- JUDEGMENT SUMMARY: T.S.K. Ashwin Kumar VersusTubati Srivalli & Ors.
- DATE OF JUDGEMENT: 06th November 2020
- JUDGES: HON'BLE MR. CHIEF JUSTICE S.A. BOBDE, HON'BLE MR. JUSTICE A.S. BOPANNA AND HON'BLEMR. JUSTICE V. RAMASUBRAMANIAN
- REFERENCE: Contempt Petition (Civil) No. 444 of 2020 in Special Leave Petition (Criminal) No. 10686 of 2020
- PARTIES: T.S.K. Ashwin Kumar – Petitioner
- Tubati Srivalli & Ors. - Respondents
SUBJECT:
The following judgement deals with Indian Penal Code, 1860 Sections 420 and 365which criminalizes the act of Cheating and dishonestly inducing delivery of property and Kidnapping or abducting with intent secretly and wrongfully to confine person. Along with Sections 120B and 498A of Indian Penal Code which criminalizes Criminal Conspiracy and Cruelty on a Women by her Husband or relative of husbandand Section 133 of Criminal Procedure which gives Court the Right to Examine the Accused.
AN OVERVIEW :
1. The sole petitioner in the Contempt Petition (who is also the first petitioner in the SLP) is the husband of the 1st respondent in both these proceedings. They got married at Hyderabad on 07.12.2008 and a male child was born in the wedlock on 04.04.2010.
After the marriage, the couple went to the United States of America and they came back to India in November, 2015.
2. On 20.12.2015 the 1st respondent-wife filed a criminal complaint in Crime No.477 of 2015 against the 1st petitioner herein as well as his parents and other close relatives, for alleged offences under Section 498A read with Section 120B and Sections 420 and 365 of the IPC. A charge-sheet was filed on 12.03.2017. A supplementary charge-sheet was also filed on 20.12.2017. However, the proceedings against persons shown as Accused Nos.4 to 6 were quashed by this Court by an order dated 21.08.2018 in Criminal Appeal No.1045 of 2018, on the ground that they are not the immediate family members of the 1st petitionerhusband, but distant relatives.
3. They cannot desist from recording their displeasure at the manner in which the proceedings before the Trial Court have dragged on for the past 15 months, after this Court passed an order on 16.07.2019 with the consent of the parties, for the conclusion of the trial within a period of 2 months.
IMPORTANT PROVISIONS:
Penal Code:
1. Section 420 in The Indian Penal Code- Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
2. Section 365 in The Indian Penal Code- Kidnapping or abducting with intent secretly and wrongfully to confine person. —Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
3. Section 120B of Indian penal Code- Punishment of criminal conspiracy. —
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
4. Section 498A of Indian Penal Code-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 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 wilful 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.
The Code of Criminal Procedure, 1973:
5. Section 133 of The Code of Criminal Procedure -Power to examine the accused
(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub- section(1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
ISSUES:
The following are the major issues framed by the Supreme Court-
· Whether interim order passed by the High Court for the State of Telangana at Hyderabad, staying the trial of a criminal complaint, during the pendency of a criminal petition arising out of an order of the Trial court refusing to reopen and recall PW-1 to PW-4is justifiable or not?
· Whether the 1st respondent-wife is in any way responsible for the delay?
· Whether, after having consented to cooperate in the conclusion of the trial within a period of two months, the 1st respondent-wife has been dragging on the matter under some pretext or the other?
ANALYSIS OF THE JUDGEMENT:
1. The petitioner was on bail by virtue of an order passed by the Trial Court on 29.12.2017, subject to the condition that he shall not leave the State of Telangana or the country without prior permission of the Court, approached the Trial Court for relaxation of the bail condition, so that he could travel to USA.
2. But the said petition was dismissed by the Trial Court by an order dated 20.06.2018. Therefore, the 1st petitioner approached the High Court and the High Court, by an order dated 08.11.2018 passed in Criminal Petition No.11411 of 2018 granted relaxation of the bail conditions and allowed the 1st petitioner to go to USA after furnishing bank guarantee in a sum of Rs. 3,00,000/- (Three Lakhs Only), for his appearance as and when called upon to do so.
3. Challenging the order of the High Court granting relaxation of the bail conditions, the 1st respondent-wife filed a Special Leave Petition in SLP (Crl) No.10686 of 2018. The SLP (Crl) No.10686 of 2018 was disposed of by this Court by an order dated 16.07.2019, by consent of parties. By this order this Court directed the Trial Court to conclude the trial of the criminal case within a period of two months. Though a period of 15 months has now elapsed from the date of the said order passed by this Court, the trial has not concluded.
4. Blaming the 1st respondent-wife for adopting dilatory tactics and not allowing the trial to get completed within the period stipulated by this Court, the husband has come up with the Contempt petition. On 28.07.2020 notice was ordered in the Contempt Petition. It appears that in the meantime, the State, through the Assistant Public Prosecutor filed a petition before the Trial Court on 17.01.2020 to reopen the evidence and to recall PWs 1 to 4.
5. The said petition was dismissed by the Trial Court by an order on 23.01.2020. Challenging the order of the Trial Court refusing to recall PWs 1 to 4 the 1st respondent-wife filed a criminal petition in Criminal Petition No.896 of 2020 under Section 482 CrPC. While entertaining the said petition, the High Court for the State of Telangana at Hyderabad granted interim stay of further proceedings in the criminal case.
6. The High Court posted the criminal petition for final hearing on 06.03.2020, it could not be taken up for hearing. As a result, the stay of further proceedings got extended. Therefore, aggrieved by the stay of trial granted by the High Court in Criminal Petition No.896 of 2020 at the instance of the 1st respondent-wife, the husband and his parents have come up with the present SLP.
7. After hearing learned counsel for the parties, the following order is passed by consent:
i. The Trial in case No. CC. 622/2018 before the Court of AJCJ-cum-XXV Metropolitan Magistrate, Cyberabad, Kukatpally, which was transferred and now pending before the Court of VIII Metropolitan Magistrate, Cyberabad, Kukatpally shall be concluded 2 expeditiously and in any case not later than two months from the date the appearance of the parties before the in Charge Court, since the Court of VIII Metropolitan Magistrate, Cyberabad, Kukatapply is reported to be vacant.
ii. The parties are directed to appear before the in-charge Court, Cyberabad, kukatapply on 22.07.2019.
iii. This direction is given in view of the peculiar circumstances and status of the parties.
iv. All other criminal cases between the parties in any other courts shall stand disposed of without any orders.
v. The parties are restrained from filing any case civil or criminal against each other or their respective Advocates during the pendency of the trial.
vi. The passport application of respondent No. 2/husband may be considered by the passport authorities.
8. The special leave petition is disposed of accordingly and the pending application stands disposed of.
9. As against the well-considered order of the Trial Court, the 1strespondent-wife moved a petition before the High Court under Section 482 Cr.P.C. This petition was entertained by the High Court and stay of further proceedings was granted. The High Court should not have granted such a stay on 07.02.2020, in the teeth of the order passed by this Court on 16.07.2019 for the disposal of the proceedings within two months.
10. After the recording of evidence of all prosecution witnesses was over, the trial court closed the evidence on the side of the prosecution on 08.01.2020 and posted the case for questioning under Section 313, Cr.P.C on 17.01.2020. On 30.01.2020, the questioning under Section 313 was also over.
11. It is surprising that the prosecution filed an application in Crl.M.P.No.56 of 2020 for recalling PW-1 to PW-4, on the basis of the supplementary charge-sheet. PW-1 to PW-4 are not strangers or 3rd parties. All of them are aggrieved persons and hence they should have spoken about all the facts even in the first instance. After having prevented the 1st petitioner-husband from travelling to USA, by inviting an order on consent before this Court, neither the parties nor the prosecution should give any room for suspicion that they are protracting the proceedings.
12. Court’s attention was drawn to the certified copies of the deposition of PW-1, PW-2 and PW-4, where the Trial Court has recorded the demeanour of these witnesses. Suffice it to point out that any attempt to overreach an order of this Court passed by consent should be discouraged and deprecated. Therefore, the order of stay granted by the High Court is liable to be vacated and the trial directed to be proceeded. The Contempt Petition, in our considered view can be closed without going into the rival claims.
CONCLUSION :
The Special Leave Petition and the Contempt Petition are disposed of to the following effect:
(i) The Contempt Petition is closed without going into the rival contentions;
(ii) The Special Leave Petition is allowed and the order of stay of further proceedings, granted by the High Court in Criminal Petition No.896 of 2020 is set aside;
(iii) The Trial Court is directed to proceed further with the trial of the criminal case, from the stage where it got struck due to the stay order of the High Court. The Trial Court may endeavour to dispose of the matter within a period of two months.
