THE HON'BLE MR. JUSTICE RAJA ELANGO
CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010
01-03-2011
Crl.P.No.2976 of 2009
Mr.Rajesh Gutta,S/o.late Apparao Gutta,Age 33 years,R/o.12727 Vista Del
NorteApt # 508, San Antonio TX 78216, USA
1.State of A.P., Through P.P.,High Court of A.P., Hyderabad AND 2 OTHERS
Counsel for the Petitioners: MR. RAJA GOPALLAVAN TAYI,
Counsel for the Respondent No.1: PUBLIC PROSECUTOR.
^Counsel for the Respondent No.2: MR.C.PRAVEEN KUMAR
CRIMINAL PETITION Nos.2976 of 2009 and 4921 of 2010
:COMMON ORDER:
Since the de facto complainant in both the petitions is one and the same and the
petitioners are the husband and mother-in-law of the daughter of the complainant
respectively, both the petitions heard together and are being disposed of by
this common order.
Petitioners approach this Court with a prayer to quash the proceedings against
them in C.C.No.507 of 2006 on the file of the XIII Additional Chief Metropolitan
Magistrate, Hyderabad, whereby they are facing charge for the offence punishable
under Sections 498-A, 494 and 511 of IPC and 3 and 4 of the Dowry Prohibition
Act.
Heard both sides.
The marriage of the de facto complainant's daughter with the petitioner in
Crl.P.No.2976 of 2009 took place in the year 2004. The complaint is lodged on
31.07.2006. For the disposal of this petition, for better appreciation this
Court is of the view that the entire complaint can be reproduced even though it
is in length:
Date: 31st July 2006.
To
The Station House Officer,
Malakpet,
Hyderabad.
Sub: Complaint regarding demand for dowry, accepting dowry, demand for
additional dowry and subjecting my daughter Mrs.Pallavi to extreme cruelty on
failure to meet the said demands.
Sir/Madam,
1. I, Ram Mohan Rao, V.Pasupuleti, a native of Hyderabad and residing in U.S.A.
submit the following facts with regard to the offences committed by my Son-in-
law Mr.Rajesh Gutta and his family members in subjecting my daughter Mrs.Pallavi
to extreme cruelty during her matrimonial life in India especially in Hyderabad
and later on in U.S.A., for demanding dowry before the marriage and for unlawful
demands after the marriage and planning for bigamy.
2. I state that during the middle of the year 2004, I was looking for a marriage
alliance for my daughter a graduate with Honours in Chemistry and working as a
supervisor in a pharmaceutical company in Philadelphia, Pennsylvania, U.S.A. I
got the reference of Mr.Rajesh Gutta residing in Birmingham, Alabama State,
U.S.A. in July 2004 through Bharat matrimony website. I contacted him over
phone and found out details of his family members, given as Smt.Swarajya Lakshmi
(mother), Satish Gutta (Younger brother) Sakhamuri Rama Chandra Rao (adopted
father), S. Parvathi Devi(adopted mother). On my invitation Mr.Rajesh visited my
house on 29.08.2004 and then I contacted his elders in India for the alliance.
I was shocked at the terms and pre-conditions put forth for finalizing the
alliance, which included payment of Rs.15 lakhs dowry before marriage (document
enclosed), a diamond ring for the bridegroom and expensive clothes for their
relatives numbering 13 families. Though I was opposed to the practice of dowry
demand, I was forced to accept the same.
3. I state that on account of the above 'dowry' demands by the said persons and
insistence for payment of dowry before marriage, I transferred 30,000/- U.S.
dollars to bank account No.001-1-427374/602601508969 of Mrs.Gutta Swarajya
Lakshmi maintained in ICICI bank in India on 12th October 2004 as per their
demand (document enclosed).
4. On 4th Nov-2004 the above said persons visited our house at Plot No.166, Sri
Puram Colony, Malakpet, Hyderabad - 500 016 and insisted that an additional
amount of Rs.2,50,000/- must be paid to Smt.G.Swarajya Lakshmi, Rs.1,50,000/-
being to complete the agreed sum of Rs.15.00 lakhs towards dowry and
Rs.1,00,000/- for jewellery for the bridegroom, I obtained a Demand Draft for
Rs.2,50,000/- bearing No.0717843372 drawn on SBI, Main Branch, Hyderabad on 16th
November 2004 favoring Mrs.G.Swarajya Lakshmi i.e. two days before the marriage
scheduled on 18th November 2004.
5. I state that the marriage of my daughter with Mr.Rajesh Gutta was performed
as per Hindu rights and traditions on 18th November, 2004 at Jaya Gardens,
Somajiguda, Hyderabad (documents & photographs enclosed) in the most befitting
manner and registered in Court on 20th November, 2004 (document enclosed).
6. Immediately after the marriage Mrs.G.Swarjya Lakshmi demanded that I should
pay an additional sum of Rs.1,50,000/- towards Adapaduchu Katnam at the marriage
venue for his cousin sisters, two of whom were living abroad while the third
sister Mrs.Sashikala residing in India. This amount was paid in cash to
Mrs.Sashikala who attended the wedding.
7. I state that after the marriage of my daughter she was in India till 27th
November, 2004 and immediately after the marriage, my son-in-law, his mother and
his younger brother started humiliating my daughter with nasty comments for
trivial issues. On the day of their marriage my son-in-law informed my daughter
that he was offered Rs.50.00 Lakhs as dowry for an Australian alliance but
married my daughter, as she was a U.S. Citizen.
8. I state that before the marriage Mr.Rajesh was staying at Alabama and my
daughter was employed in Philadelphia, Pennsylvania and both of them had
mutually decided that after the marriage my daughter will continue her job and
commute to Alabama. In February/March 2005, Mr.Rajesh my son-in-law forced my
daughter to resign her job threatening that he would abandon her and the
marriage if she did not leave the job and move to Alabama.
9. I submit that after my daughter joined him at Alabama, my son-in-law started
demanding for more money on some pretext of the other including purchase of a
flat in Chennai, India.
10. In June 2005 my son-in-law forced my daughter to increase the credit limit
of her credit card and made her transfer 8,000/- US dollars for clearing his
pre-marital debts. On resistance my daughter was frequently subjected to
physical assault and cruelty.
11. In Sep.2005 when my daughter and my son-in-law came to India for 15 days my
daughter's mother-in-law humiliated, abused and insulted her and most of the
times she was put under house-arrest.
12. When my daughter returned to U.S. on 25th Sep.2005 along with her husband
she was in nervous wreck condition on account of the continuous harassment by
her husband and mother-in-law. My daughter came to our house on 30th Sep. 2005
in order to regain normally and requested her husband to come over to
Philadelphia to sort out the issues but he refused. The conduct of my son-in-law
and his close relatives namely. Mrs. G. Swarajya Lakshmi, Mr.Rama Chandra Rao
and Mrs. Parvathi resulted in my daughter going into a state of depression,
which drove her to a suicidal mood on several occasions.
13. On 14th Oct.05 my son-in-law came to my house, apologized for his cruel
behavior and actions and made a firm commitment that he would change his
behavior towards my daughter. It was a great news for all of us and my daughter
showed her willingness to join her husband in the 1st week of Nov'2005.
14. All of us went to Alabama on 4th Nov.2005 but my son-in-law was not present
at the house. To my daughter's surprise she found an envelope containing a
credit card in her name, which she had never applied. On enquiry she came to
know that her husband had obtained a credit card in her name using her social
security number and 5,000/- U.S. dollars had already been withdrawn through the
said card. This act of my son-in-law was nothing but an identity-theft and
fraud. Anticipating further fraudulent transactions by her husband my daughter
alerted the Credit Card Bureau.
15. Immediately after we returned from Alabama my son-in-law rang to my daughter
and requested her to join him. Smelling a foul-play of being killed she did not
go.
16. We came to know through reliable sources that my son-in-law has been
planning to get married again though his marriage with my daughter was still
subsisting. This was confirmed when we checked his profile on websites of two
reputed marriage bureaus (Bharat Matrimonial & Kaakateeya Matrimonial)
(documents enclosed) wherein he had renewed his profile for marriage on 22nd
Oct.2005, claiming himself to be a 27 year old eligible bachelor, which is
nothing but clear case of attempting to commit bigamy.
17. Simultaneously my son-in-law started making false accusations
assassinating my daughter's character and filed for divorce in December 2005.
The above acts had a severe effect on my daughter's physical and emotional
condition due to which she went into a state of acute depression.
18. The present miserable state of my daughter is because of the greed of my
son-in-law and his parents in demanding additional dowry for monetary gains and
continued harassment and mental & physical torture by the above said persons.
19. We have recently come to know through reliable sources that my Son-in-law
Mr.Rajesh Gutta is getting married again, scheduled to be held in USA in the
first week of August'2006.
20. I also bring to your kind notice that my daughter's mother-in-law
Smt.Swarajya Lakshmi Gutta, presently staying in Chennai, will leave for USA in
the early hours of Tuesday the 1st August 2006 to attend her elder son's
marriage. We are also informed that the younger brother of my son-in-law will
also reach USA from London by the time of the marriage.
I state that I have come to Hyderabad only to register this complaint as the
marriage was performed as per Hindu rights and traditions at Hyderabad and also
registered at Hyderabad and therefore I request you to register this FIR and
initiate appropriate actions. Additional documents / details will be submitted
in due course of time.
Once again I request you to kindly initiate immediate action in preventing Mrs.
Swarajya Lakshmi Gutta, one of the accused, from leaving India from Chennai to
USA.
As the accused are residing in Chennai and in U.S.A for which a specialized
investigating agency is necessary to bring the culprits to book, therefore, I
request you to take necessary action against the following persons.........."
On the basis of the said complaint, the Investigating Officer registered FIR and
examined the witnesses. The statement of L.W.1 who is the complainant herein is
reproduction of the complaint. The aggrieved party, wife of the complainant, is
not examined by the Investigating Officer as envisaged under the provisions of
the Code of Criminal Procedure. It is stated in the charge sheet that he has
contacted the said witness and she confirmed the contents of the complaint, but
he has not recorded any statement by examining her personally and also the
Investigating Agency relied on the statement forwarded by the said witness
attested by a notarized public. This court is of the view that the said
procedure and reliance on the statement is not legally acceptable. The reading
of Section 162 Cr.P.C. runs as follows:
Section 162. Statements to police not to be signed: Use of statements in
evidence:-
1) No statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any record thereof, whether in
a police diary or otherwise, or any part of such statement or record, be used
for an purpose, save as hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when such statement was made;
Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as aforesaid, any
part of his statement, if duly proved, may be used by the accused, and with the
permission of the Court, by the prosecution, to contradict such witness in the
manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and
when any part of such statement is so used, any part thereof may also be used in
the re-examination of such witness, but for the purpose only of explaining any
matter referred to in his cross-examination.
2) Nothing in this section shall be deemed to apply to any statement falling
within the provisions of clause (1) of Section 32 of the Indian Evidence Act,
1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
It is the admitted case of the respondent that she has forwarded a statement
attested by a notarized public signed by her. The section specifically prevent
the officer from obtaining signature in the statements recorded under Section
162 Cr.P.C. and also the Section 161 clearly speaks about the manner with which
the investigation be conducted and the statements to be recorded.
Section 161 Cr.P.C. also runs as follows:
"Examination of witnesses by police - 1) Any police officer making an
investigation under this Chapter, or any police officer not below such rank as
the State Government may, by general or special order, prescribe in this behalf,
acting on the requisition of such officer, may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so, he shall make a
separate and true record of the statement of each such person whose statement he
records.
In which it is clearly stated that the police Officer has to question the victim
girl, witnesses and contradict the witnesses and record the same. In the
present case, the statement of the victim girl is concerned, the investigation
officer stated in the charge sheet that he has contacted her and she confirmed
the contents of the complaint given by the complainant. This Court is of the
view that the Investigating Officer has to confirm the allegations mentioned in
the complaint with the aggrieved person. This Court is of the view that the
Officer, who is investigating the case, should record the statement as per the
above said provisions. The first duty of the Investigating Officer is to find
out the probability and truthfulness of her complaint unless otherwise the
complainant's version appraised by the Investigating Officer with the facts and
circumstances of the case. Merely recording the statement as stated by the
witnesses cannot be called as investigation. Investigation includes examination
of the witnesses, confronting the witnesses on the basis of materials collected
by the Investigating Officer and also the version of the person who is aggrieved
because of the said complaint. Mere reproduction of the complaint without
proper examination cannot be called as statement recorded during investigation.
The entire reading of the complaint and charge sheet, it is evident that the
entire occurrence took place in the United States of America. The allegations
contained in the complaint also regarding the occurrences in the United States
of America. Of course, the offence committed by a person, which is punishable
under the law in India, he can be prosecuted for the offence committed abroad.
But, at the same time Section 188 of Cr.P.C. mandates that no court shall take
cognizance except the previous sanction by the Central Government when an
offence is committed outside the jurisdiction of India.
Section 188 of Cr.P.C. reads as follows:
Offence committed outside India:
When an offence is committed outside India---
a) by a citizen of India, whether on the high seas or elsewhere; or
b) by a person, not being such citizen, on any ship or aircraft registered in
India,
he may be dealt with in respect of such offence as if it had been committed at
any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this
Chapter, no such offence shall be inquired into or tried in India except with
the previous sanction of the Central Government.
In such a case, the cognizance taken by the learned Magistrate also bad in law.
Further, on perusal of the complaint and charge sheet, the main allegations are
as follows:
1. The complainant's daughter was humiliated in front of others in U.S.A.;
2. To the surprise of the complainant's daughter, she saw a credit card which is
in the house of the accused for which she has not applied;
3. The husband insisted her to enhance the credit limit for the credit card
which was in her possession;
4. The petitioner in Crl.P.No.2976 of 2009 informed as he is unmarried one and
tried to have another marriage and also he is subscribing in the matrimonial web
site even after the marriage; and
In the last portion of the complaint, it is stated that the petitioner in
Crl.P.No.2976 of 2009 tried to marry another lady and to celebrate the said
marriage, he tried to go to abroad.
And in the said complaint, here and there some references were made regarding
the demand of dowry. It is well settled that mere demand of dowry will not
attract an offence under Section 498-A IPC.
Section 498-A IPC runs as follows:
Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects
such woman to cruelty, shall be punished with imprisonment for a term which may
extend to three years and shall also be liable to fine.
Explanation: For the purposes of this section, "cruelty" means---(a) any willful
conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to
her to meet such demand.
There are two elements in the above said section which includes the
explanation, which clearly indicates 'cruelty' means by way of harassment
driving a woman to commit suicide or to suffer with injury, second element of
the said section indicates that the harassment should be in connection with
demand of dowry.
On the entire reading of the complaint, the above said ingredients are totally
not attracted, more particularly, the petitioner in Crl.P.No.4921 of 2010
against the mother-in-law of the victim girl.
Further the learned counsel for the respondent is not in a position to inform
why the wife of the petitioner has not lodged the complaint and what prevented
her from lodging a complaint. Even based on the present complaint, which is in
the nature of hearsay, this Court is of the view that no offence made out as
alleged in the charge sheet.
Hence, the proceedings against the petitioners in C.C.No.507 of 2006 on the file
of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, are hereby
quashed.
With the above observation, both the Criminal Petitions are allowed. The
miscellaneous petitions, if any, filed along with the criminal petitions shall
stand closed.
