Karnataka High Court

Smt Kursheed Unnisa vs The State Of Karnataka on 2 December, 2021

Bench: M.Nagaprasanna

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 02ND DAY OF DECEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.8276/2018

BETWEEN

1.   SMT.KURSHEED UNNISA
     W/O MUNAWAR PASHA
     AGED ABOUT 70 YEARS,
     RESIDING AT HILALA MANZIL
     4TH CROSS, BAPUJINAGAR
     SHIVAMOGGA - 577 102.

2.   SRI IMRAN PASHA
     S/O MUNWAR PASHA
     AGED ABOUT 37 YEARS,
     RESIDING AT BEHIND UNITY HALL
     5TH CROSS, R.M.L.NAGAR
     SHIVAMOGGA - 577 102.

3.   SRI MANSUR PASHA
     S/O MUNAWAR PASHA
     AGED ABOUT 43 YEARS,
     RESIDING AT HILALA MANZIL
     4TH CROSS, BAPUJINAGAR
     SHIVAMOGGA - 577 102.

4.   SRI SUHAIL PASHA
     S/O MUNAWAR PASHA
     AGED ABOUT 41 YEARS,
     RESIDING AT HILALA MANZIL
     4TH CROSS, BAPUJINAGAR
     SHIVAMOGGA - 577 102.
                             2



5.    SRI SAMIR PASHA
      S/O MUNAWAR PASHA
      AGED ABOUT 39 YEARS,
      RESIDING AT HILALA MANZIL
      4TH CROSS, BAPUJINAGAR
      SHIVAMOGGA - 577 102.
                                            ... PETITIONERS

[BY SRI J.D.KASHINATH, ADVOCATE (PHYSICAL HEARING)]

AND


1.    THE STATE OF KARNATAKA
      PUTTENAHALLI POLICE STATION
      BENGALURU
      REPRESENTED BY SPP
      HIGH COURT OF KARNATAKA
      BENGALURU - 560 001.

2.    SMT. ASMA PARVEEN
      W/O NAYAZ PASHA
      D/O FAYAZ AHMED
      AGED ABOUT 34 YEARS,
      RESIDING AT NO.9, 2ND CROSS,
      SILVER OAK LAYOUT,
      J.P. NAGAR, 7TH PHASE
      BENGALURU - 560 078.
                                           ... RESPONDENTS

[BY SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING);
    SRI MOHAMMED WAZEER, ADVOCATE FOR R2 (PHYSICAL
    HEARING))


     THIS CRL.P FILED U/S.482 CR.P.C PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO QUASH THE CHARGE
SHEET AND PROCEEDIGNS IN C.C.NO.10693/2018 FOR THE
OFFENCE P/U/S 498(A), 323, 509, 506 AND 109 R/W 34 OF IPC
AND SECTION 3 AND 4 OF D.P. ACT INITIATED BY THE
                              3



RESPONDENT POLICE ON THE COMPLAINT OF THE RESPONDENT
NO.2 REGISTERED IN CR.NO.446/2017 PENDING ON THE FILE OF
XLIV ADDL.C.M.M., BENGLAURU AS ABUSE OF PROCESS OF LAW.


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

                            ORDER

The petitioners are before this Court calling in question the

proceedings in C.C.No.10693/2018 pending before the XLIV

Additional Chief Metropolitan Magistrate at Bangalore.

2. Petitioner No.1 - accused No.2 is the mother-in-law

and petitioner Nos.2 to 5 - accused Nos.2 to 6 are the brothers-

in-law of respondent No.2 - complainant. The allegation against

the petitioners are for offences punishable under Sections

498A,323, 509, 506, 109 read with Section 34 of IPC and also

Sections 3 and 4 of the Dowry Prohibition Act, 1961. Accused

No.1 is the husband of the complainant who is not before the

Court.

3. Heard Sri. J.D. Kashinath, learned counsel appearing

for the petitioners, Sri. R.D. Renukaradhya, learned HCGP

appearing for respondent No.1 and have perused the material on

record.

4. Learned counsel appearing for respondent No.2 - the

complainant would vehemently refute the contentions advanced

by the learned counsel appearing for the petitioners and would

submit that the petitioners did have some role to play in the

harassment meeted out by the husband towards the

complainant though not an active role and would further submit

that the charge sheet is already filed by the police and it is a

matter of trial, the petitioners can come out clean in the trial, if

they are not guilty of any offences committed as alleged.

5. Learned HCGP would also toe the lines of the learned

counsel appearing for respondent No.2.

6. Accused No.1 and the complainant got married on

24.10.2009. It is the case of the complainant that since the date

of marriage, accused No.1 - husband ill-treated the complainant

and relationship between them turned down.

7. It is not in dispute that accused No.1 - the husband

and the complainant were residing at Bengaluru, wherein,

accused No.1 had his business. It is also not in dispute that

the petitioners, who are mother-in-law and brothers-in-law are

residents of Shivamogga. On the relationship getting sore

between the couple and the alleged harassment meeted out by

the husband, the complainant registers a complaint against her

husband and all other members of the family. The complaint is

registered on 20.12.2017 before the jurisdictional police. The

narration in the complaint in entirety against the husband. The

names of the present petitioners are mentioned only to contend

the mother-in-law and brothers-in-law used to visit the house of

the complainant in Bangalore sometimes and would abet the

husband - accused No.1 to harass the complainant for bringing

money or property, except this statement being made against the

petitioners herein, there are no allegations or any overt act

committed by the petitioners in the entire complaint.

8. The offences alleged against the petitioners are once

punishable under Sections 498A and 506 of the IPC. For Section

498A of the IPC, the petitioners cannot be roped in into the

proceedings as they were not residing with the couple and were

staying at Shivamogga, where the couple were residing at

Bangalore. There is no allegation of cruelty meeted out by the

petitioners either physical or mental in the entire complaint as

observed hereinabove. The narration in the entire complaint is

only against the husband - accused No.1.

9. The police after investigation have filed a charge

sheet against the petitioners as well. A perusal at the charge

sheet also would indicate that it is verbatim similar to what the

complaint narrates. There is again no overt act indicated against

the petitioners even in the charge sheet. Since the petitioners

were not residing with the couple, coupled with the fact that

there are no allegation against the petitioners in the complaint.

The trial, if permitted to continue against the mother-in-law and

the brothers-in-law of the complainant, it would generate into

weapon of harassment. The view of mine, in this regard, is

fortified by the judgment of the Apex Court in the cases of Apex

Court in the cases of PREETI GUPTA AND ANOTHER v. STATE

OF JHARKHAND AND ANOTHER - (2010) 7 SCC 667; GEETA

MEHROTRA AND ANOTHER v. STATE OF U.P. & ANOTHER -

(2012) 10 SCC 741; and RASHMI CHOPRA AND OTHERS v.

STATE OF UTTAR PRADESH AND OTHERS - (2019) 15 SCC

357. The Apex Court in the case of PREETI GUPTA 1(supra) has

held as follows:

"28. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

29. Admittedly, Appellant 1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, Appellant 2 is a permanent resident of Goregaon, Maharashtra. They have never visited the place where the alleged incident had taken place. They had never lived with Respondent 2 and her husband. Their implication

(2010) 7 SCC 667

in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

31. The courts are receiving a large number of cases emanating from Section 498-A of the Penal Code which reads as under:

"498-A. 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 purposes 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."

32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

      ...         ...         ...          ...




               36. Experience   reveals    that   long   and

protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful.

(Emphasis supplied)

Later, the Apex Court in the case of GEETA MEHROTRA2 (supra)

has held as follows:

"25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant wife.

It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the

(2012) 10 SCC 741

commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

26. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498-A/323/504/506 IPC including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.

27. The High Court in our considered opinion appears to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make

out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR do not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498-A/323/504/506 IPC and Sections 3/4 of the Dowry Prohibition Act.

28. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of Respondent 2 complainant without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings insofar as these appellants are

concerned and consequently the order passed by the High Court shall stand overruled. The appeal is accordingly allowed."

(Emphasis supplied)

In the case of RASHMI CHOPRA3 (supra) the Apex Court has

held as follows:

"18. The learned counsel for the appellant has also relied on various judgments of this Court in support of his submissions. In K. Subba Rao v. State of Telangana [K. Subba Rao v. State of Telangana, (2018) 14 SCC 452 : (2019) 1 SCC (Cri) 605] , this Court laid down the following in paras 5 and 6 : (SCC p. 454)

"5. A perusal of the charge-sheet and the supplementary charge-sheet discloses the fact that the appellants are not the immediate family members of the third respondent/husband. They are the maternal uncles of the third respondent. Except the bald statement that they supported the third respondent who was harassing the second respondent for dowry and that they conspired with the third respondent for taking away his child to USA, nothing else indicating their involvement in the crime was mentioned. The appellants approached the High Court when the investigation was pending. The charge-sheet and the supplementary charge-sheet were filed after disposal [T.S.K. Ashwin Kumar v. State of Telangana, 2016 SCC OnLine Hyd 432] of the case by the High Court.

(2019) 15 SCC 357

6. Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of the process of a court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . The courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. (See Kans Raj v. State of Punjab [Kans Raj v. State of Punjab, (2000) 5 SCC 207 : 2000 SCC (Cri) 935] and Kailash Chandra Agrawal v. State of U.P. [Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551 : (2015) 3 SCC (Cri) 536] )"

... ... ... ...

24. Coming back to the allegations in the complaint pertaining to Section 498-A and Sections 3/4 of the Dowry Prohibition Act. A perusal of the complaint indicates that the allegations against the appellants for the offences under Section 498-A and Sections 3/4 of the Dowry Prohibition Act are general and sweeping. No specific incident dates or details of any incident have been mentioned in the complaint. The complaint having been filed after the proceeding for divorce was initiated by Nayan Chopra in the State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of CJM, Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the

complaint under Section 498-A and Sections 3/4 of the Dowry Prohibition Act have been filed as counter-blast to divorce petition proceeding in the State of Michigan by Nayan Chopra.

25. There being no specific allegation regarding any one of the applicants except common general allegation against everyone i.e. "they started harassing the daughter of the applicant demanding additional dowry of rupees one crore" and the fact that all relatives of the husband, namely, father, mother, brother, mother's sister and husband of mother's sister have been roped in clearly indicates that the application under Section 156(3) CrPC was filed with a view to harass the applicants. Further, prior to filing of the application under Section 156(3) CrPC there was no complaint at any point of time by the girl or her father making allegation of demand of any dowry by any one of the applicants. When both Nayan Chopra and Vanshika started living separately since November 2013, had there been any dowry demand or harassment the girl would have given complaint to police or any other authority. Further, in the divorce proceedings at Michigan, USA, parties have agreed for dividing their properties including gifts given at marriage but no complaint was made in those proceedings regarding harassment by her husband or his family members. ..........................."

(Emphasis supplied)

The Apex Court in the aforesaid cases, which were all cases

concerning arraigning of all family members of the husband

without there being any cause shown or allegations made in the

complaint or the FIR, the Apex Court has interfered and

quashed the proceedings and has also directed that in such

cases Courts should interfere and not permit the trial to

degenerate into harassment to other members of the family.

10. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. The proceedings in C.C.No.10693/2018 which arose