IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2018 BEFORE THE HON'BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.313/2012 BETWEEN: 1. Mr. [ENTITY], Aged about [SECTION] years, S/o Late Sri. [ENTITY]. 2. Smt. [ENTITY], Aged about 65 years, W/o Late Sri. [ENTITY]. Petitioner No.1 & 2, R/o No.26, 1st B-Cross Road, Kakiyappa Lane, Nanjareddy Colony, HAL Airport Road, Bengaluru - 560 017. 3. Sri. [ENTITY], Aged about 45 years, S/o. Late Sri. [ENTITY], R/o. 403, Fourth Floor, Divine Grace Apartment, No.20 & 23, IInd Main Road, Kodihalli, J.B. Nagar, Bengaluru. 4. Smt. [ENTITY], Aged about 50 years, W/o Sri. [ENTITY], R/o No.5(175), -2- Shreenidhi Nilaya, Kalappa Layout, HAL IInd Stage, Bengaluru - 560 017. Petitioners (By Sri. [ENTITY], Advocate) AND: 1. [ENTITY] by Avalahalli Police Station, Bangalore Rural, Represented by its Public Prosecutor. 2. Smt. [ENTITY], W/o. [ENTITY], D/o [ENTITY], Aged about 28 years, R/at Subhash Nagar, Thambuchetty Palya Main Road, Bengaluru - [ENTITY]. Respondents (By Sri. [ENTITY], HCGP for R1; Smt. [ENTITY], Advocate for R2) This Criminal Petition is filed under [SECTION] of [ACT], praying to quash the FIR in [CASE NUMBER] dated 05.12.2011 for alleged offences under [SECTION], [SECTION] and [SECTION] of [ACT] in Annexure-A of the first respondent/[ENTITY], Bengaluru Rural, Bengaluru. This Criminal Petition coming on for Final Hearing, this day, the Court made the following: -3- ORDER
The present petition has been filed by the petitioners/accused Nos.1 to 4 under [SECTION] of [ACT], praying to quash the FIR in [CASE NUMBER] dated 05.12.2011 for the offences punishable under [SECTION] and [SECTION] of [ACT].
2. Brief facts of the case as alleged in the petition are that the first respondent registered a case against the petitioners on the allegations made by the second respondent on 05.12.2011. The complaint was filed by the wife of accused No.1. A translated copy of the complaint has also been filed as per Annexure-B. In the said compliant, it has been contended that during the wedding, the petitioners made an issue regarding the dowry and complainant house people have given neck chain, Bracelet, ring totaling five sovereigns of Gold and Rs.50,000/- to accused No.1. After marriage, up to 27.12.2005, complainant stayed in her husband's house suffering all the tortures given by the accused persons. At that time, her sister-in-law - [ENTITY] was staying in the same house and she had an intention of getting her daughter married to accused No.1 and complainant's mother-in-law, brother-in-law and sister- in-law were giving physical torture to the complainant to go to her parents' house to bring money from them. All together by force thrown her out of the house and closed the door. With difficulty, she went to her parents' house. Further she deposed that after few- days, her mother-in-law and father-in-law came to her parents' house and threatened and told that if she has to be in their house, they should pay Rs.2,00,000/- (Rupees Two lakhs), if not, she will be sent back to her parents' house. By giving one week time, they went away. Then on 16.02.2004, in the guise of opening a hotel and give the same to son-in-law and daughter they took Rs.2,00,000/- from complainant's father. She further stated that she was pregnant and was not taken care. On 27.12.2005 evening; she has been thrown out of the house with hospital documents. As her people had come to see her, at that time, with an intention of seeing her health, they brought her to parents' house. When she was at her father's house, her husband used to call over phone and threaten her to get Rs.5,00,000/- (Rupees five lakhs) from her father for opening a new Hotel and to purchase a site. At the same time, her sister-in-law - [ENTITY] also call over phone to her and threaten her that if she is not brining the asked things she will get the accused No.1 married to her daughter and if she is not going to give money, she has to sign a paper that she didn't want her husband. On 04.04.2006, she delivered a girl baby in Philomena's Hospital and afterwards, on 08.01.2007, her parents' took her to her husband's house and there she was up to 10.07.2007, during that period the accused persons have not provided food to her and her child and they were insisting to bring the money to go to a new house. After this on many occasions, her parents' took her to her husband's house, at that time, her mother-in-law, father-in-law, her husband and the elder brother shouted at them by using highly un-parliamentary language. She further stated that her father and mother met them again on 11.12.2010 and requested them to take her back. Her husband, brother-in-law threatened and asked them to sign an agreement paper and also they said they return the 20 sovereign of gold given by her during her wedding. It is further stated that on 22.06.2011, her parents' took her and her daughter-[ENTITY] requested the accused to keep the complainant and her daughter with them, for that they asked to bring extra money, then only they can handle. Accused persons threatened that if she didn't bring money, they don't want her and her daughter in the house. On the basis of the said complaint, a case was registered in [CASE NUMBER] for the above said offences. Challenging the same, the accused petitioners are before this Court.
3. I have heard Sri. [ENTITY], learned counsel for the petitioners and the learned High Court Government Pleader for respondent No.1-[ENTITY] and also Smt. [ENTITY], learned counsel for respondent No.2.
4. During the course of arguments, the learned counsel for petitioners apart from the grounds mentioned in the petition submitted that the decree of divorce was obtained on 18.11.2010 and in the said divorce petition, it has been specifically alleged that she has deserted the husband on 26.12.2005 and thereafter she had not returned to the house. Further submitted that the complainant - respondent No.2 was harassing and causing inconvenience to the accused petitioner No.1. She has also filed the case under [ACT] and also for claiming maintenance under [SECTION] of [ACT], she is misusing and abusing the process of law. He further submitted that the said complaint has been filed after eight years of the marriage and before that no single complaint has been filed and there is no cause of action to file the compliant. He further submitted that there are no ingredients to attract the said offences and there is no cruelty and even though, there is no material to show that the ingredients of the said offence has been made out, respondent No.1 - Police Officer have mechanically registered the case. He further submitted that when the complainant is not residing at the place of incident, there is no question of any ill-treatment and harassment by the accused petitioners to the complainant. He further submitted that her sister-in- law and others already got married and they are staying in their in-law's house. Further submitted that the Court has to draw an adverse inference with the act of the respondent-complainant which is nothing but an abuse of process of law and as such, this Court can exercise power under [SECTION] of [ACT] to quash the proceedings.
5. Per contra, learned counsel appearing on behalf of respondent No.2 vehemently argued by contending that since from the marriage, cruelty has been continued and she made all the efforts but the said efforts have become in vain. She further submitted that though the accused petitioner No.1 has filed the divorce petition and same was decreed but she filed an appeal before this Court in [CASE NUMBER] and this Court while dismissing the appeal directed to approach the Court below to set aside the ex-parte order and accordingly, the said application has been filed and the said matter is for adjudication and it is at the stage of cross-examination of the respondent-complainant. She further submitted that the complaint clearly goes to
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show that she came and repeatedly requested the accused petitioner No.1 and his family members for her stay with them. In spite of that they have thrown her out of the house and have not considered her requests. There is material to show that the petitioners have ill- treated and harassed and have also abused with foul language. The complaint has all the ingredients of the alleged offences and on the basis of the said complaint, a case has been rightly registered and the petitioners have not made out any good grounds to interfere and quash the proceedings.
6. By supporting the arguments of the learned counsel for respondent No.2, the learned High Court Government Pleader submitted that there is prima-facie case made out by the complainant and the said complaint clearly goes to show that at the time of marriage, the accused had a demand of dowry in the kind of gold and cash and further demand of dowry was
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made and she has been forcibly thrown out of the house. He further submitted that after consideration of all the materials placed on record, respondent No.1 has rightly registered a criminal case. The petitioners have not made out any good grounds to quash the proceedings. On these grounds, he prays to dismiss the petition.
7. I have gone through the submissions made by the learned counsel appearing for both the parties and I have perused the records, which has been produced along with the petition.
8. Before going to discuss the facts in issue, I feel it is just and necessary to place it on record. Under what circumstances the inherent powers vested in this Court under [SECTION] of [ACT], can be exercised. This preposition of law has been laid down by the Hon'ble Apex Court in the case of STATE OF ORISSA AND ANOTHER V. SAROJ KUMAR SAHOO reported in
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(2005) 13 SCC 540 at paragraph Nos.9 and 10, which read as under:
"9. In R.P. Kapur V. [ENTITY] of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. ([CASE NUMBER])
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under [SECTION] [ACT], the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or
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whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under [SECTION] [ACT] and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in [ENTITY] of Haryana v. Bhajan Lal. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp.378-79, para 102) "102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of the Code except under an order of a Magistrate within the purview of [SECTION] of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under [SECTION] of the Code.
(5) Where the allegations made in the FIR or compliant are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion but there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the
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institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide 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.
9. The above said proposition of law has also been applied in subsequent decision of the Hon'ble Supreme Court in the case of [PRECEDENT] wherein at paragraph No. 23 and 24 it has been held as under:
"23. We have referred to the authority in [ENTITY] as that specifically deals with the case that came from the [ENTITY] of Uttar Pradesh where [SECTION] [ACT] has been deleted. It has concurred with the view expressed in [ENTITY]. The said decision, needless to say, has to be read in the context of the [ENTITY] of Uttar Pradesh. We do not intend to elaborate the said principle as that is not necessary in this
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case. What needs to be stated here is that the [ENTITY]s where [SECTION] [ACT] has not been deleted and kept on the statute book, the High Court should be well advised that while entertaining petitions under [SECTION] of the [ACT] or [SECTION] [ACT], it exercises judicial restraint. We may hasten to clarify that the Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. This kind of order is really inappropriate and unseemly. It has no sanction in law. The courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the Court to keep such unprincipled and unethical litigants at bay.
24. It has come to the notice of the Court that in certain cases, the High Courts, while dismissing the application under [SECTION] [ACT], are passing orders that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the
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Magistrate concerned. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that on surrendering before the trail Judge concerned, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in [ENTITY], [ENTITY], etc., for they neither come within the sweep of [SECTION] of the [ACT] nor [SECTION] [ACT] nor [SECTION] [ACT]. This Court in [ENTITY] had observed that the sagacious saying "a stitch in time saves nine" may be an apposite reminder and this Court also painfully so stated."
In the said decision, it has been observed that when the Court has to exercise the inherent power under [SECTION] of [ACT], it can be exercised to prevent an abuse of process of law.
10. Keeping in view the above proposition of law now let me consider the facts of this particular case. In this case, it is not in dispute that the respondent- complainant is the wife of the petitioner accused No.1 and it is also not in dispute that the petitioner accused No.2 is the mother-in-law. If the complaint is perused,
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which has been filed in Kannada and the translated copy has also been made available before this Court, it clearly indicates the fact that since from the marriage, there are some allegations made against the petitioners that there was a demand of dowry prior to the marriage and even subsequent to the marriage. Even the complaint discloses the fact that subsequently the cruelty has been continued and even as on 11.12.2010, a request was made to her husband to keep the complainant and her daughter with them. Her husband and her brother-in-law threatened and asked them to sign an agreement paper and also they said they return the 20 sovereign of gold given to her during her wedding. It is further stated that on 22.06.2011, her parents' took her and her daughter-[ENTITY] to them and requested them to keep the complainant and her daughter with them for that, they asked to bring extra money. If not, they don't want her and her daughter, which clearly goes to show that the cause of action was
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started during 2006, i.e. on 04.04.2006, which was continued even after giving birth to a girl baby and thereafter also it has been continued and on 22.06.2011 the said aspect has been continued and thereafter the complaint came to be registered on 05.12.2011. In this behalf there is no delay as there is continuity of cruelty and harassment to the complainant. In that light, the contention of the respondents is acceptable.
11. It is the contention of the learned counsel for accused petitioners that there was no ill-treatment and harassment and the complaint was filed after eight years of marriage till then, no single complaint has been filed, but the contents of the instant complaint clearly shows that there was continuity of the cruelty and the harassment. Further the complaint clearly shows that the complainant along with her child were thrown out of the house and she has not been looked after by the accused thereafter. Even the records clearly shows that
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even no efforts have been made by the petitioner/accused No.1 to take her back. The records disclose the fact that the divorce petition was came to be filed by the petitioner/accused No.1 in [CASE NUMBER] and the family Court had decreed the said petition and subsequently the said order has been challenged before this Court in [CASE NUMBER] and this Court by order dated 19.02.2015 has dismissed the petition with an observation that the proper course is open for the petitioner's wife - complainant to approach the very Court to set aside the ex-parte decree.
12. It is submitted by the learned counsel that miscellaneous petition has been filed and still the said petition is pending. Under such circumstances, even the divorce petition which is said to have been decreed, has not attained the finality and hence it cannot be held that the said complaint has become infructuous and it is not maintainable in this behalf.
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13. By going through the facts and circumstances, I am of the considered opinion that there appears to be prima-facie case made out as against the accused petitioners and no good grounds have been made out to show that there is an abuse of process of law. The above said proposition of law is aptly applicable to the present case on hand. In that light also the contention of the learned counsel for the petitioners is not acceptable.
14. Keeping in view the above said facts and circumstances and ratio laid down in the above quoted decision, the petitioners have not made out any case to quash the proceedings. However, if at all, they are having any grievance during the course of investigation, they can assist the Investigation to discharge the allegations made as against them.
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With the above observations, the petition stands dismissed, as devoid of merits.
JUDGE VBS