THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.4330 of 2008 Date: .06.2011 Between: A. Vidyavathi … Petitioner AND 1. The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad. 2. Akula Sandhya … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.4330 of 2008 ORDER: The petitioner seeks for quashing of the proceedings in C.C.No.1471 of 2007 on the file of the II Metropolitan Magistrate, Cyberabad at L.B. Nagar, Hyderabad in connection with Crime No.671 of 2007. The petitioner initially was arrayed as the second accused in the case. Her son was the first accused. Her son, however, died on 19.10.2007. While the case would appear to have been taken on file by the learned Metropolitan Magistrate in September, 2003, it is the case of the petitioner that no case is made out against her prima facie and that the First Information Report (FIR) as well as the charge sheet are liable to be quashed against her. In effect, the petitioner is seeking for quashing of the charge sheet, as she is the only accused (as A.2) who is presently facing trial. 2. The second respondent was the daughter-in-law of the petitioner. The first accused who was the son of the petitioner was the husband of the second respondent. Alleging that the petitioner and her son subjected the second respondent to cruelty, the second respondent filed a complaint with the Saroornagar Police Station on 12.06.2007. The FIR was promptly registered by police on the same day. After due investigation, holding that a case is made out against the accused 1 and 2, police laid charge sheet against the petitioner and her son. As already stated, the son of the petitioner, who was arrayed as the first accused in C.C.No.1471 of 2007, breathed his last in October, 2007 itself. Sri V. Sankara Rao, learned counsel for the petitioner also pointed out that even before filing of the complaint, the husband of the petitioner died on 07.01.2007. The copies of the death extracts of the husband of the petitioner as well as the husband of the second respondent, who was the first accused in the case, were filed by the petitioner. 3. The case of the petitioner is that no case is made out prima facie against the petitioner and that C.C.No.1471 of 2007, therefore, is liable to be quashed as against the petitioner. Smt. K. Lalitha, learned counsel for the second respondent submitted that a case under the provisions of the Domestic Violence Act was filed against the petitioner and her other son and that the request of the petitioner to quash the case under the Domestic Violence Act was dismissed by the High Court. She further contended that after due investigation, police laid charge sheet against the two accused and albeit the husband of the second respondent is no more, the case against the petitioner as the second accused would survive. 4. The learned counsel for the second respondent would slyly suggest that the death of her husband was not normal and that he died, as he was suffering from AIDs. The indirect suggestion is that the second respondent was subjected to physical cruelty by her husband suppressing the fact that he was suffering from AIDs. It may be noticed that the death of the husband of the second respondent and the real cause of the death of the husband of the second respondent are beside the point. They are not relevant for the purpose of this enquiry. 5. The learned counsel for the petitioner pointed out that the petitioner lost her husband in January, 2007 and her son in October, 2007 and that the petitioner thus suffered double misfortune. He submitted the two factors as a ground to show sympathy towards the petitioner. The petitioner was described to be about 52 years old by 2008 when the case was laid. She is the about 55 years old now. She lost her husband and her son. All the sympathies should necessarily go with her. However, the question of the maintainability of a criminal complaint and a criminal case does not depend upon the sympathy and do not depend upon the merciful attitude towards the party. The maintainability or otherwise of C.C.No.1471 of 2007 is primarily a question of law. Sympathy would play its role in awarding sentence after conviction is recorded. The petitioner is venturing to smother the case at the threshold. Consequently, the death of the husband and the son of the petitioner have no relevance in determining the merits of the case. 6. It is the case of the second respondent that the petitioner and the late husband of the second respondent used to harass the second respondent for unlawful demand for money, that they subjected the second respondent to physical and mental cruelty and that the petitioner and the late husband of the second respondent thus committed the offence u/s.498-A IPC. Sri V. Sankara Rao, learned counsel for the petitioner placed reliance upon Neelu Chopra v. Bharti[1]. In that case, the disgruntled daughter-in-law of the family laid a complaint against the members of the family of her husband under Sections 406 and 498-A r/w 114 IPC. When the parents-in-law approached the Punjab and Haryana High Court to quash the criminal proceedings against them, the High Court dismissed the application. The Supreme Court considered as to the nature of the allegations that should be made, more particularly so, in a matrimonial dispute. The Supreme Court held that mere mentioning of relevant sections and the language deployed by the sections would not suffice to make out a prima facie case against the accused. The Court considered that the particulars of the offence committed by the each accused and the role played by them in the commission of the offence should be stated in the complaint. Holding that the complaint was vague insofar as it relates the parents-in-law, the Supreme Court quashed the criminal proceedings against the parents-in-law. 7. In Shakson Belthissor v. State of Kerala and another[2], it was observed in Para 23: “We, therefore, now proceed to examine as to whether the case would fall under explanation (b) of Section 498-A of IPC constituting cruelty of the nature as mentioned in explanation (b). In order to constitute cruelty under the said provision there has to be harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or a case is to be made out to the effect that there is a failure by her or any person related to her to meet such demand. When the allegation made in the FIR and charge-sheet is examined in the present case in the light of the aforesaid provision, we find that no prima facie case even under the aforesaid provision is made out to attract a case of cruelty.” 8. Finally, the learned counsel for the petitioner placed reliance upon Preeti Gupta v. State of Jharkhand[3]. It was again a case of matrimonial dispute where allegations were made against the sister-in-law and unmarried brother-in-law by the complainant-wife u/s.498-A IPC and u/s.3 and 4 of the Dowry Prohibition Act. Indeed, the wife laid the case against the husband as well. Inasmuch as the claim is against the sister-in-law and unmarried brother-in-law, no specific allegations were made in the complaint. Added to it, the brother-in-law and sister-in-law were residing at different place from the matrimonial home of the complainant-wife. The Supreme Court opined that the implication of the sister-in-law and brother-in-law is meant to harass and humiliate the relatives of the husband and that the same would be an abuse of the process of law. It is submitted by the learned counsel for the petitioner that the second respondent made a sweeping comment against the petitioner about her harassment and that the criminal case is liable to be quashed in view of the decisions relied upon by him. 9. Smt. K. Lalitha, learned counsel for the second respondent drew my attention to para 21 of the judgment in Shakson Belthissor’s case (supra), which reads: “In the light of the aforesaid language used in the section, the provision would be applicable only to such a case where the husband r the relative of the husband of a woman subjects the said woman to cruelty. When the ingredients of the aforesaid Section are present in a particular case, in that event the person concerned against whom the offence is alleged would be tried in accordance with law in a trial instituted against him and if found guilty the accused would be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The said section contains an explanation, which defines “cruelty” as understood under Section 498A IPC. In order to understand the meaning of the expression ‘cruelty’ as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature a to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman. 10. Holding that the offence under Section 498-A IPC would be made out when the husband or the relatives of the husband of the woman subjected the woman to cruelty, the Supreme Court explained that “cruelty” envisaged by the explanation to Section 498-A IPC would be made out when the conduct of the husband or the relatives of the husband of the woman are of a such nature as to force the woman to commit suicide or such serious injury or danger to her life, limb or health whether mental or physical. It is the case of the learned counsel for the second respondent that the second respondent prima facie established cruelty as envisaged by Section 498-A IPC and that it is not a fit case to quash the proceedings against the petitioner. 11. The complaint, which was registered as FIR, was lodged by the petitioner herself. The second respondent described herself as the house maker. However, admittedly, the second respondent is a Post-Graduate in M.B.A. She herself drafted the complaint, which was registered as FIR by police. In her complaint, the allegation against the petitioner is that the petitioner used to support her son always. Beyond this, there is no averment as to any specific conduct of the petitioner towards the constitution of the offence u/s.498-A IPC. 12. In the second page of the complaint, the second respondent claimed “because she (the petitioner) is the only main person for all these issues”. The learned counsel for the petitioner contended that the averments in the complaint are general and are of sweeping nature and that unless a specific allegation is made against the petitioner, the case cannot be proceeded against the petitioner. The three decisions referred to above make it clear that the allegations must be concrete and that the role played by the accused should specifically and clearly be alleged before such an accused can be roped in as an accused. 13. Based upon these decisions, the learned counsel for the petitioner contended that the two references to the petitioner by the respondent in her complaint are not specific and are as vague as anything, so much so no case against the petitioner can be made out. To counter the claim of the petitioner, the learned counsel for the second respondent placed reliance upon Section 161 Cr.P.C. statement of the second respondent before police. In her pre-trial statement, the second respondent claimed that when the second respondent complained to the petitioner about the misconduct of the late first accused, the petitioner declared that (late) A.1 was a male person, that he should not be questioned about his outside affairs and that the second respondent should keep quiet. The second respondent further stated in her statement that the bag containing her clothes was thrown out by her husband and by the petitioner directing the second respondent to go away from the house. I consider that these allegations cannot constitute the offence u/s.498- A IPC. Merely not interfering with the dispute between the husband and the wife and assisting the husband to throw away the clothes of the wife from the house, I am afraid, do not constitute cruelty within the meaning of Section 498-A IPC. 14. In fact, the cat is out of the bag from the last four lines of the statement of the second respondent in her Section 161 Cr.P.C. statement. She stated that the petitioner had been attempting to leave for U.S.A. and that if the petitioner left for U.S.A., the dispute could not be resolved. It is the contention of the learned counsel for the petitioner that the complaint was lodged by the second respondent to blackmail and force the petitioner to succumb and to submit the demands of the second respondent. I do not intend to go into and issue a finding on this aspect. Suffice it to state that the allegations in the complaint and the pre-trial statement to police by the second respondent prima facie do not constitute any offence against the petitioner. 15. Inter alia, the learned counsel for the second respondent contended that the attempt of the petitioner and her other son in getting the case under the provisions of the Domestic Violence Act quashed was thwarted is a pointer that a prima facie is made out against the petitioner. The cause of action for the present case and the cause of action in the case under the provisions of the Domestic Violence Act are quite different. The petitioner and the late husband of the second respondent are the accused in the case from which the present petition arose. The petitioner herein and her other son who is residing in USA are the opposite parties in the case under the provisions of the Domestic Violence Act. Any finding by the High Court in a petition u/s.482 Cr.P.C. with reference to the allegations under the provisions of the Domestic Violence Act are irrelevant for determination of this petition. 16. As already pointed out, the allegations in the complaint and in the Section 161 Cr.P.C. statement of the second respondent prima facie do not constitute any offence against the petitioner herein. The allegations against the petitioner are vague and sweeping. No concrete overt acts are attributing against the petitioner to constitute a prima facie case against the petitioner. I agree with the contention of the learned counsel for the petitioner that such a complaint is not maintainable, more so, after the demise of the husband of the second respondent. I, therefore, hold that no prima facie is made out against the petitioner in C.C.No.1471 of 2007 on the file of the II Metropolitan Magistrate, Cyberabad at L.B. Nagar and consequently, the proceedings in C.C.No.1471 of 2007 are hereby quashed. As the petitioner is the only accused as on today in C.C.No.1471 of 2007, the entire case in C.C.No.1471 of 2007 consequently stands quashed. 17. Accordingly, the Criminal Petition is allowed. _______________ K.G. SHANKAR, J Date: .06.2011 Isn [1] (2009) 10 SCC 184 [2] 2009 (2) ALD (Crl.) 497 (SC) [3] 2010 Crl.L.J. 4303