Varala Bharath Kumar vs The State Of Telangana on 5 September, 2017

1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1565 OF 2017
(Arising from SLP(Crl.) No.5458/2016)

Varala Bharath Kumar and another ..Appellants
Versus
State of Telangana and another ..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR,J.

Leave granted.

2. The impugned order dated 28.03.2016 passed by the

High Court of Judicature at Hyderabad for the State of Telangana

and the State of Andhra Pradesh in Criminal Petition No. 3302 of

2016, as well as, the criminal proceedings initiated against the

appellants in C.C. No. 442 of 2015 on the file of XIV Metropolitan
Signature Not Verified

Digitally signed by
ASHOK RAJ SINGH
Date: 2017.09.06

Magistrate, Cyberabad at L.B. Nagar, arising out of Crime No. 151
11:46:36 IST
Reason:

of 2015 of Saroornagar Women Police Station, Cyberabad,
2

registered for the offences punishable under Sections 498A and 406

of the Indian Penal Code, are called in question.

3. The brief facts leading to this appeal are as under:

The marriage between the first appellant and the second

respondent (complainant) was solemnized at Hyderabad as per

Hindu rites and rituals. They lived together for about 20 days in

matrimonial house. Thereafter, the first appellant left India and

went to Australia, where he is working as an engineer. It is alleged

by the second respondent, that during her stay at the matrimonial

house for the period of afore-mentioned 20 days, the first appellant

did not come close to the complainant and he was not even willing

to talk freely with the complainant, despite her sincere efforts to

come close to her husband. It is also alleged, that the first appellant

never behaved as a dutiful husband and used to evade the

complainant whenever she approached to him; he maintained the

distance even during nights; when asked, the first appellant

informed the complainant that he was suffering from viral fever; the

first appellant took treatment in the hospital for two-three days,

and even after discharge from the hospital, he did not come closer
3

to the complainant; the first appellant postponed the nuptial night

ceremony and he was not interested in co-habitation. Even after

the first appellant left for Australia, the family members of the first

appellant including the second appellant were not talking to the

complainant. The complainant left for her parents’ house and

started residing there. It is further alleged, that the parents of the

complainant had spent about rupees fifteen lakhs for the marriage

ceremony and rupees twenty lakhs for the gold ornaments. On

these, among other grounds, complaint came to be lodged by the

second respondent.

4. The police after registering the crime for the offences

punishable under Sections 498A and 406 of the Indian Penal Code

investigated and filed the charge sheet, which culminated in CC No.

442 of 2015, pending on the file of XIV Metropolitan Magistrate,

Cyberabad, L.B. Nagar.

5. The appellants herein approached the High Court of

Judicature at Hyderabad under Section 482 of the Code of Criminal

Procedure seeking to quash the proceedings initiated against the

appellants. The High Court by the impugned order has rejected the
4

prayer of the appellants to quash the proceedings initiated against

them, and instead directed appellant no.1 to file an application

under Section 70(2) Cr.P.C. seeking to recall NBW issued against

him and directed appellant no.2 to file an application under Section

205 Cr.P.C. seeking to dispense with his presence before the trial

Court. Hence, this appeal.

6. Respondent No.2, though served, has chosen to remain

absent. We have heard learned counsel for the rival parties who are

present and perused the record. Having carefully perused the first

information report, as well as, the contents of the charge sheet, we

find that the ingredients of Sections 498A and 406, IPC are not

forthcoming. The entire story narrated by the complainant does not

attract the afore-mentioned provisions, as there has not been any

dowry demand of the appellants or harassment to the second

respondent. Before proceeding further, it would be relevant to note

the provisions of Sections 498A, 405 and 406 of the Indian Penal

Code, which read thus:

“498A. 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
5

for a term which may extend to three years and shall also
be liable to fine.

Explanation:-For the purpose 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.

405. Criminal breach of trust – Whoever, being in any
manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of
law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust,
or willfully suffers any other person so to do, commits
“criminal breach of trust”.

Explanation [1] – A person, being an employer [of an
establishment whether exempted under section 17 of the
Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not] who deducts
the employee’s contribution from the wages payable to
the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being
in force, shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the
said Fund in violation of the said law, shall be deemed to
have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
6

Explanation 2 – A person, being an employer, who
deducts the employees’ contribution from the wages
payable to the employee for credit to the Employees’ State
Insurance Fund held and administered by the
Employees’ State Insurance Corporation established
under the Employees’ State Insurance Act, 1948 (34 of
1948), shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the
said Fund in violation of the said Act, shall be deemed to
have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.

406. Punishment for criminal breach of trust – Whoever
commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may
extend to three years, or with fine, or with both.”

7. It is by now well settled that the extraordinary power

under Article 226 or inherent power under Section 482 of the Code

of Criminal Procedure can be exercised by the High Court, either to

prevent abuse of process of the court or otherwise to secure the

ends of justice. Where allegations made in the First Information

Report/the complaint or the outcome of investigation as found in

the Charge Sheet, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute any offence

or make out the case against the accused; where the allegations do

not disclose the ingredients of the offence alleged; where the
7

uncontroverted allegations made in the First Information Report or

complaint and the material collected in support of the same do not

disclose the commission of offence alleged and make out a case

against the accused; 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, the power under Article 226 of the Constitution of India or

under Section 482 of Code of Criminal Procedure may be exercised.

While exercising power under Section 482 or under

Article 226 in such matters, the court does not function as a Court

of Appeal or Revision. Inherent jurisdiction under Section 482 of

the Code though wide has to be exercised sparingly, carefully or

with caution and only when such exercise is justified by the tests

specifically laid down under Section 482 itself. It is to be exercised

ex debito justitiae to do real and substantial justice, for the

administration of which alone courts exist. The court must be

careful and see that its decision in exercise of its power is based on

sound principles. The inherent powers should not be exercised to
8

stifle a legitimate prosecution. Of course, no hard and fast rule can

be laid down in regard to cases in which the High Court will

exercise its extra ordinary jurisdiction of quashing the proceedings

at any stage.

8. We are conscious of the fact that, Section 498A was

added to the Code with a view to punish the husband or any of his

relatives, who harass or torture the wife to coerce her or her

relatives to satisfy unlawful demands of dowry. Keeping the

afore-mentioned object in mind, we have dealt with the matter. We

do not find any allegation of subjecting the complainant to cruelty

within the meaning of Section 498A of IPC. The records at hand

could not disclose any willful conduct which is of such a nature as

is likely to drive the complainant to commit suicide or to cause

grave injury or danger to life, limb or health (whether mental or

physical) of the complainant. So also, there is nothing on record to

show that there was a demand of dowry by the appellants or any of

their relatives, either prior to the marriage, during the marriage or

after the marriage. The record also does not disclose anywhere that

the husband of the complainant acted, with a view to coerce her or
9

any person related to her to meet any unlawful demand of any

property or valuable security.

9. The ingredients of criminal breach of trust are also not

forthcoming from the records as against the appellants. The

allegations contained in the complaint and the charge sheet do not

satisfy the definition of criminal breach of trust, as contained in

Section 405 of the I.P.C. In view of the blurred allegations, and as

we find that the complainant is only citing the incidents of

unhappiness with her husband, no useful purpose will be served in

continuing the prosecution against the appellants. This is a case

where there is a total absence of allegations for the offences

punishable under Section 498A and Section 406 of the I.P.C. In the

matter on hand, the allegations made in the First Information

Report as well as the material collected during the investigation,

even if they are taken at their face value and accepted in their

entirety, do not prima facie constitute the offences punishable

under Section 498A and 406 of the IPC against the

accused/appellants. So also the uncontroverted allegations found

against the appellants do not disclose the commission of the offence
10

alleged and make out a case against the accused. The proceedings

initiated against the appellants are liable to be quashed.

10. Accordingly, we allow this appeal, set aside the impugned

order of the High Court, and quash the proceedings initiated

against both the appellants in CC No. 442 of 2015, pending on the

file of XIV Metropolitan Magistrate, Cyberabad at L.B. Nagar, arising

out of Crime No. 151 of 2015 of Saroornagar Women Police Station,

Cyberabad, Registered for the offences punishable under Sections

498A and 406 of the Indian Penal Code.

…..…………………………………….J.

[ARUN MISHRA]

………………………………………….J.

[MOHAN M. SHANTANAGOUDAR]

NEW DELHI;

SEPTEMBER 05, 2017.

Leave a Comment

Your email address will not be published. Required fields are marked *