HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.4158 of 2009 ORDER:- The four petitioners herein are A-2 to A-5 in the calendar case C.C.No.298 of 2004 on the file of the Court of XIII Additional Chief Metropolitan Magistrate, Hyderabad (trial court). They filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short Code), for quashing of the said case against them. 2. The point that therefore arises for determination in this petition is whether there are grounds to quash the said case against the petitioners. 3. The point arises in the following circumstances. There are five accused in the case. It is registered for offences punishable under Sections 498-A, 406, 420 and 384 IPC and Sections 4 and 6 of the Dowry Prohibition Act, 1961, read with Section 34 IPC. A-1 Nitin H Kolhapure at the time of commission of the alleged offences was the husband of the de facto complainant Smt Deepali Nithin Kolhapure who is the second respondent herein. Their marriage admittedly took place on 15.02.2001 at a function hall situated in Lingampally area of R.R. District. Petitioners 1 and 2 are the parents of A-1, while petitioners 3 and 4 are the sister and brother respectively of A-1. The parents of de facto complainant and herself were residents of Hyderabad at the relevant time. 4. The prosecution version is that at the time of marriage on the demand of A-1 and the petitioners herein the parents of the de facto complainant paid a sum of Rs.10 lakhs cash and also gave 25 tolas of gold ornaments and 7 Kgs of silver ornaments and also household ornaments worth Rs.75,000/- towards dowry. At the time of marriage A-1 was in United States and after marriage again he left for United States but did not take the de facto complainant with him. It is stated by the prosecution that subsequently A-1 and the petitioners herein demanded additional dowry of Rs.20 lakhs and also a motor car and since the de facto complainant’s father was not in a position to pay the same, A-1 deserted her and all the petitioners including A-1 subjected her to cruelty and ultimately the de facto complainant gave the report to the CID police. The said police have investigated the case and charge sheeted the accused for the aforesaid offences relating to harassment of a married woman and dowry offences including the offence of misappropriation or criminal breach of trust in respect of the amounts and gold and silver ornaments belonging to the de facto complainant and her parents. 5. The petitioners have raised two pleas for quashing the case. The first is that the de facto complainant never stayed with them or even the first accused and that the allegations relating to giving of dowry and also harassment are false. It is also pleaded by them that no part of the cause of action also arose within the local limits of the trial court and that the case is not maintainable. Their second plea is that subsequently the marriage between A-1 and the de facto complainant was dissolved and the de facto complainant also married another person on 13.07.2006 and she is now living with her husband (i.e. husband by second marriage in USA) and that she is also not interested in attending the court and consequently the case against them should be quashed on that ground. 6. Sri M.V.Raja Ram, the learned counsel for petitioners, relying upon the above two pleas of the petitioners argued that the allegations in the charge sheet even if they are believed in toto do not disclose any offences against these petitioners and consequently on that ground and also on the point of jurisdiction which is already mentioned supra the case should be quashed. Regarding the second marriage of the de facto complainant he argued that she married again after the marriage between her and A-1 was dissolved and this is an added ground for quashing the case. In support of this contention Sri Raja Ram placed reliance upon a decision of the Supreme Court given in Sundar Babu v. State of Tamil Nadu[1]. The argument of Sri Raja Ram is that since the de facto complainant herself after divorce with A-1 married another person and is staying in United States happily, a quietus must be put to this criminal case so that the petitioners can now live in peace as the de facto complainant has nothing to do with their family now. 7. On the other hand, Sri C.Padmanabha Reddy, the learned Senior Counsel appearing for Sri C.Praveen Kumar the counsel for second respondent, argued that the allegations in the charge sheet do disclose the offences mentioned in it and the various pleas raised by the petitioners pertain to the merits of the matter and raise disputed questions of fact which have to be decided only in trial and therefore, he says, this is not a fit case for interference under Section 482 of the Code. Even on the question of territorial jurisdiction of the trial court, Sri Padmanabha Reddy says that on the facts/allegations a part of cause of action can be said to have arisen within the territorial limits of the trial court and consequently that is not a ground for quashing the case. Then turning to the ground of the petitioners plea that the de facto complainant married another person after divorce between her and A-1, Sri Padmanabha Reddy argued that mere re-marriage of the de facto complainant is not a ground for quashing the case as the alleged offences were committed during the period of subsistence of the marriage between the de facto complainant and A-1 and therefore the petitioners are liable to be tried for the said offences as per law and the guilt or innocence of the petitioners is to be decided and consequently that is also not a ground for quashing the case. 8. So far as the first ground raised by the petitioners is concerned, it may be noted that a perusal of the pleas taken by them in this quash petition would show that they all pertain to the merits of the matter. For instance, the main plea taken in the petition is that the de facto complainant never stayed with them and that they never demanded any dowry at the time of marriage or additional dowry subsequently and they never had anything to do with the family life of the de facto complainant with A-1. This is however denied by the prosecution and their version is a demand for dowry was made at Hyderabad where the marriage took place and subsequently a demand for additional dowry was made when she stayed with petitioners and after she returned to her parents place they again insisted for additional dowry and supported A-1 stating that unless the additional dowry is paid she cannot join the society of A-1. It may be noted that this plea of the petitioners in the face of the rival plea set up by the prosecution would clearly show that it is a disputed question of fact and has to be decided on evidence. It is also contended that the de facto complainant was not at all interested in the marriage. This is also a disputed question of fact. The allegations in the charge sheet which are to the above effect would show that they do disclose the offences relating to cruelty to a woman and dowry harassment. Hence the plea of the petitioners under the first ground being a disputed question of fact cannot be gone into by this court in this petition and it is accordingly rejected. 9. The petitioners’ counsel pointed out that at least so far as the petitioners 3 and 4 are concerned they are the sister and brother of A-1 and therefore it cannot be said that they would gain any benefit or any share in the additional dowry which is demanded by A-1 or his parents and even if the de facto complainant brings any presents or cash or other properties from her parents they cannot be said to have any share in it and consequently the case against them should be quashed. It is true that this contention may apparently sound forceful. It may however be noted that in the charge sheet it is specifically alleged that a sum of Rs.20 lakhs was demanded for investment in the textile business of A-2 and A-5 i.e. petitioners 1 and 4 herein and there are allegations to the effect that all the petitioners demanded for this amount also. It is also alleged in the charge sheet that the 3rd and 2nd petitioners made an additional demand for 20 tolas of gold jewellery apart from the cash of Rs.20 lakhs demanded for the textile business of petitioners 1 and 4. These allegations may be true or may not be true but the said question has to be decided on evidence. What should be noted is that the charge sheet allegations would show the complicity of petitioners 3 and 4 also. Hence their plea of denial on this aspect would again become a disputed question of fact and cannot be decided by this court. Hence it follows that for the aforesaid reasons the first plea taken by the petitioners which relates to the merits of the matter has to be rejected. Having regard to the allegations made against them the principle laid down in Preeti Gupta v. State of Jharkhand[2] cannot also be applied to them. Accordingly the plea of 3rd and 4th petitioners is also rejected. 10. Even on the question of territorial jurisdiction of the trial court which has been raised by the petitioners, it may be noted that dowry was demanded at Hyderabad and additional dowry was also demanded and the demand was placed on the parents of the de facto complainant at Hyderabad and she was left with her parents without allowing her to joint the society of A-1. Hence a part of cause of action can be said to have arisen in the case within the territorial limits of the trial court. Added to this it is held in Trisuns Chemical Industry v. Rajesh Agarwal[3] that a Magistrate taking cognizance of a case need not necessarily have territorial jurisdiction to take cognizance. This principle has been laid down basing upon Section 190(1) of the Code which says that any Magistrate of the first class can take cognizance of any offence upon a police report disclosing such offence. Relying upon the words “any Magistrate of the first class” used in Section 190(1) of the Code, the Supreme Court laid down the above principle and pointed out that if accused have any objection as to the territorial jurisdiction of the court, he or they can raise the same before the learned Magistrate and it can be decided by such Magistrate. This is also a minus point for the petitioners on the question of territorial jurisdiction. Accordingly, the plea of the petitioners regarding territorial jurisdiction is also rejected. 11. Then turning to the second ground which is based upon re- marriage of the de facto complainant is concerned, I am of the opinion that it is difficult to entertain the said ground also for the following reasons. On this aspect, at first, a mention should be made about Sundar Babu’s case (1 supra) relied upon by Sri Raja Ram. It is true that in the said case also on the complaint of the wife for the offence punishable under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961, the concerned police after completion of the investigation filed charge sheet on 08.06.2000. The complainant therein re-married on 24.08.2002 after the dissolution of the marriage. In the said decision, these two facts were considered. However going into the merits of the matter or the allegations in the case it was held by the Supreme Court that in the facts and circumstances of that case held that the allegations were unfounded and that even a cursory perusal of the complaint therein would show that the said case falls within category 7 of the illustrative parameters highlighted in the decision of the Supreme Court given in State of Haryana vs. Bhajan Lal[4]. That illustration No.7 given in Bhajan Lal’s case (4 supra) is that if 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, it was held that the case can be quashed. Thus what should be noted is that the above case was decided on its own merits and no rule of law has been laid down in it to hold that in every case where the wife re- marries after divorce the offences under Section 498-A IPC and the Dowry Prohibition Act would get wiped out. 12. In the present case it may be noted that the complaint was given on 07.01.2003 to the police and the police have investigated into the case and the charge sheet bears the date 25.08.2004 and the case has been taken cognizance of by the trial court in 2004 itself and numbered as C.C.No.298 of 2004. The re-marriage of the de facto complainant took place on 30.07.2006 i.e. two years after her marriage with A-1 was dissolved. 13. It may also be noted that it cannot be said as a rule of law that in every case relating to woman harassment by her husband and his relatives the offences would come to an end or would cease or be wiped out when the woman has re-married following a divorce between herself and her husband against whom she gave complaint. No decision of Supreme Court or a provision of law has been brought to my notice to conclude that in every case of a re-marriage of a woman, the offences under Sections 498-A IPC and Dowry Prohibition Act, 1961, committed against her by her husband and his relatives during the subsistence of that marriage with her former husband would ipso facto cease to be offences with her remarriage after divorce. It may be noted that once the offence is alleged to have been committed the general principle is that it does not cease to be an offence even if the victim dies and the same principle can be applied here also. Hence I agree with the contention of Sri C.Padmanabha Reddy. 14. One last contention raised by the petitioners’ counsel is that the case is of 2003 and the de facto complainant is not at all coming forward to give evidence as she is in America now and he also pointed that the de facto complainant and her parents are not interested in the case and therefore it should be quashed. It is difficult to accept this contention also. It is now well settled that a mere delay in the trial of a matter is by itself no ground to quash a case. Hence the said contention also cannot be accepted. 15. For the aforesaid reasons, the point is answered against the petitioners and this criminal petition is accordingly dismissed. It is however seen that the case is of 2003 and the petitioners are at liberty to take up their pleas regarding delay in trial before the trial court and the same shall be considered by it and appropriate steps shall be taken by it to dispose of the case as expeditiously as possible. 16. Parting with the matter the learned counsel for the petitioners submitted that petitioners are staying in Sholapur and it has become difficult for them to attend every date of hearing in the case in the trial court and consequently their presence should be dispensed with. It may be noted that of the petitioners, petitioners 2 and 3 are ladies and they may have their own problems in attending the trial court for every date of hearing. Accordingly their presence alone for every date of hearing is dispensed with and they can be represented by their counsel. The trial court shall however be at liberty to order their presence as and when it considers their presence necessary. ______________________ N. RAVI SHANKAR, J 10th August, 2011. CVRK [1] 2009 (2) ALT (Crl.) 359 (SC) [2] (2010) 7 SCC 667 [3] (1999) 8 SCC 686 [4] 1992 SCC Supp (1) 335 = AIR 1992 SC 604