HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL REVISION CASE No.1488 of 2004 Date: 20-01-2012 Between: M.D. Ravikanth. - - - Petitioner/Accused No.1. Versus The State of A.P., Rep. by its Public Prosecutor, through Sub-Inspector of Police, P.S. Lallaguda, Hyderabad and Another. - - - Respondents/De-facto Complainant. This Court made the following : THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL REVISION CASE No.1488 of 2004 ORDER: The husband is the petitioner in this revision. It is seen that on the complaint of his wife, the concerned police have registered a case in Crime No.103 of 2004 under Section 498-A IPC of P.S. Lallaguda, Hyderabad. 2. In that case, which was still at the investigation stage, the then Sub-Inspector of Police of Lallaguda P.S. filed a requisition before the learned XXII Metropolitan Magistrate, Hyderabad, for sending the husband for potency test and that requisition was registered as Crl.M.P.No.2851 of 2004 in the said court of Magistrate. It is seen from the police requisition that this request was made as the wife complained that the husband was not potent and therefore the marriage was not consummated. 3. The learned Magistrate by her order dated 20.08.2004 allowed the aforesaid Crl.M.P.No.2851 of 2004 and directed “the police to take the husband for potency test examination on 30.08.2004”. It is this order which is challenged by the husband in this revision. The learned Magistrate did not give any reasons for allowing the petition but allowed it by observing as follows. “On perusal of the material on record it is found that the defacto complainant alleged to have been harassed by the accused and that her marriage was not consummated. There is no such denial on the part A1 of the allegation made by defacto complainant. Undoubtedly the defacto complainant has every right praying the court to send the accused for potency test.” Thereafter the above direction was given to the police. The preamble of the impugned order would show that one Sri V.Rami Reddy, Advocate, appeared for the husband i.e. the respondent in the above petition. The material papers filed by the petitioner’s counsel would also show that a counter was filed by the husband in the above Crl.M.P.No.2851 of 2004 denying the allegations made in the police requisition regarding his impotency and he specifically pleaded that the said petition was filed to harass and humiliate him. 4. It should also be noted that the material papers filed by the husband would disclose that he himself filed O.P.No.303 of 2003 in the Court of the I Senior Civil Judge, Ranga Reddy District, for divorce against the wife on the ground that she did not agree for cohabiting with him. A mention is made about the above divorce O.P. in the counter of the husband also filed in the above petition. Thus, despite the denial of allegations made in the police requisition and the case pleaded therein by the husband in the counter filed by him, the learned Magistrate without taking any pains to look into the counter of the husband conveniently observed that the husband has not denied the case of the wife for potency test. Thus this observation of the Magistrate is totally against the record and is in my opinion sufficient to set aside the same. Further the order also does not contain any reasons as to why the test was ordered and the learned Magistrate ought to have recorded reasons for the same as the potency test is not to be ordered lightly just for the sake of asking for it even if the husband has remained ex parte in the matters. Hence the impugned order is set aside. 5. It is seen that a divorce O.P. filed by the husband is already pending making allegations against the wife. It may also be noted that the impugned order is dated 20.08.2004 and more than seven years have elapsed by now and this court already granted interim suspension of the impugned order on 01.09.2004 and later on it was extended from time to time and ultimately it was extended until further orders on 10.11.2004. In the circumstances without going into the merits of the matter further, it is made clear that if it is found necessary now by the police to apply for a potency test in a case like this they can file a fresh requisition and the learned Magistrate may dispose it off by giving due notice to the husband. 6. This revision is accordingly disposed of. _______________________ N. RAVI SHANKAR, J 20th January 2012 Dsh/Cvrk