person

has committed the dowry death of a woman and it is shown that soon before her
death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume that such
person had caused the dowry death.

Explanation - For the purposes of this section 'dowry death' shall have the same
meaning as in Section 304B of the Indian Penal Code (45 of 1860)."

The necessity for insertion of the two provisions has been amply analysed by the
st th
Law Commission of India in its 21 Report dated 10 August, 1988 on 'Dowry
Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in
securing evidence to prove dowry related deaths, legislature thought it wise to
insert a provision relating to presumption of dowry death on proof of certain
essentials. It is in this background presumptive Section 113B in the Evidence Act
has been inserted. As per the definition of 'dowry death' in Section 304B IPC and
the wording in the presumptive Section 113B of the Evidence Act, one of the
essential ingredients, amongst others, in both the provisions is that the concerned
woman must have been "soon before her death" subjected to cruelty or harassment
"for or in connection with the demand of dowry". Presumption under Section 113B
is a presumption of law. On proof of the essentials mentioned therein, it becomes
obligatory on the Court to raise a presumption that the accused caused the dowry
death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the Court must be whether the accused has committed the
dowry death of a woman. (This means that the presumption can be raised only if
the accused is being tried for the offence under Section 304B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his
relatives.
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144

(3) Such cruelty or harassment was for, or in connection with any demand for
dowry.

(4) Such cruelty or harassment was soon before her death.

11. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC
shows that there must be material to show that soon before her death the victim
was subjected to cruelty or harassment. Prosecution has to rule out the possibility
of a natural or accidental death so as to bring it within the purview of the 'death
occurring otherwise than in normal circumstances'. The expression 'soon before' is
very relevant where Section 113B of the Evidence Act and Section 304B IPC are
pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case presumption
operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a
relative term and it would depend upon circumstances of each case and no strait-
jacket formula can be laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed period, and that brings
in the importance of a proximity test both for the proof of an offence of dowry death
as well as for raising a presumption under Section 113B of the Evidence Act. The
expression 'soon before her death' used in the substantive Section 304B IPC and
Section 113B of the Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression 'soon before' is not defined. A
reference to expression 'soon before' used in Section 114. Illustration (a) of the
Evidence At is relevant. It lays down that a Court may presume that a man who is in
the possession of goods 'soon after the theft, is either the thief has received the
goods knowing them to be stolen, unless he can account for his possession. The
determination of the period which can come within the term 'soon before' is left to
be determined by the Courts, depending upon facts and circumstances of each
case. Suffice, however, to indicate that the expression 'soon before' would normally
imply that the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a proximate and
live-link between the effect of cruelty based on dowry demand and the concerned
death. If alleged incident of cruelty is remote in time and has become stale enough
not to disturb mental equilibrium of the woman concerned, it would be of no
consequence”.

45) In the light of the above said decision of the Hon’ble Supreme
Court, there need not be any agreement at the time of marriage with regard to
the dowry. As pointed out, the death of the deceased was other than the
normal circumstances and was within a period of seven years from the date of
marriage.
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145

46) Considering the same, I am of the considered view that the

evidence of P.W.1 to P.W.4 means that what all the demands made by A.1 was
only towards additional dowry so as to purchase lands.

47) The prosecution is bound to establish that such demands are made
soon before her death. What is soon before her death is a question to be
considered by this Court.

48) The Hon’ble Supreme Court in Raj Gopal Asawa’s (supra) had an
occasion to deal with what is soon before her death in view of the provisions of
Section 304-B IPC and 113-B of the Indian Evidence Act, 1872. It is apposite to
extract here the observations of the Hon’ble Supreme Court at Para No.11,
which are as follows:

“11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC
shows that there must be material to show that soon before her death the victim
was subjected to cruelty or harassment. Prosecution has to rule out the possibility
of a natural or accidental death so as to bring it within the purview of the 'death
occurring otherwise than in normal circumstances'. The expression 'soon before' is
very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are
pressed into service. Prosecution is obliged to show that soon before the
occurrence there was cruelty or harassment and only in that case presumption
operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a
relative term and it would depend upon circumstances of each case and no strait-
jacket formula can be laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed period, and that brings
in the importance of a proximity test both for the proof of an offence of dowry death
as well as for raising a presumption under Section 113-B of the Evidence Act. The
expression 'soon before her death' used in the substantive Section 304-B IPC and
Section 113-B of the Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the expression 'soon before' is not defined. A
reference to expression 'soon before' used in Section 114. Illustration (a) of the
Evidence At is relevant. It lays down that a Court may presume that a man who is in
the possession of goods 'soon after the theft, is either the thief has received the
goods knowing them to be stolen, unless he can account for his possession. The
determination of the period which can come within the term 'soon before' is left to
be determined by the Courts, depending upon facts and circumstances of each
case. Suffice, however, to indicate that the expression 'soon before' would normally
imply that the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a proximate and
live-link between the effect of cruelty based on dowry demand and the concerned
death. If alleged incident of cruelty is remote in time and has become stale enough
not to disturb mental equilibrium of the woman concerned, it would be of no
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146

consequence”.

49) So, by virtue of the above, it is very clear that ‘soon before’ is a

relative term and it would depend upon the circumstances of each case and

no straightjacket formula can be laid down as to what would constitute a

period of soon before the occurrence. No definite period has been indicated.

Soon before death is not defined. The Court has to decide as to what is soon

before death, basing on the proximity test.

50) Coming to the present case on hand, the date of death of

deceased was on 27.08.2004 which is one day after the incident that was

occurred at the house of deceased. According to the case of the prosecution

and evidence of P.W.1, when the deceased fell ill and as the accused did

not provide proper medical aid, P.W.1 brought the deceased so as to

provide medical aid and after recovery of her health, which is one day prior

to 27.08.2004, she took the deceased to the house of A.1. According to the

evidence of P.W.1 in this regard, when she took the deceased back to the

house of accused, accused asked as to whether she brought any amount as

demanded and she replied that to allow the deceased into the house, as

such, there was a quarrel and even A.1 gone to the extent of slapping on the

cheek of P.W.1 for which the deceased intervened and she was also beaten

by the accused. Then she went away by leaving the deceased alone and

accused also demanded to sign on white papers to divorce for which she

refused. According to her, she went to the police station to lodge a report,

but police advised to settle the matter amicably. Then she returned to the

house and thereafter she came to know that the deceased died. Just one

day prior to the death of the above, the said incident was happened. If the

said incident is proved, it would definitely satisfy the proximity test.

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51) During cross examination, P.W.1 denied that she did not state

to police that when she took the deceased to the house of accused, accused

asked her and the deceased whether they brought any amount as

demanded and she denied the above said suggestion. During cross

examination of P.W.13, the investigating officer, the accused did not elicit

that P.W.1 did not state so when she was examined by him. The omission

with regard to the above incident suggested to P.W.1 was not elicited by the

accused from the mouth of P.W.13. Hence, this Court has no reason to

disbelieve the evidence of P.W.1 with regard to the incident happened when

she took the deceased to the house of accused after providing necessary

medical aid. In the light of the above, the evidence adduced by the

prosecution squarely satisfies the proximity test.

52) It is to be noted that apart from the fact that the death of the

deceased was due to presence of Organic Phosphate Insecticide, there

were several abrasions found on the body of the deceased which were ante

mortem in nature. The accused had no probable say whatsoever as to how

such injuries could be found on the person of the deceased which were ante

mortem in nature. It was A.1 who ultimately took the deceased to the

hospital. The absence of proper explanation about the injuries found on the

person of deceased when the death of deceased was happened in the

house of A.1 is further strengthening the case of the prosecution. The

presence of the above said injuries means that prior to the death there was

also a possibility for physical harassment of the deceased. In my considered

view, the evidence on record fully satisfies the proximity test that soon before

her death, the deceased was subjected to harassment mentally and

physically.
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53) As seen from the judgment of the learned Additional Sessions

Judge, the learned Additional Sessions Judge rightly considered the

evidence on record by appreciating the evidence with care and caution

extended benefit of doubt insofar as A.2 to A.5 is concerned.

54) Having regard to the overall facts and circumstances and

looking into the evidence available on record, this Court is of the considered

view that the prosecution categorically established the essential ingredients

of Section 304-B of IPC. Further the evidence adduced by the prosecution

attracts Section 4 of the Dowry Prohibition Act which contemplates a

demand directly or indirectly from the parents or other relatives or guardian

of bride or bridegroom for dowry. In my considered view, the prosecution

categorically proved beyond reasonable doubt about the charges under

Section 304-B of IPC and Section 4 of the Dowry Prohibition Act. This Court

does not see any reason to interfere with the judgment of conviction and

sentence imposed against A1.

55) However, while looking into the sentence part, it is found that

the punishment imposed against A.1 for the offence under Section 4 of the

Dowry Prohibition Act was simple imprisonment. The punishment imposed

against A.1 under Section 304-B of IPC was rigorous imprisonment. The

learned Additional Sessions Judge made an order that both the sentences

shall run concurrently. As the punishment imposed under Section 4 of the

Dowry Prohibition Act is simple imprisonment, it cannot run concurrently.

However, at this stage, this Court cannot make it run consecutively or cannot

convert the sentence as that of rigorous imprisonment because practically

when both the sentences shall run concurrently, A.1 has to necessarily

undergo rigorous imprisonment only even for the offence under Section 4 of
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149

D.P. Act. Considering the same, at this stage, this Court cannot literally alter

the nature of the punishment under Section 4 of the Dowry Prohibition Act.

56) In the result, the Criminal Appeal is dismissed.

57) The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on

or before 01.02.2024 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the appellant

and to report compliance to this Court.

58) The Registry is directed to forward the copy of the judgment

along with original record to the trial Court on or before 01.02.2024.

Consequently,miscellaneousapplicationspending,ifany,shallstand

closed.

Consequently,miscellaneousapplicationspending,ifany,shallstand

closed.

Result of the case

The Criminal Appeal is dismissed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 150 : 2024:APHC:6154
Petta Surya Padmaja
Vs.
STATE OF AP
(Criminal Petition 1095 of .2020)
25 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether the case against the Petitioner/Accused No.4 is liable to be

quased by exercising jurisdiction under Section 482 of the Cr.P.C.

Headnotes

Section 498-A of Indian Penal Code, 1860 and Sections 3 and 4 of the
Dowry Prohibition Act, 1961 - Allegations of Physical and mental
harassment by Accused No.1 and his parents, on a demand of
additionaldowryAllegationthatPetitioner/AccusedNo.4receivedRs.1
lakh as aadapaduchu lanchanam at the time of marriage - No specific
allegations or overt acts attributed against Petitioner/Accused No.4. -

Held: No single specific allegation as to the intimidation of

petitioner/A4 to attract the offence under section 506 IPC except
omnibus allegation. No prima facie case is made out against the
Petitioner/AccusedNo.4toproceedfurtherinthismatter. Continuation
of proceedings against the petitioner for mere casual reference of her
involvement would be an abuse of process of law - Criminal Petition is
allowed (Para No.11)

Acts

Indian Penal Code, 1860; Dowry Prohibition Act, 1961; Criminal

Procedure Code, 1973

Keywords
 Digital High Court Reports
[2024] 1 A.P.L.R. 151

Aadapuduchu Lanchanam, physical and mental harassment, dowry,

specific overt act, abuse of process of law, inherent powers, quashing
of criminal proceedings.

Case Law/Reference Cited

Konala Bhavani vs State of Andhra Pradesh, Kahkashan Kausar @ Sonam vs State of

Bihar, Kans Raj vs State of Punjab, Suresh Kumar Jain vs State of Andhra Pradesh and
another, Manik Taneja and another vs State of Karnataka and another

Appearances For Parties

For Appellant: Sri P.Rajesh Babu

For Respondents: Assistant Public Prosecutor for Respondent No.1

Sri Challagali Gopala Raju for Respondent No.2

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has

been filed by the Petitioners/Accused No.4 seeking quashment of
proceedings against her in C.C.No.952 of 2019 on the file of the Court
ofVAdditionalJudicialMagistrateofFirstClass,Rajamahendravaram,
which was registered for the offences punishable under Sections
498-A, 506 read with 34 of the Indian Penal Code, 1860 and Sections
3 and 4 of Dowry Prohibition Act, 1961.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed, by the petitioner/Accused No.4, seeking
quashment of proceedings against her in C.C.No.952 of 2019 on the

file of the Court of V Additional Judicial Magistrate of First Class,

1 in short 'Cr.P.C'
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152

Rajamahendravaram,whichwasregisteredfortheoffencepunishable
under Sections 498-A and 506 read with 34 of the Indian Penal Code,

18602 and Sections 3 and 4 of the Dowry Prohibition Act3 .

2. Petitioner herein is Accused No.4 in the above C.C and she is

the sister-in-law of Respondent No.2/de facto complainant.

3. Brief facts of the case are as follows:

a. On 21.08.2016, de facto complainant(wife) got married to

Accused No.1(husband). Accused No.1 and his family members

informed that he was working as Deputy Manager in Hindustan

Aeronautical Limited and was getting Rs.80,000/- as salary and as per
the demand of their demand, the parents of the de facto complainant

agreed to give Rs.5 lakhs as dowry, Rs.1 lakh towards adapaduchu

lanchanams and 10 tulas of gold.

b. On 08.08.2016, the parents of the de facto complainant went to

the house of the accused and gave dowry of Rs.5 lakhs in the

presence of elders and at the time of marriage Rs.1 lakhs was given to
petitioner/Accused No.4 towards adapaduchu lanchanams. After
marriage, de facto complainant joined with Accused No.1 at her

matrimonial home at Kakinada. On the demand of Accused No.1 and

his parents, parents of the de facto complainant gave Rs.1 lakh for
customary gifts. Thereafter, de facto complainant and Accused No.1

went to Bengaluru.

2 in short, 'I.P.C.'
3 in short, 'D.P.Act'
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153

c. After some days, parents of Accused No.1 went to Bengaluru

and started harassing the de facto complainant stating that the dowry

amount was not sufficient and if they perform another marriage to

Accused No.1, they could receive dowry of Rs.25 lakhs. Heeding to
the words of his parents, Accused No.1 used to harass the de

facto complainant both physically and mentally.

d. Unable to bear the same, as de facto complainant informed the

same to her parents, Accused No.1 brought her to her parental home,
beat her, abused her parents, and threatened to see her end and left
her there. When elders tried to settle the dispute, Accused No.1 and

his parents abused the de facto complainant stating that they got a
Saturn lady due to which they lost huge dowry. On that the elders

admonished them and sent de facto complainant to Bengaluru to lead

family life.

e. After some days, parents of Accused No.1 visited to Bengaluru

and again started harassing the de facto complainant by attributing
illegal contacts to her. Accused No.1 and his parents tried to kill the de
facto complainant by leaking gas. Accused No.1 and his parents used
to harass the de facto complainant by demanding additional dowry of
Rs.10 lakhs.

f. On 02.04.2018, Accused No.1 and his parents sent the de

facto complainant to her parental home, though the parents of the de

facto complainant tried to settle the issue through elders, they did not
 Digital High Court Reports
154

heed their words.

4. Based on the report submitted by the de facto complainant, a

case in Crime No.111 of 2018 was registered against Accused Nos.,1

to 4 for the offences under Sections 498-A and 506 read with 34 IPC

and Sections 3 and 4 of D.P.Act.

5. After investigation of the case, a charge sheet was filed before

the Court of V Additional Judicial Magistrate of First Class,

Rajamahend-ravaram for the above said offences and the same was
numbered as C.C. No.952 of 2019.

6. This C.C is sought to be quashed by Petitioners/Accused No.4

on the following grounds.

a. All the allegations are made against the Accused No.1 and his
parents/Accused Nos., 2 and 3. Though there are no specific

allegations or overt acts attributed against Petitioner/Accused No.4,

the learned Magistrate without applying his mind took case on file.

b. The statements of the witnesses are nothing but the replica of the
contents of F.I.R and Section 161 Cr.P.C statement of the de

facto complainant.

c. FIR was lodged and charge sheeted without there being any material

evidence against the Petitioner.

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155

Arguments Advanced at the Bar

7. Heard Sri P.Rajesh Babu, learned counsel for the petitioner,

Ms.D. Prasanna Lakshmi, learned Assistant Public Prosecutor
representing the State/Respondent No.1 and Sri Challagali

Gopalaraju, learned counsel for Respondent No.2/de

facto complainant.

8. Learned counsel for the petitioner, in elaboration to what was

stated in the Petition, would submit that the petitioner is the married
sister-in-law of the de facto complainant and there are no specific

allegations against her. He would also submit that a casual reference

of the name of the petitioner is not suffice to continue the criminal

proceedings against her. Thus, he prays to quash the proceedings

initiated against the Petitioner.

9. Per contra, learned Assistant Public Prosecutor would submit

that there are specific allegations which would attract the alleged
offences against the petitioner, as such, quashing of proceedings at

this stage is not tenable. Hence, prayed to dismiss the

petition. Similarly, learned counsel for Respondent No.2 would submit
that the petitioner played a key role in the entire dispute and as such,

the proceedings against the petitioner cannot be quashed at this

stage.

Point for Determination

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156

10. Having heard the submissions made by the learned counsels

and on perusal of the material available on record, the point for

determination that arises in this case is as follows;

Whether the case against the Petitioner/Accused No.4 in C.C.No.952

of 2019 on the file of the Court of V Additional Judicial Magistrate of

First Class, Rajamahendravaram is liable to be quashed by exercising
jurisdiction under Section 482 of the Cr.P.C.?

Determination by the Court

11. This Court while summarizing the position of law

concerning exercise of Section 482 jurisdiction in Konala Bhavani v.
State of A.P.,4 held thus;

“10. Further, Section 482 of Cr. P.C. makes it clear that the Code
envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect
to any order under the Code or, (ii) to prevent abuse of the process of
any Court or, otherwise (iii) to secure ends of justice.

11. Section 482 is are to be exercised ex debito justitiae, i.e., to do real

and substantial justice. These powers must be invoked for compelling
reasons of abuse of process of law or glaring injustice, which are
against sound principles of criminal jurisprudence. Specific
circumstances warranting invocation of powers under
Section 482 have been strongly emphasized in a catena of decisions,
5
viz., State of Haryana v. Bhajanlal at paras 102 and 103, Neeharika
Infrastructure Pvt. Ltd. v. State of Maharashtra, at para 57, etc.”

12. In the context of quashment of criminal proceedings initiated in

4 2023 SCC OnLine AP 3605

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157

matrimonial matters, the Hon’ble Supreme Court and this Court has
delivered numerous decisions. It is relevant to refer to a few, at this

juncture. The Hon'ble Apex Court in Kahkashan Kausar @ Sonam v.

State of Bihar,5 held as follows:

“18. The above-mentioned decisions clearly demonstrate that this

court has at numerous instances expressed concern over the misuse
of section 498A IPC and the increased tendency of implicating
relatives of the husband in matrimonial disputes, without analysing the
long term ramifications of a trial on the complainant as well as the
accused. It is further manifest from the said judgments that false
implication by way of general omnibus allegations made in the course
of matrimonial dispute, if left unchecked would result in misuse of the
process of law. Therefore, this court by way of its judgments has
warned the courts from proceeding against the relatives and in-laws of
the husband when no prima facie case is made out against them”.

***

22. “Therefore, upon consideration of the relevant circumstances and

in the absence of any specific role attributed to the accused
appellants, it would be unjust if the Appellants are forced to go through
the tribulations of a trial, i.e., general and omnibus allegations cannot
manifest in a situation where the relatives of the complainant's
husband are forced to undergo trial. It has been highlighted by this
court in varied instances, that a criminal trial”

(emphasis supplied)

13. It is also relevant to refer to the decision of the Hon’ble

Apex Court in Kans Raj v. State of Punjab6 , wherein, it was observed
as follows:-

“For the fault of the husband, the in-laws or the other relations cannot,
in all cases, be held to be involved in the demand of dowry. In cases
where such accusation are made, the overt acts attributed to persons
other than husband are required to be proved beyond reasonable
doubt. By mere conjectures and implications such relations cannot be
held guilty for the offence relating to dowry deaths. A tendency has,

5 2022 LiveLaw (SC) 141

6 AIR 2000 SC 2324
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158

however, developed for roping in all relations of the in-laws of the

deceased wives in the matters of dowry deaths which, if not
discouraged, is likely to affect the case of the prosecution even against
the real culprits. In their over enthusiasm and anxiety to seek
conviction for maximum people, the parents of the deceased have
been found to be making efforts for involving other relations which
ultimately weaken the case of the prosecution even against the real
accused as appears to have happened in the instant case.”

(emphasis supplied)

14. While referring to the decisions of the Hon’ble Apex Court,

the then Composite High Court of Andhra Pradesh in Suresh Kumar

Jain v. State of Andhra Pradesh and another7 held thus;

“6. In Neelu Chopra v. Bharti, 2009 (4) JCC 3021, the Apex Court was
dealing with a case where the parents-in-law of the respondent were
shown as accused for an offence punishable under Sections 406 and
498-A read with Section 114 of IPC. The Apex Court held that in order
to lodge a proper complaint, mere mention of the sections and the
language of those sections is not be all and end of the matter. What is
required to be brought to the notice of the Court is the particulars of
the offence committed by each and every accused and the role played
by each and every accused in committing of that offence. The Apex
Court found that the allegations in the said complaint were vague, as it
does not show as to which accused has committed what offence and
what is the exact role played by them in the commission of crime.
Under these circumstances, the Apex Court found that continuation of
proceedings against the in-laws would be an abuse of process of law.

7. In Geeta Mehrotra v. State of Uttar Pradesh, (2012) 10 SCC 741,

the Apex Court has categorically held that “casual reference of the
names of the family members in a matrimonial dispute without
allegation of active involvement in the matter would not justify in taking

7 (2013) 2 ALD (Cri) 700

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159

cognizance against them overlooking the fact borne out of experience

that there is a tendency to involve the entire family members of the
household in the domestic quarrel taking place in a matrimonial
dispute”. The Apex Court also observed that if the FIR as it stands
does not disclose specific allegation against the accused, especially in
a matter arising out of matrimonial bickering, it would be clear abuse of
the legal and judicial process to mechanically send the named
accused in FIR to undergo the trial unless of course the FIR discloses
specific allegations which would persuade the Court to take
cognizance of the case against the relatives of the main accused who
are prima facie not found to have indulged in “the torture of the
complainant”. The said view was reiterated by the Apex Court
in Chandralekha v. State of Rajasthan, (2013) I CCR 150 (SC).

(emphasis supplied)

15. In the present case, a perusal of the charge sheet

as well as complaint would reveal specific allegations against Accused
Nos.1 to 3, who are the husband and parents-in-law of Respondent

No.2/de facto complainant. It is alleged in the complaint lodged by the

de facto complainant that when the dispute was placed before the

elders, Accused Nos.1 to 4 were present and they all abused her. In
Manik Taneja and another v. State of Karnataka and another8 , the
Hon’ble Apex Court held that mere allegation of abuse without any

specific narration as to the intention to cause alarm, will not amount to

an offence under Section 506 of IPC. However, in the instant case
there is also no single specific allegation as to the intimidation of the

Petitioner/Accused No.4 to the de facto complainant, which would

attract the offence under Section 506 IPC. Except the said omnibus
allegation, no specific overt acts are attributed against the petitioner.

8 (2015) 7 SCC 423

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Further, the Petitioner is the married sister of Accused No.1 and she
has been living separately with her family.

st
16. As can be seen from Bhajanlal’s case supra, the 1 guideline is
to the effect that even if the complaint allegations are accepted to be

true on their face, if they do not constitute any offence, then the FIR
can be quashed. In the instant case, no prima facie case is made out
against the petitioner/Accused No.4 to proceed further in this matter.

Continuation of proceedings against the petitioner for mere casual

reference of her name in the present case without her involvement
would be an abuse of process of law. Therefore, is not tenable. In such

circumstances, this Court can exercise the inherent powers under

Section 482 Cr.P.C to prevent abuse of the process of the Court or

otherwise to secure the ends of justice. In view of the foregoing

discussion and in view of the decisions referred to supra, this Court is
of the view that continuation of criminal proceedings against

petitioner/Accused No.4 is undesirable and the same are liable to be

quashed.

17. In result, the Criminal Petition is allowed. The proceedings

against Petitioner/ Accused No.4 in C.C.No.952 of 2019 on the file of
the Court of V Additional Judicial Magistrate of First Class,

Rajamahendravaram,fortheoffencepunishableunderSections498-A
and 506 read with 34 I.P.C., and Sections 3 and 4 of the Dowry

Prohibition Act,1961 are hereby quashed.

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161

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 162 : 2024:APHC:6152
Raavi Mahalakshmidora,
Vs.
The State of Andhra Pradesh
(Criminal Petition 2553 of .2021)
25 January 2024
Smt Justice Venkata Jyothirmai Pratapa

Issue for Consideration

Whether the case against the Petitioners/Accused Nos.2 to 5 is liable

to be quashed by exercising jurisdiction under Section 482 of the
Cr.P.C.

Headnotes

Sections 498-A and 324 of Indian Penal Code, 1860 – Respondent

No.2/De-facto Complainant has been in live-in relationship with
Accused No.1 – Allegations of dowry harassment against Accused
No.1 to 5.

Held: Since there is no marriage between Accused No.1 and the De-
facto Complainant the ingredients for the offence under section 498-A
IPC do not attract and as the petitioners have not relished the live-in
relationship, the question of demand of dowry by them does not arise.
Moreover, no specific overt acts are attributed against the petitioners –
As there is no primafacie case made out against the
Petitioners/Accused Nos.2 to 5, continuation of proceedings against
the Petitioners are not tenable and liable to be quashed – Criminal
Petition is allowed (Paras 11,12)

Acts

Indian Penal Code, 1860, Criminal Procedure Code, 1973, Dowry

Prohibition Act, 1961.
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[2024] 1 A.P.L.R. 163

Keywords

Live-in-relationship, Harassment for dowry, Quashing of Criminal

Proceedings, Inherent Powers, Abuse of process of the Court.

Case Law/Reference Cited

State of Haryana and others vs Bhajanlal and others, Suresh Kumar Jain vs State of
Andhra Pradesh and another

Appearances For Parties

For Appellant: Sri P.Sree Ramulu Naidu

For Respondents: Ms.D.Prasanna Lakshmi,

Learned Assistant Public Prosecutor – R1

Case Arising From

Petition under Section 482 of Code of Criminal Procedure, 1973 has

been filed, by the Petitioners/Accused Nos.2 to 5, seeking quashment
of proceedings against them in C.C.No.989 of 2020 on the file of the
Court of V Metropolitan Magistrate, Anakapalli, registered for the
offences punishable under Sections 498-A, 324, 323 and 506 read
with 34 of the Indian Penal Code, 1860 and Section 4 of Dowry
Prohibition Act, 1961.

Judgment/Order

The instant petition under Section 482 of Code of Criminal Procedure,

19731 has been filed, by the Petitioners/Accused Nos.2 to 5, seeking
quashment of proceedings against them in C.C.No.989 of 2020 on the

file of the Court of V Metropolitan Magistrate, Anakapalli, registered for

1 in short 'Cr.P.C'
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the offences punishable under Sections 498-A, 324, 323 and 506 read
with 34 of the Indian Penal Code, 18602 and Section 4 of the Dowry

Prohibition Act, 19613 .

2. Petitioners herein are Accused Nos.2 to 5 in the above C.C and

Accused No.1 is the brother of Accused Nos.2 to 5.

3. The facts of the case, in brief, are as follows:

a. Being in love, the de facto complainant Accused No.1 started

living under the same roof like a wife and husband. From the

beginning, Accused Nos.,2 to 5 disliked the association of the de

facto complainant with the Accused No.1 as she did not bring any
dowry and she belongs to a minor community.

b. Out of their relationship, the de facto complainant begot one

male and one female child. Later, at the instigation of Petitioners/

Accused Nos.2 to 5, Accused No.1 started harassing the de

facto complainant and used to beat her to bring dowry from her

parents. Accused No.1 without providing minimum needs to the de

facto complainant, used to give all of his earnings to Accused Nos.2 to
5. At the instigation of Accused No.1, petitioners were trying to drive

away the de facto complainant and her children from the house.

c.While so, on 20.01.2019 Accused No.1 came in a drunken state,

shouted on the de facto complainant stating that he has no relation

2 in short 'I.P.C.'
3 in short 'D.P.Act'
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with her children and tried to kill her by pressing her neck.

d. On 18.04.2020 at about 5.30 p.m., while the de

facto complainant along with her children was going on her way,
Accused No.1 who was sitting in Anjaneyaswamy temple along with

others, thought that she was abusing him, picked up a stick and beat
her on her head due to which, she received bleeding injury on the right
side of her head. When the children of the de facto complainant went

to the house of Accused Nos.2 to 5 to question as to why Accused

No.1 beat their mother, Accused Nos.3 to 5 abused them in filthy
language and warned them to kill if they come to their house once

again.

e. On 21.04.2020 the de facto complainant went to Women Police

Station, Anakapalli and presented a complaint against the accused

and on that Police called Accused No.1 for counseling and he said that
they would settle the matter in the presence of village elders, but they
did not turn up. As such, the de facto complainant on 13.10.2020
presented a complaint before DISHA Women Police Station,

Anakapalli, based on which a case in Crime No.27 of 2020 for the

offences under Sections 498-A, 324, 323 and 506 read with 34 IPC
and Section 4 of D.P.Act.

4. After investigation of the case, a charge sheet was filed before

the Court of V Metropolitan Magistrate, Anakapalli for the above said

offences and the same was numbered as C.C.No.989 of 2020. This

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C.C is sought to be quashed by Petitioners/Accused Nos.2 to 5 on the

following grounds.

a. The entire allegations are against Accused No.1 only but not against
the petitioners/Accused Nos.2 to 5.

b. The statements of the witnesses would clearly show that there is no

marital relationship between the de facto complainant and Accused
No.1, as such the allegation of dowry harassment does not arise.

c. The de facto complainant married one Kuravada Devudu about 35

years ago and without getting separated from him legally, she started
living with Accused No.1.

d. The live-in relationship between Accused No.1 and the de

facto complainant spoilt the lives of Accused Nos.3 to 5 as they were
mentally and physically harassed.

e. The de facto complainant has been harassing Accused No.1 to

transfer the entire property in the names of her son and daughter for
living luxurious life.

f. The present complaint has been filed by the de facto complainant with
a fraudulent intention to harass the accused and to grab money from
them.

Arguments Advanced at the Bar

5. Heard Sri P.Sree Ramulu Naidu, learned counsel for the

petitioners and Ms.D. Prasanna Lakshmi, learned Assistant Public

Prosecutor representing the State/Respondent No.1. In spite of
providingsufficientopportunity,learnedcounselforRespondentNo.2/
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de facto complainant did not submit their arguments.

6. Learned counsel for the petitioners would submit that there is no

marital relationship between Accused No.1 and the de

facto complainant, as such, subjecting the de facto complainant to

cruelty by the petitioners does not arise. The present case has been
filed only based on bald and omnibus allegations. He would also
submit that the Petitioners are no way connected with the alleged

offences and a casual reference of the names of the petitioners is not

sufficient to continue the criminal proceedings against them.

7. Per contra, learned Assistant Public Prosecutor would submit

that there are specific allegations which would attract the alleged
offences against the petitioners, as such, quashing of proceedings at

this stage is not tenable. Hence, prayed to dismiss the petition.

Point for Determinations

8. Having heard the submissions made by the learned counsels

and on perusal of the material available on record, the point for

determination that arises in this case is as follows;

Whether the case against the Petitioners/Accused Nos.2 to 5

in C.C.No.989 of 2020 on the file of the Court of V Metropolitan
Magistrate, Anakapalli is liable to be quashed by exercising jurisdiction

under Section 482 of the Cr.P.C.?

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Determination by the Court

9. A bare perusal of Section 482 makes it clear that the Code

envisages that inherent powers of the High Court are not limited or
affected so as to make orders as may be necessary; (i) to give effect
to any order under the Code or, (ii) to prevent abuse of the process of

any Court or, otherwise (iii) to secure ends of justice. A court while
sitting in Section 482 jurisdiction is not functioning as a court of appeal

or a court of revision. It must exercise its powers to do real and

substantial justice, depending on the facts and circumstances of the
case. These powers must be invoked for compelling reasons of abuse

of process of law or glaring injustice, which are against sound

principlesofcriminaljurisprudence.Specificcircumstanceswarranting
the invocation of the provision must be present. The decision rendered

by the Hon’ble Apex Court in State of Haryana and others v. Bhajanlal

and others4 is considered as the guiding torch in the application of

Section 482. At paras 102 and 103, the circumstances are spelt out as
follows;

“102. In the backdrop of the interpretation of the various relevant

provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases

4 AIR 1992 SC 604

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wherein such power should be exercised.

(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint

and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable

offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) 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.

(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code or the concerned
Act, providing efficacious redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding is manifestly attended with mala fide

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and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.

103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly
and with circumspection and that too in the rarest of rare cases; that
the court will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint and that the extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act according to its
whim or caprice.”

(emphasis supplied)

10. In Suresh Kumar Jain v. State of Andhra Pradesh and

another5 the then Composite High Court of Andhra Pradesh held as

follows:

“7. In Geeta Mehrotra v. State of Uttar Pradesh, (2012) 10 SCC 741,

the Apex Court has categorically held that “casual reference of the
names of the family members in a matrimonial dispute without
allegation of active involvement in the matter would not justify in taking
cognizance against them overlooking the fact borne out of experience
that there is a tendency to involve the entire family members of the
household in the domestic quarrel taking place in a matrimonial
dispute”. The Apex Court also observed that if the FIR as it stands
does not disclose specific allegation against the accused, especially in
a matter arising out of matrimonial bickering, it would be clear abuse of
the legal and judicial process to mechanically send the named
accused in FIR to undergo the trial unless of course the FIR discloses
specific allegations which would persuade the Court to take
cognizance of the case against the relatives of the main accused who

5 (2013) 2 ALD (Cri) 700

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are prima facie not found to have indulged in “the torture of the
complainant”. The said view was reiterated by the Apex Court
in Chandralekha v. State of Rajasthan, (2013) I CCR 150 (SC).

Emphasis supplied

11. Admittedly, the Respondent No.2/de facto complainant has

been in live-in relationship with Accused No.1 and since the beginning,
petitioners/Accused Nos.2 to 5 have been displeased with their

relationship. As there was no marital relation between the de

facto complainant and Accused No.1, the ingredients for the offence
under Section 498-A IPC do not attract. Except a bald allegation that

Accused No.1 at the instigation of the petitioners/Accused Nos.2 to 5

harassed the de facto complainant by demanding dowry, there is no
iota of pleading to support the same. The offences under Sections

324 and 324 IPC do not attract against the petitioners, since it is the
Accused No.1, who is alleged to have beat the de facto complainant,

but not the petitioners herein. Further, since there is no marriage

between Accused No.1 and the de facto complainant, and as the
petitioners have not relished the live-in relationship, the question of
demand of dowry by them does not arise. Moreover, no specific overt
acts are attributed against the petitioners.

st
12. As can be seen from Bhajanlal’s case supra, the 1 guideline is
to the effect that even if the complaint allegations are accepted to be
true on their face, if they do not constitute any offence, then the FIR

can be quashed. As there is no prima facie case made out against the
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petitioners/Accused Nos.2 to 5, continuation of proceedings against

the petitioners is not tenable. In such circumstances, this Court can

exercise the inherent powers under Section 482 Cr.P.C to prevent

abuse of the process of the Court or otherwise to secure the ends of
justice. In view of the foregoing discussion and in view of the decisions

referred to supra, this Court is of the view that the criminal proceedings
against petitioners/Accused Nos.2 to 5 are liable to be quashed.

13. In result, the Criminal Petition is allowed. The proceedings

against Petitioners/Accused Nos.2 to 5 in C.C.No.989 of 2020 on the
file of the Court of V Metropolitan Magistrate, Anakapalli, for the

offences punishable under Sections 498-A, 324, 323 and 506 read
with 34 IPC and Section 4 of the Dowry Prohibition Act, are hereby

quashed.

Pending miscellaneous petitions, if any, shall stand closed.

Result of the case

The Criminal Petition is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 173 : 2024:APHC:2791
BHAJA JAL
Vs.
THE STATE OF A.P. & ANOTHER
(Criminal Appeal 394 of .2011)
29 January 2024
Sri Justice A V Ravindra Babu

Issue for Consideration

Whether the compliance of mandatory provisions of Section 50

and 42 of the NDPS Act is necessary in this case and if so
whether they are complied by the investigating officer and
whether the judgment, dated 11.03.2011 is sustainable under law
and facts?

Headnotes

The Narcotic Drugs and Psychotropic Substance Act,1985-

Sections 42 and 50- A.1 carrying a big shoppy bag with his right
hand along with A.2 discussing together. They came out from the
bus stand to the rickshaw stand. PW.4 in the presence of
mediators detained A.1 and A2 - A.1 and A.2 disclosed their
identity on questioning and confessed that they possessed ganja
in the bag. Then, L.W.8 issued a search notice to the accused
informing the provisions of Section 50 of the NDPS Act - On
taking willingness from A.1 and A.2 to be searched before a
gazetted officer, a mediatornama was drafted there and both
accused were taken to the nearest gazetted officer - Contraband
was seized and samples were drawn in the presence of gazetted
officer and mediators. Accused No.1 convicted - On Appeal.

Held: There was no personal search of A.1. The Ganja was

alleged to be found in the bag which was in possession of A.1. It
is a case virtually Section 50 of the NDPS Act has no application
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[2024] 1 A.P.L.R. 174

when there was no personal search. Absolutely, it is not the case

of the prosecution that the investigating officer received any
information that Ganja was stored in any building or in any
conveyance. So, absolutely, the case on hand does not attract
the compliance of Section 42 of the NDPS Act. In the present
case the accused and property was produced before the
Executive Magistrate i.e., P.W.2 on the date of detection of the
case itself and the samples were lifted then and there before the
Executive Magistrate i.e., P.W.2. Hence, it cannot be held that
there was delay in this case in lifting the sample in violation of
Section 52(A) of the NDPS Act - Conviction upheld - Criminal
Appeal dismissed. (paras24,28 & 35)

Acts

The Narcotic Drugs and Psychotropic Substance Act, 1985.

Keywords

Personal Search, Mandatory provisions, delay in lifting

samples, Ganja,

Case Law/Reference Cited

Matta Prasad v. State, represented by Prohibition Excise Circle Inspector, State of

Orissa v. Laxman Jena, BantapalliDurgaRao and others v. State of A.P., rep. by its
Public Prosecutor, Kashif vs. Narcotics Control Bureau of High Court of Delhi,
BodabandSundar Singh vs. State of A.P., KalemeThumba vs. State of Maharashtra,
State of Punjab vs. Baladev Singh, SaikouJabbi vs. State of Maharashtra, State of
Haryana v. Jarnail Singh and others

Appearances For Parties

For Appellant: Sri A.S.K.S. Bhargav, representing Sri P. Durga

Prasad
 Digital High Court Reports
175

For Respondents: Public Prosecutor

Case Arising From

Criminal Appeal is to the judgment, dated 11.03.2011 in NDPS

S.C.No.1 of 2007, on the file of Special Sessions Judge for Trial
of the Cases under the Narcotic Drugs and Psychotropic
Substance Act, 1985-cum-I Additional Sessions Judge,
Vizianagaram, where under the learned Special Judge found the
present appellant/A.1 guilty of the charge under Section 8(c) r/w
20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substance
Act, 1985, convicted him under Section 235(2) of the Code of
Criminal Procedure and after questioning him about the quantum
of sentence, sentenced him to undergo rigorous imprisonment for
three years and to pay a fine of Rs.1,000/-, in default to suffer
simple imprisonment for six months. The learned Special Judge
found A.2 not guilty of the charge under Section 8(c) r/w
20(b)(ii)(B) of the NDPS Act and acquitted him under Section
235(1) of Cr.P.C.

Judgment/Order

Challenge in this Criminal Appeal is to the judgment, dated

11.03.2011 in NDPS S.C.No.1 of 2007, on the file of Special Sessions

Judge for Trial of the Cases under the Narcotic Drugs and Psychotropic

Substance Act, 1985-cum-I Additional Sessions Judge, Vizianagaram

(“Special Judge” for short), where under the learned Special Judge found the

present appellant/A.1 guilty of the charge under Section 8(c) r/w 20(b)(ii)(B)

of the Narcotic Drugs and Psychotropic Substance Act, 1985 (“NDPS Act”

for short), convicted him under Section 235(2) of the Code of Criminal

Procedure (“Cr.P.C.” for short) and after questioning him about the quantum

of sentence, sentenced him to undergo rigorous imprisonment for three

years and to pay a fine of Rs.1,000/-, in default to suffer simple

imprisonment for six months. The learned Special Judge found A.2 not guilty
 Digital High Court Reports
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of the charge under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and

acquitted him under Section 235(1) of Cr.P.C.

2) The parties to this Criminal Appeal will hereinafter be referred to

as described before the Special Court for the sake of convenience.

3) The case of the prosecution, in brief, according to the charge

sheet filed by the Prohibition & Excise Inspector, Bobbili in Crime No.49 of

2006-07, is that A.1 is resident of Jathupali Village, Nanpada District of

Orissa State. A.2 is resident of Pydiparthi Village of Mentada Mandal.

4) On 19.12.2006 at about 1-00 p.m., on a phone message

received L.W.8-P. Suryanarayana, Prohibition & Excise Inspector, Bobbili,

entered information in the General Diary left the station along with L.W.4-P.

Krishna Rao, Prohibition & Excise Sub-Inspector; L.W.5-M.S. Pentayya,

Prohibition & Excise Head Constable; L.W.6- K. Appala Raju, Prohibition &

Excise Constable and L.W.7-T. Geeta Rani, Prohibition & Excise Constable

and proceeded to Mandal Revenue Office, Bobbili. They made a requisition

to Mandal Revenue Officer and in turn Mandal Revenue Officer deputed

L.W.1-A.P.S. Gollapalli and L.W.2-V. Simhachalam Tayari, the revenue

personnel to act as mediators. They left the office of Mandal Revenue

Officer with mediators and reached rickshaw stand of Bobbili Bust Stand

(Complex) at 2-00 p.m. They found A.1 carrying a big shoppy bag with his

right hand along with A.2 discussing together. They came out from the bus

stand to the rickshaw stand. L.W.8 in the presence of mediators detained

A.1 and A.2. A.1 and A.2 disclosed their identity on questioning and

confessed that they possessed ganja in the bag. Then L.W.8 issued a

search notice to the accused informing the provisions of Section 50 of the

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NDPS Act. On taking willingness from A.1 and A.2 to be searched before a

gazetted officer, a mediatornama was drafted there and both accused were

taken to a nearest gazetted officer. They were taken to the Mandal Revenue

Office, Bobbili. They produced A.1 and A.2 before Mandal Revenue Officer,

Bobbili at 4-00 p.m. on 19.12.2006. The Mandal Revenue Officer, Bobbili in

the presence of mediators searched the big shoppy bag and found ganja

having leaves, tops, flowers and small stems. Then with the available

measures, Mandal Revenue Officer, got measured the ganja bundle and

found it as 6 kgs. Then L.W.8 took two samples i.e., 50 grams of each,

packed them separately in the presence of mediators. The remaining ganja

was packed and it is sealed in a bundle of ganja and two sample packets are

also sealed with proper identity slips and with signatures of the mediators

and officers. A mazarnama was drafted to that effect. L.W.8 in the presence

of mediators arrested the accused informing the grounds of arrest. He along

with the staff, accused and property returned to the station at 5-15 p.m., on

19.12.2006 and registered the mahazar as a case in Crime No.49 of

2006-07 under Section 8(c) r/w 20(b)(ii)(B) of the NDPS Act and issued FIR.

On 20.12.2006 property was produced before the Additional Judicial

Magistrate of First Class, Bobbili for custody. On 20.12.2006 Inspector sent

a detailed report regarding the arrest of the accused and seizure of ganja to

the higher officials as contemplated under Section 50(6) of the NDPS Act.

As per the orders of jurisdictional Magistrate, property was produced before

the Court on 23.12.2006 and later it was forwarded to the chemical

examiner. The chemical examiner examined the samples and opined that

they are of ganja. Hence, the charge sheet.

5) The learned Special Judge took cognizance of the case under

the above provisions of law and on appearance of the accused and after
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compliance of the provisions of Section 207 of Cr.P.C., the learned Special

Judge framed the charge under Section 8(c) r/w 20(b(ii)(B) of N.D.P.S Act

against the accused and explained to them, for which they pleaded not guilty

and claimed to be tried.

6) In order to establish the guilt against both the accused, the

prosecution examined P.W.1 to P.W.5 and got marked Ex.P.1 to Ex.P.10

and further M.O.1 to M.O.3. After closure of the evidence of prosecution,

accused were examined under Section 313 of Cr.P.C. with reference to the

incriminating circumstances appearing in the evidence let in by the

prosecution, for which they denied the same. A.1 stated that when he was

travelling in the bus, police called him and obtained his signature and filed a

case. A.2 stated that when he was near RTC complex, police caught hold of

them and filed a case.

7) The learned Special Judge, on hearing both sides and on

considering the oral as well as documentary evidence, found A.1 guilty of the

charge under Section 8(c) r/w 20(b(ii)(B) of N.D.P.S Act, convicted and

sentenced him as above. The learned Special Judge acquitted A.2 mainly on

the ground that no ganja was recovered from the possession of A.2 and the

bag was found only in the possession of A.1 and except the so-called

confession, they remained nothing to connect the offence in question with

A.2. Felt aggrieved of the aforesaid conviction and sentence, the

unsuccessful A.1 filed the present Criminal Appeal.

8) Now, in deciding this Criminal Appeal, in the light of the

contentions advanced, the points for determination are as follows:

(1) Whether the compliance of mandatory provisions of Section 50 and 42 of

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the NDPS Act is necessary in this case and if so whether they are complied
by the investigating officer?

(2) Whether the prosecution proved that A.1 was found in possession of 6
kgs. of ganja on 19.12.2006 at 2-00 p.m., at RTC Bus Stand, Bobbili, in the
manner as alleged by the prosecution in violation of the provisions of NDPS
Act?

(3) Whether the judgment, dated 11.03.2011 is sustainable under law and
facts?

POINT NOS.1 TO 3:-

9) As seen from the evidence of P.W.1, he is the mahazar witness

i.e., Village Revenue Officer. His evidence is that on 19.12.2006 at 1-30

p.m., he was at the office of the Mandal Revenue Officer, Bobbili. Excise

police came to Mandal Revenue Officer Office. His Mandal Revenue Officer

askedhimandL.W.2-V.Simhachalam,Talayari,PataBobbili,toaccompany

the excise officials. They accompanied the excise officials to RTC Bus

Stand, Bobbili at 1-50 p.m. They reached the parking place of rickshaw

stand. They noticed two persons coming from the bus stand and out of them

one was carrying hand bag. They perturbed on seeing the excise officials

and excise officials took them into custody. L.W.8 questioned them about the

contents of hand bag and they revealed that it contained ganja. The accused

are the said two persons. A.1 was carrying the said bag. L.W.8 obtained

consent from both the accused to be searched before a gazetted officer by

issuing notices under Ex.P.1 and Ex.P.2. He and L.W.2 attested on Ex.P.1
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and Ex.P.2. Both A.1 and A.2 also signed and put thumb impressions on

Ex.P.1 and Ex.P.2. A mahazar was drafted to that effect. He, L.W.2, excise

officials signed it. Ex.P.3 is the mediators report. Then they went to Mandal

Revenue Officer Office, Bobbili along with two persons. At 4-00 p.m., Mandal

Revenue Officer came there. Both the accused produced before him with

hand bag. At the request of L.W.8, Mandal Revenue Officer searched hand

bag of A.1 and found ganja. L.W.3 got weighed and it measured as 6 kgs.

L.W.8 took two samples weighing about 50 grams each from the ganja for

chemical analysis, wrapped in paper and sealed. He seized the remaining

ganja after taking samples. He seized hand bag which contained ganja. A

report was drafted which is Ex.P.4. Identity slips are pasted on the

samples. He and L.W.2 signed it. Both the accused signed and put thumb

impressions. M.O.1 is the hand bag. M.O.2 is the manure bag. M.O.3 is the

two sample packets.

10) As seen from the evidence of P.W.2, he is the Mandal Revenue

Officer, who supported the case of the prosecution. According to him, on

19.12.2006 at request of excise police, he deputed P.W.1 and L.W.2 to act

as mediators under Ex.P.5 requisition. Later, at 3-30 p.m., Sub Inspector

and Inspector came to his office and telephoned to him when he was at his

house. Then he came to his office at 4-00 p.m. Then he found Sub

Inspector, Inspector, P.W.1, L.W.2 and both the accused. L.W.8 requested

him to search the hand bag of the accused as they suspected ganja. He

gave a request to that effect which is Ex.P.6. He got opened the hand bag

and found ganja in another bag. L.W.8 got weighed ganja and found it as 6

kgs. He drawn two samples from ganja which are wrapped with a paper and

identity slips were affixed. He signed on identity slips. L.W.8 seized the

remaining ganja in the hand bag. A mediators report was drafted. M.O.1 to
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M.O.3 are the said property seized by L.W.8.

11) P.W.3 is the Prohibition & Excise Sub Inspector, who

participated in the raid and according to him he accompanied CI of Police to

the office of Mandal Revenue Officer for securing mediators and secured

P.W.1 and another through P.W.2. They reached Bobbili RTC Bus Stand at

2-00 p.m. and found the accused coming from inside complex. A.1 is holding

a polythene bag. On suspicion Inspector of Police took them into custody

and interrogated them and A.1 confessed that the bag contained ganja.

Inspector issued notices to the accused under Ex.P.1 and Ex.P.2 and a

separate report was drafted. Later, they all went to the office of the Mandal

Revenue Officer along with accused. Accused did not raise any objection for

bringing them before a gazetted officer. Mandal Revenue Officer came at

4-00 p.m. At request of Inspector with a requisition, P.W.2 searched the bag

of A.1 and found ganja which is measured as 6 kgs. Inspector lifted samples

and seized the rest of the ganja and wrapped the samples in a paper and

they all signed the mahazar. Inspector arrested the accused and they

returned back to the police station. M.O.3 is two sample packets.

12) P.W.4 is no other than the investigating officer. According to

him, on 19.12.2006 at 1-00 p.m., he received message that ganja was being

transported. He left station along with P.W.3 and his staff to the office of

Mandal Revenue Officer, secured P.W.1 and L.W.2 by issuing a requisition.

They left the office of Mandal Revenue Officer along with mahazar witnesses

and others and reached rickshaw stand near RTC bus stand. They found

two persons talking with each other and one person is holding a bag coming

from inside the bus stand. On suspicion, they took them into excise station

and interrogated them. The person who was holding bag disclosed that it
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contained ganja. A.1 and A.2 are the said two persons. A.1 was carrying

bag. By issuing Ex.P.1 and Ex.P.2, he obtained the consent of them to be

searched before a gazetted officer and a mahazar was drafted there. They

all proceeded to the office of Mandal Revenue Officer along with accused

and produced bag before Mandal Revenue Officer at 4-00 p.m. and at his

request, Mandal Revenue Officer searched the bag and found ganja which is

measured as 6 kgs. He lifted samples and affixed identity slips and that he

seized the samples and rest of the ganja and that he arrested the accused

and brought them to police station and sent them to remand after registration

of FIR. He also informed to Prohibition & Excise Superintendent about the

arrest of the accused vide covering letter under Ex.P.4. He sent samples to

Magistrate at Bobbili along with remand report. On 20.12.2006 Magistrate

returned the property with a direction to produce it before the Court at a later

time. On 23.12.2006 property was produced before the Court with a covering

letter. The samples were sent to the analyst through Court on 26.12.2006.

As per the analyst report, the samples belong to cannabinace. He has the

power to investigate the case vide Ex.P.9 certified copy of G.O.Ms.No.183,

dated 14.02.1986. M.O.1 to M.O.3 are the samples.

13) The prosecution examined P.W.5, a chemical analyst, who

deposed that he worked as Government Chemical Examiner, Prohibition

Regional Laboratory, Visakhapatnam. On 04.01.2007 he received two

sample packets from Prohibition & Excise Station, Bobbili through the Court

pertaining to Crime No.49 of 2006-07 of Bobbili Prohibition & Excise Station.

The seals are intact. He issued serial numbers and analysed the samples

and found that they are of ganja. Ex.P.10 is the chemical analyst report.

14) Sri A.S.K.S. Bhargav, learned counsel, representing Sri P.

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Durga Prasad, learned counsel appearing for the appellant, would

vehemently contend that there was utter violation of Sections 50 and 42 of

the NDPS Act. There was no proper compliance of Section 50 of the NDPS

Act. Though the investigating officer received information about the

transportation of Ganja, he did not comply Section 42 of the NDPS Act.

There was delay of 15 days in sending the samples to the Chemical

Examiner and the prosecution did not prove the chain of custody of the

contraband Ganja. The evidence of P.W.2 did not reveal that he was

introduced with the accused as a Gazetted Officer. It is the manner in which

Section 50 of the NDPS Act was violated. When the mandatory provisions of

Sections 50 and 42 of the NDPS Act were in utter violation, accused is

entitled for an acquittal. On account of the delay in sending the samples and

on account of non-proving of the chain of custody of contraband Ganja,

accused is entitled for an acquittal. P.W.1 was a witness who used to oblige

the excise officials to give evidence and to act as a mediator whenever

requested, as such, his evidence is to be appreciated with care and caution.

A.1 was resident of Orissa and he had nothing to do with the transportation

of Ganja and when he was in bus stand, police implicated him in a false

case. The learned Special Judge having recorded an order of acquittal in

favour of A.2, ought to have extended the same benefit in favour of the

present appellant, as such, appeal is liable to allowed. He would further

submit that the evidence of P.W.1 to P.W.4 is not at all convincing and their

evidence cannot stands to the test of scrutiny, as such, accused is entitled

for an acquittal.

15) The learned counsel for the appellant in support of his

contentions, relied upon the decisions in (1) Matta Prasad v. State,

1
represented by Prohibition Excise Circle Inspector , (2) State of Orissa v.

1 2005 ALT 1472

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2
Laxman Jena , (3) Bantapalli Durga Rao and others v. State of A.P., rep. by
3
its Public Prosecutor and (4) Kashif vs. Narcotics Control Bureau of High
4
Court of Delhi .

16) Sri N. Sravan Kumar, learned counsel, representing the learned

Public Prosecutor, would contend that there was no personal search of the

accused. Absolutely, compliance of Section 50 of the NDPS Act was not at

all necessary. However, the investigating officer with a bonafide impression

that he had to comply Section 50 of the NDPS Act, obtained consent of

accused on Ex.P.1 and Ex.P.2 to search them before a gazette officer and

they gave their consent and they were taken to P.W.2 and before him, bag

that was found in possession of A.1 was searched and it was found with

Ganja. The search of bag of A.1 was before P.W.2 who was a gazette

officer working in the Revenue Department and he was also having powers

of an Executive Magistrate. Though there was no necessity to comply

Section 50 of the NDPS Act, but the investigating officer complied it and the

contention of the appellant deserves no merits. Insofar as Section 42 of the

NDPS Act is concerned, he would contend that there was no search of any

enclosed place, any house or any conveyance and there was search of a

bag found in possession of A.1 and compliance of Section 42 of the NDPS

Act would not arise. What all the citations relied upon by the learned counsel

for the appellant cannot be made applicable to the present case on hand.

With regard to delay in sending the samples, he would contend that along

with the remand report, property was produced before the Magistrate, but

the Magistrate returned it and later it was resubmitted and later it was

forwarded and evidence on record would prove the chain of custody of the

contraband Ganja and the delay of two weeks in sending samples cannot be

2 2002 ALD CRI 2 567

3 2005 ALD 2 432
4 2023 SCC OnLine Del 2881
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taken as a serious one. With the above said submissions, he would contend

that the evidence adduced by the prosecution fully convincing and the

learned Special Judge rightly appreciated the evidence on record and rightly

found A.1 guilty, as such, appeal is liable to be dismissed.

17) In the light of the above rival contentions, firstly, this Court

would like to deal with as to whether it is mandatory on the part of

investigating officer to comply Section 50 of the NDPS Act and if so whether

it is complied or not.

18) For better appreciation, it is pertinent to refer here Section 50 of

the NDPS Act. It runs as follows:

50. Conditions under which search of persons shall be conducted.—

(1) When any officer duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or section 43, he shall, if
such person so requires, take such person without unnecessary delay to the
nearest Gazetted Officer of any of the departments mentioned in section 42 or
to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can
bring him before the Gazetted Officer or the Magistrate referred to in sub-
section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith discharge
the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

[(5) When an officer duly authorised under section 42 has reason to believe that
it is not possible to take the person to be searched to the nearest Gazetted
Officer or Magistrate without the possibility of the person to be searched parting
with possession of any narcotic drug or psychotropic substance, or controlled
substance or article or document, he may, instead of taking such person to the
nearest Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973 (2 of
1974).
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(6) After a search is conducted under sub-section (5), the officer shall record the
reasons for such belief which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official superior.]

19) A close perusal of Section 50 of the Act means that if the

arrested person requires that he should be searched before a Gazetted

Officer or a Magistrate, the empowering officer shall take him to the

Gazetted Officer or Magistrate. The law is well settled with regard to Section

50 of the Act. It has no application when there is no personal search of the

accused. At this juncture, this Court would like to refer here the well

established legal precedents under Section 50 of the Act.

5
20) In Bodaband Sundar Singh vs. State of A.P. , there was a case

where the investigating agency found contraband in possession of a box and

zip bag of the accused. The trial court recorded conviction against the

accused. Then, the matter went in appeal before the High Court of A.P., at

Hyderabad. The High Court of A.P. referred various decisions and held that

Section 50 of the N.D.P.S. Act would come into play only in the case of a

search of a person as distinguished from search of any place etc. The High

Court of A.P. in arriving at such a conclusion relied on a decision of the

6
Hon’ble Supreme Court in Kaleme Thumba vs. State of Maharashtra and

further the Constitutional Bench decision of the Hon’ble Supreme Court in

7
State of Punjab vs. Baladev Singh . The High Court of A.P. by following the

above said decisions held that the search of a person indicates search of the

body of the person but not other belongings like hand bags, suitcases, etc.,

as such when there is search of a person, then only the procedure

contemplated under Section 50 of the Act has to be resorted to.

5 2001(2) ALD (Crl.) 928 (AP)

6 AIR 2000 SC 402
7 (1999) 6 SCC 172
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21) In Saikou Jabbi vs. State of Maharashtra in Criminal Appeal

8
No.103 of 2003 , the Hon’ble Supreme Court dealing with Section 50 of the

Act and also by relying upon the earlier decisions in Kaleme Thumba’s case

(6 supra) and Baladev Singh (7 supra), held that language of Section 50 is

implicitly clear that the search has to be in relation to a person as contrasted

to search of premises and is not applicable to other types of search.

22) The Hon’ble Supreme Court in State of Haryana v. Jarnail Singh

9
and others also by following earlier decisions reiterated that Section 50 of

the N.D.P.S. Act did not apply when the search of a Tanker was conducted

because it was not a personal search.

23) Apart from this, the Hon’ble Supreme Court in 2014(1) ALD

(Crl.) 909 (SC) had an occasion to refer the Constitutional Bench decision in

Baladev Singh’s case (7 supra) equivalent to AIR 49 SC 2278. The Hon’ble

Supreme Court extracted the observations in Baladevi Singh’s case (7

supra) as follows:

(1) That when an empowered officer or a duly authorized officer acting on prior
information is about to search a person, it is imperative for him to inform the
person concerned of his right under sub-section (1) of Section 50 being taken to
the neared Gazetted Officer or to the nearest Magistrate for making the search.
However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right
to be searched before a Gazetted officer or a Magistrate would cause prejudice
to an accused.

8 2004 (14) ILD 271

9 AIR 2004 Supreme Court 2491
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(3) That a search made by an empowered officer, on prior information, without

informing the person of his right that if he so requires, he shall be taken before a
gazette officer or a Magistrate for search and in case he so opts, failure to
conduct his search before a gazette officer or a Magistrate, may not vitiate the
trial but would render the recovery of the illicit article suspect and vitiate the
conviction and sentence of an accused, where the conviction has been
recorded only on the basis of the possession of the illicit article, recovered from
his person, during a search conducted in violation of the provisions of Section
50 of the Act.

24) Coming to the case on hand, absolutely, there was no personal

search of A.1. The Ganja was alleged to be found in the bag which was in

possession of A.1. It is a case virtually Section 50 of the NDPS Act has no

application when there was no personal search. However, it appears that the

investigating officer under a bonafide impression that he has to comply

Section 50 of the NDPS Act issued Ex.P.1 and Ex.P.2 notices to A.1 and A.2

requiring their consent so as to search the bag in possession of A.1 before a

gazette officer. It is to be noted that P.W.1 was no other than the Village

Revenue Officer, who acted as mediator. P.W.2 was a revenue official, who

had powers of Executive Magistrate. Their evidence is consistent with the

evidence of P.W.4 and P.W.5, the excise personnel, regarding the manner in

which P.W.2 was secured as a mahazar witness. The manner in which

P.W.1 was secured as a mahazar witness was consistent throughout

examination of P.W.1 to P.W.4.

25) Having regard to the above, I am of the considered view that

absolutely there was no need for the investigating officer to comply Section

50 of the NDPS Act. However, he complied it by searching the bag of A.1

before a gazette officer i.e., P.W.2. Hence, the contention of the learned
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counsel for the appellant that the appellant (A.1) is entitled for an acquittal

for violation of Section 50 of the NDPS Act deserves no merits.

26) Coming to the contention of the learned counsel for the

appellant that there was no compliance of Section 42 of the NDPS Act, I

would like to deal with the same now.

Section 42 of the Act runs as follows:

2[42. Power of entry, search, seizure and arrest without warrant or

authorisation.—

(1) Any such officer (being an officer superior in rank to a peon, sepoy or
constable) of the departments of central excise, narcotics, customs, revenue
intelligence or any other department of the Central Government including para-
military forces or armed forces as is empowered in this behalf by general or
special order by the Central Government, or any such officer (being an officer
superior in rank to a peon, sepoy or constable) of the revenue, drugs control,
excise, police or any other department of a State Government as is empowered
in this behalf by general or special order of the State Government, if he has
reason to believe from persons knowledge or information given by any person
and taken down in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable under this Act
has been committed or any document or other article which may furnish
evidence of the commission of such offence or any illegally acquired property or
any document or other article which may furnish evidence of holding any
illegally acquired property which is liable for seizure or freezing or forfeiture
under Chapter VA of this Act is kept or concealed in any building, conveyance
or enclosed place, may between sunrise and sunset,-—

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such
entry;

(c) seize such drug or substance and all materials used in the manufacture
thereof and any other article and any animal or conveyance which he has
reason to believe to be liable to confiscation under this Act and any document or
other article which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish evidence of
holding any illegally acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act; and
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(d) detain and search, and, if he thinks proper, arrest any person whom he has
reason to believe to have committed any offence punishable under this Act:

1[Provided that in respect of holder of a licence for manufacture of

manufactured drugs or psychotropic substances or controlled substances,
granted under this Act or any rule or order made there under, such power shall
be exercised by an officer not below the rank of sub-inspector:

Provided further that if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording opportunity for the
concealment of evidence or facility for the escape of an offender, he may enter
and search such building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso thereto, he shall
within seventy-two hours send a copy thereof to his immediate official superior.]

27) A close perusal of Section 42 of the Act means that if the

empowered officer has any information out of his personal knowledge or

information given by any person and taken down in writing about the storage

of any narcotic drug or psychotropic substance in any house, enclosed place

or in any conveyance, he may between sunrise and sunset enter into and

search any building, conveyance or place and seize such contraband. The

proviso of Section 42 reveals that such search can be conducted between

sunset and sunrise. When Section 42(1) contemplates search during day

time, the proviso contemplates search during night time. According to

Section 42(2) of the Act where an officer takes down any information in

writing under sub-section (1) or records grounds for his belief under the

proviso thereto, he shall within 72 hours send a copy thereof to his

immediate official superior.

28) Absolutely, it is not the case of the prosecution that the

investigating officer received any information that Ganja was stored in any
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building or in any conveyance. So, absolutely, the case on hand does not

attract the compliance of Section 42 of the NDPS Act.

29) It is to be noted that according to the evidence of P.W.4, the

investigatingofficer,admittedly,hereceivedinformationbyphonethatGanja

was being transported. It is not his case that A.1 was transported ganja in

any conveyance. It is not his evidence that it was stored in any enclosed

place or house. Therefore, it is sufficient on his part to make an entry in

General Diary with regard to information he received. The question of

compliance of Section 42 of the NDPS Act would arise if he had the

information about the storage of any narcotic drug or substance in any

enclosed place or in any vehicle or house.

30) Turning to the two decisions cited by the learned counsel for the

appellant in Matta Prasad’s case (1 supra) and Laxman Jena’s case (2

supra) to contend that non-compliance of Section 42 of the NDPS Act would

enure benefit of acquittal, this Court would like to make it clear that Matta

Prasad’s Case (1 supra) is a case where there was search of a Scooter

which was no other than a conveyance. When there was search of Scooter

in utter violation of Section 42 of the NDPS Act, the Hon’ble Supreme Court

held that non-compliance of Section 42 of the NDPS Act is a serious

lacuna which entitles the accused to claim an acquittal.

31) Turning to Laxman Jena (2 supra), there was a search of house

to recover the opium in violation of Section 42 of the NDPS Act. In the

above two referred decisions, the search was in respect of a Scooter and a

house, as such, the facts attracted Section 42 of the NDPS Act.

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32) In the present case on hand, there was no search of any vehicle

or enclosed place or house. Hence, the above said two decisions have

nothing to do with the present facts and circumstances.

33) With regard to the delay in sending the samples, this Court

would like to clear that the detection of the present case was on 19.12.2006.

There was evidence of P.W.4 that along with the remand report itself, he

presented property to the Court and the Court returned with a direction to

produce at a later time and accordingly, on 23.12.2006 property was

produced with a covering letter and samples were forwarded to the chemical

analysis through the Court on 26.12.2006. As seen from the chemical

analysis report by virtue of the evidence of P.W.5, who is no other than the

Chemical Examiner, he received samples on 04.01.2007 from Prohibition

and Excise Station, Bobbili through the Court and on analyzation it is

revealed that the sample is nothing but Ganja. In my considered view, the

evidence of P.W.4 and P.W.5 categorically established the chain of custody

of the property. It was very promptly produced before the court and later at

the directions of the Court, it was again reproduced and later it was

forwarded to the chemical analysis.

34) In the decision relied upon by the learned counsel for the

appellant in Bantapalli Durga Rao’s case (3 supra), the sample was collected

on 25.10.1997 and it was forwarded for analysis on 01.04.1998. There was

delay of about more than 5 months and there was no evidence on record to

show that the sample was kept safely in the excise police station. Thus, in

the aforesaid circumstances, benefit of doubt was extended to the accused.

The facts in Bantapalli Durga Rao’s case (3 supra) cannot be made

applicable to the case on hand and the present case is quietly

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distinguishable from the above said case. The present case is not one where

the sample was forwarded to the analyst with an abnormal delay. The chain

of custody of sample was proved by virtue of the evidence of P.W.4. Hence,

there is no merit on the part of appellant to contend that the delay in sending

the samples entitles him to claim an acquittal.

35) Turning to the decision in Kashif’s case (4 supra), it was a case

that there is delay on the part of the investigating officer in moving the

Magistrate for lifting the sample. The sample was lifted with an inordinate

delay of 51 days. In the present case the accused and property was

produced before the Executive Magistrate i.e., P.W.2 on the date of

detection of the case itself and the samples were lifted then and there before

the Executive Magistrate i.e., P.W.2. Hence, it cannot be held that there

was delay in this case in lifting the sample in violation of Section 52(A) of the

NDPS Act. Hence, the above four decisions relied upon by the learned

counsel for the appellant does not enable the appellant to contend that he is

entitled for acquittal.

36) Now, coming to factual analyzation of the evidence, P.W.1 and

P.W.2, who were the revenue officials, were bound to assist the excise

officials even in view of the provisions of NDPS Act in detection and

investigation of the case. Absolutely, nothing could be elicited from the

mouth of P.W.1 that he was a stock mediator. According to him, previously in

one case he acted as a mediator and this is the second case. It is to be

noted that P.W.1 was aged about 58 years as on the date of his evidence.

Thus, in his entire career the present case is second one where he acted as

a mediator. By any stretch of imagination, it cannot be held that he was a

stock mediator. Apart from this, it is a statutory duty of P.W.2 to act as a

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gazetted officer and to assist in detection and investigation of the case.

During the entire cross examination, there could be nothing elicited in

support of the defence. He denied that excise officials did not come to him

and the accused were not produced before him and that he did not search

anything and no proceedings were taken place in his presence and that

nothing was seized in his presence. The above said suggestion was quietly

denied and it was nothing but baseless.

37) Turning to the evidence of P.W.3 and P.W.4, the excise officials,

they cogently deposed about the manner in which the present case was

detected. In the entire cross examination, there could be nothing found in

favour of the defence of the accused. P.W.3 denied that the Inspector of

Police did not follow the mandatory provisions of NDPS Act. P.W.4 denied

that he implicated the case falsely. He denied that he did not follow the

mandatory provisions of NDPS Act and he got filed the case for statistical

purposes. There could be nothing during cross examination of P.W.3 and

P.W.4 so as to disbelieve their testimony. Though there is no need or

necessity to examine the chemical analyst i.e., P.W.5, the prosecution

examined P.W.5 and his evidence discloses that the sample is of Ganja. The

suggestion given to P.W.5 that Ex.P.10 analyst opinion is fabricated is

nothing but baseless.

38) It is to be noted that A.1 was resident of Orissa. During Section

313 of Cr.P.C. examination, he disclosed that when he was travelling in a

bus, police called him and obtained his signature and filed a case. As seen

from cross examination part of P.W.4, absolutely, nothing was suggested to

him that when A.1 was travelling in a bus, he was called to Police Station

and he was implicated in a false case. It is rather improbable that P.W.4,

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who is the investigating officer, would choose to implicate a person who

belongs to Orissa for statistical purposes. It is to be noted that A.1 was

resident of Orissa and he did not put forth any probable reason about his

presence at RTC bus stand. On the other hand, his contention was when he

was travelling in a bus, he was caught hold and the above said defence is

nothing but improbable. In my considered view, the evidence of P.W.1 to

P.W.4 is fully consistent and it is convincing and it is believable.

39) Now, it is relevant to refer herein certain presumptions as

contemplated under Section 35 of the NDPS Act. According to Section 35 of

the Act, in any prosecution for an offence under this Act which requires a

culpable mental state of the accused, the Court shall presume the existence

of such mental state but it shall be a defence for the accused to prove the

fact that he had no such mental state with respect to the act charged as an

offence in that prosecution. The explanation of the above shows that

‘culpable mental state’ includes intention, motive knowledge of a fact and

belief in, or reason to believe a fact. The Hon’ble Supreme Court in 2003

(11) ILD 491 SC held that once possession is established, then the person

who claims that it was not a conscious possession has to establish it

because how he came to be in possession is within his special knowledge.

40) According to Section 54 of the NDPS Act, it contemplates

certain presumptions. According to the said section in trials under this Act, it

may be presumed, unless and until the contrary is proved, that the accused

committed the offence under this Act in respect of any narcotic drug or

psychotropic substance or controlled substance for the possession of which

he fails to account satisfactorily.

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41) It is no doubt true that the presumption under Section 54 of the

NDPS Act and the presumption under Section 35 would arise after the

prosecution discharged its burden to prove the recovery of the contraband

from the accused. In my considered view, the prosecution discharged its

burden about the recovery of contraband from the possession of the

accused. In such circumstances, it is for the accused to prove the contrary.

The accused had no semblance of say much less probable say to prove

contrary.

42) Having regard to the facts and circumstances, this Court is of

the considered view that the prosecution before the learned Special Judge

categorically established beyond reasonable doubt about the recovery of 6

Kgs. of ganja from the possession of A.1. The evidence of P.W.5 coupled

with Ex.P.10 runs that the sample that was tested by the Laboratory that was

of Ganja. The prosecution established the link between M.O.3 with that of

the Ganja which was found in the bag of A.1. Further the prosecution

established the chain of custody of the sample. In my considered view, the

learned Special Judge on factual aspects rightly appreciated the evidence

on record and rightly found the accused guilty.

43) Apart from this, the learned Special Judge with regard to the

legal angles made findings that though the compliance of Section 50 of the

NDPS Act was not necessary, but the investigating officer complied it and

further appropriate finding that Section 42 of the NDPS Act has no

application to the case on hand.

44) Having regard to the above, I am of the considered view that

absolutely, there are no grounds to interfere with the judgment of the learned
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Special Judge. The prosecution before the Court below categorically proved

the charge against the accused beyond reasonable doubt. The accused

failed to probabalize any contention how he can justify his action in

possessing 6 Kgs. of Ganja. So, the act of the accused is nothing but

contravening the provisions under the NDPS Act. Absolutely, there is clear

bar under Section 8(c) r/w 20(b)(ii)(B) of NDPS Act, 1985 for possession of

Ganja by A.1.

45) Having regard to the above, this Court does not find any reason

to interfere with the judgment of the learned Special Judge.

46) In the result, the Criminal Appeal is dismissed, as such, the

judgment of the Special Sessions Judge for Trial of the Cases under the

Narcotic Drugs and Psychotropic Substance Act, 1985-cum-I Additional

Sessions Judge, Vizianagaram in NDPS S.C.No.1 of 2007, dated

11.03.2011 shall stand confirmed.

47) The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on

or before 05.02.2024 and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the appellant

and to report compliance to this Court.

48) The appellant/A.1 is directed to surrender before the Court

below on or before 09.02.2024 and on such surrender the learned Special

Judge shall take necessary steps to entrust the conviction warrant. If the

accused fails to surrender on or before 05.02.2024, the learned Special

Judge shall issue Non-Bailable Warrant and shall take necessary steps to
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198

carry out the sentence imposed against the accused.

49) The Registry is directed to forward the record along with copy of

the judgment to the Court below as above without fail.

Consequently,miscellaneousapplicationspending,ifany,shallstand

closed.

Result of the case

The Criminal Appeal is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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 [2024] 1 A.P.L.R. 199 : 2024:APHC:3180
AKULA KRISHNA MURTHY, E.G.DISTRICT AND ANOTHER
Vs.
THE STATE, REP. BY PUBLIC PROSECUTOR, HIGH COURT, HYD
(Criminal Appeal 1541 of .2010)
29 January 2024
Sri Justice A V Ravindra Babu

Issue for Consideration

Whether the prosecution proved that both A-1 and A-2 intentionally insulted
and humiliated PW.1 in the name of his caste within the public view as
alleged and whether the prosecution proved the charge under Section
3(1)(x) of the SCs and STs Act, 1989 framed against the accused beyond
reasonable doubt?

Whether the unexplained abnormal delay of 21 days in lodging FIR is fatal to

the case of prosecution?

Headnotes

Abuse and humiliation under caste name- Conviction under Section 3(1)(x)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989- Inordinate delay of 21 days in lodging FIR- It is very unsafe to
sustain a conviction when report came to be lodged after about 21 days
without there being proper explanation. The facts and circumstances are
such that there was every probability and possibility for due deliberations
and concoctions on account of the delay - Fit case to extend benefit of doubt
in favour of the accused - The appellants/accused stands acquitted of the
charge under Section 3(1)(x) of the SC and ST Act,1989, Appeal allowed
(Para-21).

Acts

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989
 Digital High Court Reports
[2024] 1 A.P.L.R. 200

Keywords

Inordinate delay in lodging FIR, No proper explanation for delay, Benefit of

doubt;

Case Law/Reference Cited

Thulia Kali v. State of Tamil Nadu

Appearances For Parties

For Appellant: Sri K. Prudvi Raj, Rep, Sri K. Chidambaram.

For Respondents: Public Prosecutor for the State

Case Arising From

The judgment, dated 07.12.2010, in Sessions Case No.31 of 2010, on the

file of the Court of Special Judge for trial of cases under the Scheduled
Castes and Scheduled Tribes (POA) Act, East Godavari at Rajahmundry
where under the learned Special Judge found Appellants/Accused Nos. 1
and 2 (A-1 and A-2) guilty of the charge under Section 3(1)(x) of the
ScheduledCastesandScheduledTribes(PreventionofAtrocities)Act,1989
convicted them under Section 235(2) of the Code of Criminal Procedure,
1973 and sentenced them to suffer Rigorous Imprisonment for six months
each and to pay a fine of Rs.500/- each in default to suffer Simple
Imprisonment for one month each.

Judgment/Order

Challenge in this Criminal Appeal is to the judgment, dated 07.12.2010, in

Sessions Case No.31 of 2010, on the file of the Court of Special Judge for trial of
cases under the Scheduled Castes and Scheduled Tribes (POA) Act, East
Godavari at Rajahmundry (for short, ‘the learned Special Judge’), where under the
learned Special Judge found Appellants/Accused Nos.1 and 2 (A-1 and A-2) guilty
of the charge under Section 3(1)(x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the SC & ST Act’), convicted
them under Section 235(2) of the Code of Criminal Procedure, 1973 (for short,
‘the Cr.P.C’) and, after questioning them about the quantum of sentenced,
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201

sentenced them to suffer Rigorous Imprisonment for six months each and to pay a
fine of Rs.500/- each in default to suffer Simple Imprisonment for one month each.

2. The parties to this Criminal Appeal will hereinafter be referred to as

described before the trial Court, for the sake of convenience.

3. The Sessions Case No.31 of 2010 on the file of the Court of Special
Judge, Rajahmundry arose out of committal order in PRC No.45 of 2009 on the
file of the Court of Additional Judicial Magistrate of First Class, Amalapuram (for
short, ‘the learned Magistrate’) pertaining to Crime No.100 of 2009 of Allavaram
Police Station, East Godavari District registered for the offence under Section
3(1)(x) of the SC & ST Act.

4. The case of the prosecution, in brief, according to the averments in the

charge sheet filed by the Sub-Divisional Police Officer (SDPO), Amalapuram, in
the aforesaid Crime, is that Akula Krishna Murthy (A-1) and Akula Srinivasa Rao
(A-2) are the father and son and residents of Kodurupadu Village, Allavaram
Mandal belongs to Kapu caste as such belong to the category of Other Caste.
LW.1 – Geddam Jivan Kumar is also resident of the same Village and belongs
to the category of Scheduled Caste - Mala. He is correspondent of Gollapalli
Suryarao College, Allavaram and an elder of Kodurupadu Village. A-1 and A-2
are also residents of same village. Long back one Nadipalli Ramabhadra Raju
of Kodurupadu village gave his land to the landless poor people of Kodurupadu
Village, who divided the said land into 24 house sites with three roads and some
of them constructed thatched houses. A-1 and A-2 are staying by constructing
thatched houses on either side of the center road at its entrance, occupying the
road without facilitating others to enter into their house sites. Hence, LW.2 to
LW.7 namely Akula Venkateswara Rao, Akula Pulleswara Rao, Akula Chinna
Krishna, Akula Anantha Lakshmi, Akula Gunavathi and Akula Venkateswara
Rao and LW.8 – Khandavalli Rambabu represented the Tahsildar and elders for
pacification of the issue. On 14.07.2009, LW.1 along with the Tahsildar (LW.10)
and VRO (LW.11) visited the disputed place and enquired about the issue. They
asked LW.8 and A-1 to leave 2 feet width place by each of them as a way for
which LW.8 accepted the proposal and A-1 denied the same. So, the Tahsildar
left the place by stating that he is going to conduct a survey for resolving the
issue. A-1 grew wild on the decision taken by LW.1 and Revenue Officials and
attacked LW.1 along with his son, behaved highhandedly against him about his
involvement in the said issue and abused him in a filthy language raising his
caste name. LW.11 – Tahsildar, Allavaram Mandal issued caste certificate of
LW.1 and A-1 and A-2. LW.1 belongs to Scheduled Caste Mala and accused
 Digital High Court Reports
202

belongs to Kapu Community. LW.12 – SI of Police, Allavaram received written

report from LW.1 and registered the FIR in Crime No.100 of 2009 on
04.08.2009 at 10:00 p.m. LW.13 – SDPO, Amalapuram took up investigation
being appointed by the Superintendent of Police, East Godavari District,
Kakinada vide proceedings C.No.7475/C3/2009, dated 05.08.2009. During
course of investigation, he visited the scene of offence, prepared rough sketch
and examined the same. He examined all the witnesses and recorded their
statements. LW.13 arrested the accused on 22.08.2009 and sent them for
remand. Hence, the charge sheet.

5. The learned jurisdictional Magistrate took cognizance of the charge sheet

and numbered it as PRC No.45 of 2009. After appearance of the accused and
after completing the necessary formalities under Section 207 Cr.P.C, PRC
No.45 of 2009 was committed to the Special Sessions Court, Rajahmundry and
thereafter it was numbered as Sessions Case No.31 of 2010.

6. After appearance of the accused before the learned Special Sessions

Judge, Rajahmundry, charge under Section 3(1)(x) of the SCs and STs Act was
framed and explained to the accused in Telugu, for which they pleaded not
guilty and claimed to be tried.

7. In order to establish the guilt against the accused, the prosecution before
the learned Special Judge, examined PWs.1 to PW.11 and got marked Exs.P-1
to P-7 and further the defence counsel got marked Exs.D-1 to D-4 during the
course of cross-examination of PW.1 and PW.8 and further the Investigating
Officer as the case may be.

8. After closure of the evidence of the prosecution, both the accused were
examined under Section 313 Cr.P.C with reference to the incriminating
circumstances appearing in the evidence let in for which they denied the
incriminating circumstances and stated that they have no defence witnesses.

9. The learned Special Sessions Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found the accused
guilty of the charge under Section 3(1)(x) of the SCs and STs Act and
accordingly convicted and sentenced them as above
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203

10. Felt aggrieved of the conviction and sentence, the un-successful accused
therein filed the present Criminal Appeal.

11. Now, in deciding this Criminal Appeal, the points that arise for
consideration are:

1) Whether the prosecution before the learned Special Sessions Judge,

Rajahmundry proved that on 14.07.2009 both A-1 and A-2 intentionally insulted
and humiliated PW.1 in the name of his caste within the public view as alleged?

2) Whether the prosecution proved the charge under Section 3(1)(x) of the SCs
and STs Act framed against the accused beyond reasonable doubt?

3) Whether the impugned judgment is sustainable under law and facts and
whether there are any grounds to interfere with the same?

POINT Nos.1 to 3:

12. Sri K. Prithvi Raj, learned counsel, representing Sri K. Chidambaram,

learned counsel for the Appellants/Accused Nos.1 and 2, would contend that
PWs.2 to PW.6 are the interested witnesses because some how or the other
they developed some sort of dissatisfaction and grouse against A-1 for allegedly
occupying some extent of the lane and in fact A-1 and A-2 never occupied any
lane meant for them. When PW.7, PW.1 and others highhandedly asked A-1 to
spare two feet width on the ground that he encroached, he denied the same.
So, the Tahsildar left the place so as to conduct a survey. Except that nothing
was happened. Though the alleged incident was happened on 14.07.2009,
report came to be lodged on 04.08.2009, after about 21 days after due
deliberations, concoctions and embellishments. PW.1 disowned his case by
saying that on 14.07.2009 itself he lodged a report and that the date of Ex.P-1
was tampered and that further he did not make any mention in Ex.P-1 that the
delay was happened on the account of the fact that the matter was referred to
elders. Though PW.1 presented Ex.P-1 report on 04.08.2009 but he does not
know the contents of Ex.P-1 with regard to delay and alleged tampering of it.
The SI of Police testified that on 04.08.2009 only Ex.P-1 was presented. The
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204

SDPO commenced the investigation after getting an order and he examined

PW.1 on 11.08.2009. PW.1 stated before SDPO as in Ex.D-1 as if as the matter
was referred to elders, the report could not be lodged immediately. Even
according to Ex.D-2, which was marked through the examination of PW.8 -
MPTC and proved through IO the matter was alleged to be referred to elders.
So, when the prosecution did not explain the delay properly, the learned Special
Judge, without there being any basis against the SI of Police, gave a finding that
the SI of Police had kept Ex.P-1 without registration of FIR though he received it
on 14.07.2009 till 04.08.2009. The prosecution did not challenge the testimony
of SI of Police and SDPO. So, the observations made by the learned Special
Judge are contrary to the evidence and without giving any opportunity to SI of
Police to hear his version. So, if the finding of the learned Special Judge that SI
of Police suppressed registration of the FIR for about 21 days is disbelieved,
PW.1 has to explain the delay but he did not explain the delay. Somehow or
other PWs.2 to PW.6 are interested in the case of prosecution. On account of
the abnormal delay, deliberations and concoctions cannot be ruled out. PWs.1
to PW.5 high handedly came upon the house of accused to demolish it and A-1
felt heart attack and was admitted in the hospital and when he brought the facts
to the notice of the Police they did not take any action and ultimately anticipating
action from the Police PW.1 lodged report belatedly on 04.08.2009. So, the
prosecution did not explain the delay and on account of the delay, possibility of
deliberations cannot be ruled out. In support of his contention, he would rely
upon a decision of the Hon’ble Apex Court in Thulia Kali v. State of Tamil
Nadu1 as regards the delay. He would contend that accused are entitled for
acquittal.

13. Sri N. Sravan Kumar, learned Special Assistant, representing learned

Public Prosecutor, would submit that though PW.1 presented a report on
04.08.2009, according to the evidence available on record, but the findings of
the learned Special Judge are different that the SI of Police withheld Ex.P-1
without registration of FIR. Even if there was any delay, there was no possibility
for deliberations and concoctions. PWs.1 to PW.6 have no reason to depose
false against the accused. PWs.2 to PW.5 belongs to the community of the
accused and they have no reason to grouse against the accused. The learned
Special Judge, on thorough appreciation of the evidence on record, convicted
the accused as such the Appeal is liable to be dismissed. He would submit that
PWs.2 to PW.6 fully supported the evidence of PW.1.

14. Firstly, this Court would like to deal with the date of offence i.e., the date
of offence was alleged on 14.07.2009. As seen from Ex.P-1, there was an
endorsement by PW.10 - SI of Police itself that on 04.08.2009 at 10:00 p.m. he
registered the FIR as a case in Crime No.100 of 2009 under Section 3(1)(x) of
the SC and ST Act. If Ex.P-1 is taken into consideration with reference to

1 1972 (3) SCC 393

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investigation of SI of Police, coupled the date as 04.08.2009, it means that it

was presented on 04.08.2009. Of course there was a correction in the date
column. It is not known who made such correction when its presentation was on
04.08.2009. PW.1 gave a contra version that on the date of offence itself by
12:00 noon he presented the written report to Allavaram PS, which is Ex.P-1.
He states that last sentence ‘peddalalo pettutavalana aalasyam ayinadi’ (the
issue was placed before the elders hence delayed) was not written by him. So,
PW.1 wanted to say that it was presented on 14.07.2009 and the reason for
delay was not written by him because there was no delay and there was also a
correction as if the date of presentation was on 04.08.2009.

15. During the course of cross-examination, he stated that Police did not give
any receipt to him when he presented Ex.P-1 and even he did not demand for
such receipt. He gave the report i.e., Ex.P-1 to the Head Constable and the
Head Constable stated that after arrival of the SI to the Police Station, they
would come to his village. After presenting Ex.P-1, he took the phone number of
SI of Police from the Head Constable and informed him by phone about the
incident. SI came to his house two days after presenting Ex.P-1.

16. It is to be noted that according the evidence of PW.10 on 04.08.2009 at

about 10:00 p.m. he received report from PW.1 and registered it as a case in
Crime No.100 of 2009 for the offence under Section 3(1)(x) of the SC & ST Act
and informed to the SDPO. During cross-examination, PW.10 testified that
PW.1 personally presented the report i.e., Ex.P-1. The last sentence in Ex.P-1
was there by the time PW.1 presented it. He denied that A-1 reported to him on
14.07.2009 that PWs.1 to PW.3 and PWs.5 and PW.6 and LW.4 came upon his
house and tried to assault him. It is to be noted that the evidence of PW.1 that
he presented Ex.P-1 to the Head Constable on 14.07.2009 had no support from
PW.10. Prosecution did not examine the so called Head Constable before
whom PW.1 was alleged to have presented Ex.P-1. As seen from the evidence
of PW.11 – Investigating Officer on the date of registration of FIR i.e., on
04.08.2009, he obtained the permission from Superintendent of Police and he
received permission on 05.08.2009. As seen from Ex.P-6 - proceedings, it reads
that the FIR was registered on 04.08.2009. The prosecution did not elicit
anything from PW.11 as to whether PW.1 presented the report before the Head
Constable on 14.07.2009. It is no doubt true that there was a correction in the
date column underneath Ex.P-1 and it reads with correction as 04.08.2009 and
the explanation for delay i.e., ‘peddalalo pettutavalana aalaysam ainadi’ was in
small letters. According to PW.10, it was there when it was presented.

17. It is to be noted that the learned Special Judge did not pose any
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questions to PW.10 – SI of Police. However, the learned Special Judge in the

judgment made observations that for obvious reasons PW.10 – SI of Police did
not register FIR and kept Ex.P-1 with him and ultimately registered FIR on
04.08.2009 with delay. It is very difficult to accept the findings of the learned
Special Judge. Though there was a statutory duty on the part of the Police to
issue a copy of FIR to the de-facto complainant but here the conduct of PW.1 is
such that he did not wait for arrival of the so called SI when Head Constable
was present on 14.07.2009, though he presented Ex.P-1. He would not have
kept quiet for a period of 22 days, if really, FIR was not registered. PW.1 was
not an illiterate. He was a literate and was working as a Correspondent of a
Private College. It is not a case where the learned Special Judge posed any
questions before PW.10 or the SDPO as to why adverse comments cannot be
made against PW.10. In my considered view, without there being any
opportunity to PW.10, the learned Special Judge made adverse comments
without any support that PW.10 without registering FIR kept Ex.P-1 with him
and that it is nothing but a deliberate act of PW.10 in registering a Crime 21
days after the incident. So, without there being any basis and without posing
any questions to PW.10 and the SDPO concerned, such findings were given by
the learned Special Judge.

18. It is to be noted that the case of the prosecution is that PW.1 presented
Ex.P-1 on 04.08.2009. Prosecution did not elicit anything from PW.10 and
SDPO concerned for explaining anything contra that it was presented on
14.07.2009. So, in my considered view, the very findings given by the learned
Special Judge as if PW.10 deliberately registered the FIR after 21 days, though
PW.1 presented the same on the date of offence cannot stand to any reason.
Such findings could not have been arrived at by the learned Special Judge
without giving any opportunity to PW.10 as to why adverse comments cannot be
made against him. The very conduct of PW.1 in keeping quiet though he
presented Ex.P-1 on 14.07.2009 warranted this Court to assume that the
genesis of the occurrence was suppressed. Accused contended that under the
cover of Exs.D-3 and D-4, they sent representations to the SP and anticipating
action, a false report was presented on 04.08.2009. Irrespective of the merit of
these contentions, this Court is of the considered view that the prosecution
failed to explain the delay in lodging Ex.P-1 after about 21 days. According to
PW.1, there was no delay at all but according to the evidence on record, there
was abnormal delay. It is to be noted that the learned Special Judge did not
comment anything about the investigation conducted by the SDPO. He
categorically deposed that PW.1 stated before him as in Ex.D-1. Ex.D-1 falsifies
the version of PW.1 that he presented Ex.P-1 on 14.07.2009. Apart from this, as
seen from Ex.D-2 marked through PW.8, PW.1 told him that accused came and
abused him and then he advised them to sort out the issue by mediation. As
seen from the evidence of PW.7 – Tahsildar, he deposed as A-1 did not agree
to leave any site and picked up a quarrel, he left that place stating that he would
send a surveyor and get the land measured. According to the evidence of
PW.10, after the Tahsildar left out, he heard some galata and he did not
observe but PW.1 stated that accused were abusing him. As seen from Ex.D-2
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207

marked through PW.8 accused stated to him that while he was leaving the place
accused abused him. Exs.D-1 and D-2 probabilizes a theory that there was a
proposal for settling the issue with regard to verbal quarrel. So, PW.8 – MPTC
of Allavaram and further PW.9 – VRO deposed that PW.1 intimated to them that
accused were abusing them and they advised them for an amicable settlement.
So, it all goes to show there appears to be a petty quarrel at the site. So, the
mention in Ex.P-1 that the delay was happened when the matter was referred to
elders was not spoken to by PW.1. If the issue was serious enough, there would
not have been any advice to PW.1 to go for any settlement before the elders. In
my considered view, though there was abnormal delay of 21 days in lodging
Ex.P-1, it is evident from the report, PW.1 denied the same as such prosecution
miserably failed to explain the delay properly. If really, there was an abuse in
the name of caste of de-facto complainant (PW.1), certainly, there would not
have been any occasion to refer the issue to the mediators. The evidence of
PW.8 and PW.9 means that PW.1 did not disclose them about the alleged
abuses in the name of the caste. So, the thing is that prosecution did not explain
the delay properly.

19. Now, this Court has to see whether the un-explained delay in lodging
Ex.P-1 is fatal to the case of prosecution. As evident from the evidence of PW.1,
the de-facto complainant and PW.2 to PW.6, it is a fact that they supported the
case of prosecution by deposing that A-1 and A-2 abused PW.1 in filthy
language in the name of his caste. The contention of the prosecution is that
PW.2 to PW.5 belonged to the caste of accused and if really the incident is not
true, they would not have supported the case of prosecution. It is very difficult to
assume that simply because PWs.2 to PW.5 belonged to the caste of the
accused, they would not depose false against the accused. There is no dispute
that one Nadipalli Ramabhadra Raju gifted Ac.0.80 cents of the land to
Kodurupadu village and they divided the same into 24 house sites with three
lanes. It was alleged that A-1 and LW.8 encroached some place pertaining to a
lane thereby blocking its access to other people. According to the prosecution,
PW.1 is an elder mediated the issue and when he mediated the issue along with
the Tahsildar, A-1 and A-2 grew wild and abused him in filthy language. This is
the substance of the allegations.

20. As evident from the evidence of PWs.2 to PW.5 some how or the other
they are quietly interested in the lane alleged to be encroached by A-1 and
LW.8. In that view of the matter, they have got any amount of interest in the
lane. Apart from this, PW.6 deposed that at the advice of Tahsildar, he agreed
to leave 2 feet width of his site but when such proposal was made to accused
by Tahsildar, they stated that they would consume poison if they are forced to
leave any site. So, by virtue of above, it appears that A-1 and A-2 had their
grievance when they were asking to leave 2 feet width space for a passage on
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the ground that they did not encroach anything. As seen from the evidence of
PW.1 in cross-examination, he did not conduct any survey and only on seeing
he felt that A-1 occupied the site of the lane. On seeing the formation of three
lines, he could understand that accused occupied the lane portion. PW.1 being
the elder was supposed to mediate the issue and he could not have come to a
conclusion that A-1 occupied the site of the lane by just visiting the disputed
site. In the circumstances, Tahsildar acted wisely when A-1 declined to leave 2
feet width space by stating that he would get the site surveyed through a
Surveyor. So, the proper course for resolving the issue is only to make a survey
with the help of a Surveyor but contrary to that the Revenue Officials and PW.1
wanted to enforce the obligation on A-1 and A-2 to leave some space and it
appears that as such proposal irked A-1 and A-2, there ensued a verbal quarrel.
According to PW.8 and PW.9 they did not reveal that PW.1 told them that
accused abused them in the name of the caste. Therefore, if PW.1 had told
them about abuses in the name of his caste, they would not have advised PW.1
to refer the matter to the elders. So, all this goes to show that the quarrel at the
disputed site was something petty in nature. When PWs.2 to PW.5 had interest
in the disputed land and PW.6 had also an interest and when the quarrel
appears to be a petty one, according to the evidence of PW.8 – MPTC and
PW.9 – VRO due deliberations and embellishments so as to magnify the case
on account of delay cannot be ruled out. The un-explained abnormal delay of 21
days in lodging Ex.P-1 and further the denial made by PW.1 that there was no
delay is fatal to the case of prosecution, in my considered view. Without there
being any proper basis, the learned Special Judge simply believed the version
of PW.1 that on 14.07.2009 he presented Ex.P-1 and made adverse comments
against the SI of Police.

21. Having regard to the above, this Court is of the considered view that it is
very un-safe to sustain a conviction when report came to be lodged after about
21 days without
st
there being proper explanation. The Hon’ble Apex Court in
Thulia Kali (1 supra) insisted for the prompt lodging of report to
st
the Police to
avoid any embellishments and afterthoughts. In Thulia Kali (1 supra), there
was delay of 20 hours in lodging the FIR which was held to be suspicious. In the
present case on hand, there was delay of 21 days in lodging Ex.P-1. PW.1 did
not admit that there was delay but the evidence shows that there was a delay.
Having regard to the above, this Court is of the considered view that the facts
and circumstances are such that there was every probability and possibility for
due deliberations and concoctions on account of the delay. Hence, it is a fit
case to extend benefit of doubt in favour of the accused. Hence, I hold that the
prosecution failed to prove the charge framed against the accused beyond
reasonable doubt as such accused are entitled for acquittal.

22. In the result, the Criminal Appeal is allowed setting aside the conviction
 Digital High Court Reports
209

andsentenceimposedagainsttheAppellants/AccusedNos.1and2inSessions
Case No.31 of 2010, dated 07.12.2010, on the file of the Court of Special Judge
for trial of cases under the SCs & STs (POA) Act, East Godavari at
Rajahmundry.Accordingly,theAppellants/AccusedNos.1and2standacquitted
of the charge under Section 3(1)(x) of the SC and ST Act. The fine amount, if
any, paid shall be refunded to them after Appeal time is over.

23. The Registry is directed to take steps immediately under Section 388
Cr.P.C. to certify the judgment of this Court including the trial Court record, if
any, to the trial Court. A copy of this judgment be placed before the Registrar
(Judicial), forthwith, for giving necessary instructions to the concerned Officers
in the Registry.

Consequently, Miscellaneous Applications pending, if any, shall stand

closed.

Result of the case

The Criminal Appeal is allowed.

Headnotes prepared by : Dr. Gollapudi Kalyani

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