Mohammed Ayyaz S/O Aneesahemed ... vs The State Of Karnataka
2021 Latest Caselaw 5160 Kant

       IN THE HIGH COURT OF KARNATAKA
               DHARWAD BENCH

 DATED THIS THE 01ST DAY OF DECEMBER, 2021

                       BEFORE

      THE HON'BLE MRS.JUSTICE M.G.UMA


              CRL.P.NO.101325/2019

BETWEEN

1.   MOHAMMED AYYAZ
     S/O ANEESAHEMED MULLA
     AGE: 36 YEARS,
     OCC: SELF EMPLOYED.

2.   ANEESAHEMED RAZAQ MULLA
     AGE: 61 YEARS,
     OCC: AGRICULTURE.

3.   SMT.SAYEEDA
     W/O ANEESAHEMED MULLA
     AGE: 56 YEARS,
     OCC: HOUSEHOLD WORK.

4.   MOHAMMED ALI MULLA,
     ANEESAHMED MULLA,
     AGE: 31 YEARS, OCC: SELF EMPLOYED,
     ALL ARE RESIDENTS OF
     PATTANKUDI VILLAGE,
     TQ: CHIKKODI,
     DIST: BELAGAVI.

     ALL. PATTANAKUDI HALI -
     R/O APARAJ BHANH MAKBULSAI
     NO.177/3, SECTOR NO.3, NO.13.2,
                               2




      MAIN CROSS, HANUMAN NAGAR,
      T.V.SENTER, BELAGAVI.
                                                 ...PETITIONERS
(BY SRI NARAYAN V.YAJI, ADV.)

AND

1.    THE STATE OF KARNATAKA
      BY POLICE SUB-INSPECTOR,
      NIPPANI TOWN POLICE STATION,
      REPRESENTED BY ADDITIONAL STATE PUBLIC
      PROSECUTOR, HIGH COURT BUILDNG,
      DHARWAD.

2.    RIYAZ NOORMOHAMMED SHAIK
      AGE : 58 YEARS, AGRICULTURE,
      R/O SHETU NAGAR, NIPPANI,
      DIST: BELAGAVI.

                                                ... RESPONDENTS

(BY   SRI PRAVEEN K.UPPAR, HCGP FOR R1)
      SRI VIJAY MALALI, ADV. FOR R.2)

      THIS CRIMINAL PETITION IS FILED U/SEC 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY THE
RESPONDENT POLICE U/SEC.498(A), 504 R/W SEC.34 OF IPC
AS AGAINST THE PETITIONERS IN CC NO.62/2014 ON THE FILE
OF    THE   ADDL.   CIVIL   JUDGE   &   JMFC,    NIPPANI   AND
CONSEQUENTLY ALSO QUASH THE ENTIRE PROCEEDING IN C.C.
NO.62/2014 PENDING ON THE FILE OF THE ADDL. CIVIL JUDGE
& JMFC, NIPPANI AS IT IS ILLEGAL AND NOT MAINTAINABLE.


      THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                    3




                         : JUDGMENT :

Though this appeal is listed for admission, with

the consent of learned counsel for both the parties the

same is taken up for final disposal.

2. The petitioners are accused Nos.1 to 4 in

C.C.No.62/2014 pending on the file of Civil Judge and

JMFC Court at Nippani ("the Trial Court" for short) for

the offence punishable under Sections 498A and 504

read with Section 34 of the Indian Penal Code ("IPC"

for short).

3. Brief facts of the case are that, the

informant Smt.Rijvaana Mahammed Ayyaji Mulla, wife

of accused No.1 filed the first information against

accused Nos.1 to 4 stating that accused No.1 is her

husband and accused Nos.2 to 4 are his family

members. She married accused Nos.1 on 21.10.2007,

thereafter she was residing with accused No.1

wherever he was working. Initially he looked after her

very well. Subsequently he delivered female babies.

Thereafter accused Nos.1 to 4 started treating the

informant with cruelty by stating that she does not

know cooking, she is delivering only female child, she

is not having good health and that they have to spend

money for her treatment etc. When this fact was

brought to the notice of her parents, they advised her

to have patience. But still accused Nos.1 to 4 started

continued to treat her with to ill-treatment. When a

panchayath was convened on 23.07.2013, accused

No.1 gave an undertaking in writing on a bond paper,

agreeing to look-after the informant and her two

daughters very well. But still the accused have

continued their behavior and ousted her from the

matrimonial house on 24.07.2013. Thereafter she was

taken to hospital where it was diagnosed with kidney

failure and underwent dialysis. Even then accused

were not bothered to look after her or to provide

medical and financial assistance. Thereafter she

requested the police to register the case and to initiate

legal action against them. Accordingly, Nippani police

registered Crime No.119/2013 and took up

investigation. After investigation the charge sheet was

came to be filed for the above said offences. Learned

Magistrate took cognizance of the offence and

C.C.No.62/2014 was came to be registered. In the

meantime, the petitioners approached this Court

seeking to quash the criminal proceedings initiated

against them.

4. Heard Sri Narayan V.Yaji learned counsel

for the petitioners, Sri Praveen K.Uppar, learned High

Court Government Pleader for respondent-State and

Sri Vijay Malalai, learned counsel for the respondent

No.2-complainant.

5. Learned counsel for the petitioners

submitted that there is absolutely no allegation

regarding demand for dowry. There is no cruelty

meted to the informant. One more complaint making

similar allegations under the provisions of the

Protection of Women from Domestic Violence Act,

2005 ("DV Act for short) was filed, but the criminal

proceedings therein was quashed by this Court. The

brother of the informant and accused No.1 have

quarreled and therefore due to ill-will and motive, a

false complaint was came to be filed. The informant is

already dead. Under such circumstances, the first

information filed against the petitioner does not

survive for consideration. There is inordinate delay in

lodging the first information, only saying that the

informant does not know cooking or that she

delivering only female children will not amount to

cruelty under Section 498A of IPC. Deliberately, a

false complaint is filed and the continuation of criminal

proceedings against the petitioners would amount to

abuse of process of the Court, therefore he prays for

allowing the petition by quashing the criminal

proceedings against the petitioners.

6. Per contra, learned High Court Government

Pleader for respondent No.1-State and learned counsel

for respondent No.2 opposing the petition submitted

that, there are specific allegations made against the

petitioners for having committed the offence. After

investigation, charge sheet is already filed.

C.C.No.62/2014 is pending before the Trial Court. This

petition came to be filed on 10.07.2019. But at that

time the charge against the accused was already

framed. PWs.1 to 4 were already examined. But the

petitioners were successful in getting an interim order

of stay of further proceedings. When the matter is

pending before the Trial Court when there are prima

facie materials to constitute the offence as alleged,

the criminal proceedings cannot be quashed. Since the

evidence before the Trial Court has already begun, the

petitioners have to appear before the Trial Court and

seek for acquittal. Hence, they pray for dismissal of

the petition as devoid of merits.

7. Perused the materials including Trial Court

records.

8. In the light of the rival contentions of the

parties, the point that would arise for consideration of

this Court is as follows:

Whether the criminal proceedings initiated against the petitioner in Crime No.119/2013 of Nippani Police Station pending in C.C.No.62/2014 on the file of the Trial Court for the offence punishable under Section 498A and 504 read with Section 34 of IPC is liable to be quashed under Section 482 of Cr.P.C.?

9. My answer to the above point is in the

'negative' for the following :

: REASONS :

10. The first information was lodged by the

informant who is the wife of he accused. Relationship

between the parties is not in dispute. The informant in

the first information specifically stated that she

married accused No.1 on 21.10.2007 and for some

time, they led happy married life. When she delivered

female child, the petitioners started ill-treating her by

stating that she delivering only female child. They

were also treating her with cruelty by complaining that

she does not know cooking, she is not having good

health and that they are not in a position to get

treatment to her. The informant specifically stated

about the ill-treatment meted to her. The contention

of the learned counsel for the petitioners is that, since

there is no allegation regarding demand for dowry,

Section 498A of IPC cannot be attracted is not a valid

defence, as demand for dowry is not a prerequisite to

constitute an offence under Section 498A of IPC. The

word "cruelty" is defined in the explanation appended

to Section 498A of IPC. For exercising the inherent

jurisdiction of this Court, it is to be considered

whether there are prima facie allegations to attract

the penal provisions or not. If the averment in the first

information remains uncontroverted and if it is

sufficient to bring home the guilt of the accused, then

it cannot be said that there are no prima facie

materials against the petitioners. But contention of the

learned counsel for the petitioner that simply saying

that the informant delivering only female children and

that she was not knowing cooking or that she is not

having good health and that they cannot provide the

medical assistance will not amount to cruelty, cannot

be accepted at this stage. It can be considered only

after full-fledged trial. The other contention of the

learned counsel for the petitioner that the brother of

the informant had quarreled with accused No.1 and

therefore a false complaint was came to be lodged

also cannot be accepted at this stage without there

being any material to substantiate the same. Death of

the informant during the pendency of the criminal

proceedings before the Trial Court cannot be a ground

to quash the criminal proceedings as already four

prosecution witnesses are examined before the Trial

Court. The learned counsel for the petitioners

submitted that there is delay in lodging the complaint.

But the informant refers to panchayath dated

23.07.2013 and ousting her from matrimonial house

on 24.07.2013. Thereafter she refers to her ill-health

i.e., kidney failure and undergoing dialysis on regular

basis. The first information was came to be filed on

14.11.2013. Looking to the facts and circumstances of

the case, it cannot be said at this stage, that there is

inordinate delay in lodging the first information.

     11.   In    view    of        all   these    facts   and

circumstances, I    am not         inclined to accept the

contention of the learned counsel for the petitioners

that there are absolutely no materials available on

record to invoke either Sections 498A or Section 504

of IPC.

12. It is brought to the notice of the Court that

the petition was filed on 10.07.2019 the interim order

staying the further proceedings before the Trial Court

was came to be passed on 16.09.2019. Learned High

Court Government Pleader produced depositions of

PWs.1 to 4 recorded before the Trial Court in

CC.No.62/2014, which disclose that, PW.1 was

examined on 29.09.2018 and PW.2 was examined on

22.11.2018, PWs.3 and 4 were examined on

07.03.2019. Therefore, it is clear that these witnesses

were examined much earlier to filing of this petition.

This material fact was suppressed by the petitioners

while approaching the Court and even seeking grant of

interim order of stay of all the further proceedings

before the Trial Court. Learned counsel for the

petitioner has no explanation for this suppression of

material facts before the Court.

13. In view of the above discussion, I do not

find any ground to quash the criminal proceedings

initiated against the petitioners. Hence, I answer the

above point in the 'negative' and accordingly the

above petition is dismissed.

Sd/-

JUDGE EM