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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

J U D G M E N T

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

Magistrate, Cyberabad at L.B. Nagar, arising out of Crime No. 151

of  2015  of  Saroornagar  Women  Police  Station,  Cyberabad,

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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

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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

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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

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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.

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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

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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

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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

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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

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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.