Karnataka High Court

Atma Sudhir Shetty vs The State By on 9 December, 2021

Bench: M.Nagaprasanna

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 09TH DAY OF DECEMBER, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.14668 OF 2018 (GM- RES)

BETWEEN

1.   ATMA SUDHIR SHETTY
     S/O SUDHIR PRASAD SHETTY,
     AGED ABOUT 31 YEARS,
     R/AT NO.-2-12-1029
     ANUGRAHA BEHIND
     EVES BEAUTY PARLOUR
     OPP BEJAI CHURCH,
     MANGALURU - 575 004.

2.   YASHODHA SHETTY
     W/O SUDHIR PRASAD SHETTY
     AGED ABOUT 61 YEARS,

3.   SUDHIR PRASAD SHETTY
     S/O BABU SHETTY,
     AGED ABOUT 71 YEARS,

     PETITIONERS 2 AND 3 ARE
     R/AT NO - 2-12-1029/1
     ANUGRAHA BEHIND EVES
     BEAUTY PARLOUR
     OPP BEJAI CHURCH
     MANGALURU - 575 004.

4.   APARNA SHETTY
     W/O PUSHPANANDA SHETTY,
     AGED ABOUT 37 YEARS,
     R/AT FLAT NO.303, DEEPA TOWERS,
                               2



      NEHRU AVENUE ROAD,
      LALBAUG, MANGALURU - 575 003.

5.    ANUSHA SHETTY
      W/O SANDEEP SHETTY,
      AGED ABOUT 34 YEARS,
      R/AT F-5, FOOT PRINTS
      GOODEARTHMALHAR,
      KAMBIPURA
      KENGARI HOBLI,
      BENGALURU - 560 060.
                                            ... PETITIONERS

(BY SRI R.BHADRINATH, ADVOCATE (PHYSICAL HEARING))

AND

1.    THE STATE BY
      MICO LAYOUT SUB-DIVISION
      MICO LAYOUT POLICE STATION
      BENGALURU
      REPRESENTED BY
      PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      ANNEXED HIGH BUILDING
      BANGALORE - 01.

2.    AISHWARYA RAI
      W/O ATMASUDHIR SHETTY
      AGED ABOUT 27 YEARS,
      R/AT NO-NA-.363
      NETHRAVATHI BLOCK,
      VIJAY ENCLAVE, VIJAYABANK LAYOUT,
      MSRS NAGAR, BILEKAHALLI,
      BENGALURU - 560 054.
                                          ... RESPONDENTS

(BY SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING);
    SRI D.S.SUNDARESH, ADVOCATE FOR R2 (ABSENT))
                                3



     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA AND SECTION 482 OF THE
CRIMINAL PROCEDURE CODE, 1973 PRAYING TO QUASH THE
COMPLAINT DATED 2.4.2018 IN CRIME NO. 92/2018 ON THE FILE
OF THE 6TH ADDL. CHIEF METROPOLITAN MAGISTRATE COURT,
NRUPATUNGA ROAD, BENGALURU AT ANNEX-A; AND ETC.,

     THIS WRIT PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The petitioners are before this Court calling in question the

proceedings in Crime No.92 of 2018 arising out of a First

Information Report registered on 02-04-2018, pending before the

VI Additional Chief Metropolitan Magistrate, Bengaluru.

2. Heard Sri R. Bhadrinath, learned counsel for petitioners

and Sri R.D. Renukaradhya, learned High Court Government

Pleader for respondent No.1.

3. Learned counsel appearing for the 2nd respondent/

complainant has remained absent throughout. This Court on

19-08-2021, noticing the fact that the learned counsel for the

2nd respondent remained absent, as a last chance, awaiting his

appearance, posted the matter to 24-08-2021 and again to

31.08.2021. When the matter was directed to be listed on

18.11.2021, the learned counsel for the 2nd respondent

remained absent. Again, the matter was listed on 25-11-2021

and further listed on 30.11.2021, awaiting the presence of the

learned counsel for respondent No.2. On 30-11-2021 also, he

remained absent and therefore, the matter was again directed to

be listed on 07.12.2021, giving him a last chance and observed

that, if on that day, the learned counsel for respondent No.2

would not appear, the matter would be decided in his absence.

Again on 07-12-2021, the matter was adjourned to 09-12-2021,

for the same reason. Even today, the learned counsel for the 2nd

respondent remained absent and therefore, the learned counsel

for petitioners and learned Additional Government Advocate

appearing for the State are heard.

4. The 1st petitioner is the husband of the complainant/

respondent No.2, 2nd petitioner is the mother-in-law; 3rd

petitioner is the father-in-law and 4th and 5th petitioners are the

sisters-in-law of the complainant. The complainant and the 1st

petitioner/husband got married on 12-05-2017. After their

marriage, the relationship between the complainant and the 1st

petitioner turned sore and the contention is that, it had reached

into an irretrievable extent. It is the allegation that the

petitioners had meted out cruelty against the complainant on

account of demand of dowry. On this score, the complainant

registers a complaint before the jurisdictional Police on

02.04.2018. Since the entire action springs from the complaint,

the same is extracted hereunder for the purpose of ready

reference:

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14/01/2018gÀAzÀÄ vÀªÀgÀÄ ªÀÄ£ÉUÉ ºÉÆÃV ªÀzÀQëuÉAiÀÄ£ÀÄß vÀPÉÆAqÀÄ 22/01/2018UÉ ªÁ¥À¸ï §gÀ¨ÉÃPÀÄ JAzÀÄ PÀ¼ÀÄ»¹zÀgÀÄ. £À£Àß UÀAqÀ PÀ¼ÉzÀ 6 wAUÀ½AzÀ £ÁªÀÅ E§âgÉÃ EgÀÄªÁUÁ AiÀiÁªÁUÀ®Ä £À£Àß PÀÄwÛUÉAiÀÄ£ÀÄß §®ªÁV MwÛ »rzÀÄ »A¸É PÉÆqÀÄwzÀÝ, £ÀAvÀgÀ £Á£ÀÄ £À£Àß UÀAqÀ£À ºÀwÛgÀ ¥sÉÆÃ¤£À ªÀÄÄSÁAvÀgÀ ªÀiÁvÁrzÁUÀ¯É®è £À£Àß UÀAqÀ, £À£Àß ªÀiÁªÀ, CvÉÛ ºÁUÀÄ £Á¢¤AiÀÄgÀÄ ¸ÉÃjPÉÆAqÀÄ ªÀgÀzÀQëuÉ vÀPÉÆAqÀÄ §AzÉgÉ ªÀiÁvÀæ ªÀÄ£ÉUÉ ¸ÉÃj¸ÀÄzÀÄ E®èªÁzÀgÉ ¤£Àß£ÀÄß ªÀÄ£ÉUÉ ¸ÉÃj¸ÀÄªÀÅ¢®è JAzÀÄ ºÉÃ½ £À£ÀUÉ ªÀiÁ£À¹PÀªÁV £ÉÆÃ¬Ä¹zÀgÀÄ. £À£ÀUÉ FUÀ AiÀiÁªÀÅzÉÃ PÉ®¸À«®è. £Á£ÀÄ FUÀ £À£Àß vÀAzÉ, vÁ¬ÄAiÀÄªÀgÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸À«zÉÝÃ£É. DzÀÄzÀjAzÀ £À£Àß UÀAqÀ, ªÀiÁªÀ, CvÉÛ ºÁUÀÄ £Á¢¤AiÀÄgÀ «gÀÄzÀÞ PÁ£ÀÆ£ÀÄ PÀæªÀÄ dgÀÄV¹ £À£ÀUÉ £ÁåAiÀÄ zÉÆgÀQ¹ PÉÆqÀ¨ÉÃPÀÄ JAzÀÄ PÉÃ½PÉÆ¼ÀÄîvÉÛÃ£É."

A FIR is registered against the petitioners for offences

punishable under Section 498A of the IPC and Sections 3 and 4

of the Dowry Prohibition Act, 1961. It is at that juncture, the

petitioners have knocked the doors of this Court in the subject

petition.

5. The learned counsel for the petitioners submits that the

in-laws of the complainant, both mother-in-law and sisters-in-

law never resided with the complainant and no allegation is

made in the complaint against the petitioners, particularly,

against all the in-laws. The entire allegation is only against the

1st petitioner/husband and would further contend that even

against the husband, there is no overt-act alleged for the trail to

continue against the petitioners.

6. A perusal of the afore-quoted complaint, would clearly

indicate certain overt acts of the 1st petitioner/husband and

certain omnibus statements with regard to in-laws. There is no

particularization of any act that is indicated in the complaint

except quoting that father-in-law, mother-in-law and sisters-in-

law together demanded dowry and if the complainant would not

bring dowry, they would not let her inside the house. Except

this omnibus statement, there is no other allegation in the

complaint made against other members of the family. Insofar as

the allegation against the husband, there are several allegations

in the complaint. Instances of torture are also indicated in the

complaint against the husband. Therefore, trial against the

husband cannot be interfered with or interjected. But, the trial

against other members of the family against whom only omnibus

statements are made, is required to be obliterated as

continuance of trial against in-laws would result in miscarriage

of justice.

7. This view of my in this regard is fortified by the

judgments of the Apex Court in the case 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 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

(2010) 7 SCC 667

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 MEHROTRA 2(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 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

(2012) 10 SCC 741

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.

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

(2019) 15 SCC 357

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, 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.

8. In the light of the complaint, the FIR and the law laid

down by the Apex Court in the aforesaid cases, all concerning

offences under Section 498A of IPC inter alia, the proceedings

against the petitioners, except the husband-accused No.1, if

permitted to continue would, without doubt, degenerate into

harassment against the petitioners and would result in

miscarriage of justice. Therefore, the proceedings impugned

warrant appropriate interference.

9. In the light of the facts obtaining in the case at hand

and the judgments of the Apex Court, I pass the following:

ORDER

(i) The writ petition insofar as it pertains to the 1st petitioner/husband stands dismissed.

(ii) The writ petition insofar as it pertains to petitioner Nos.2 to 5 is allowed and the proceedings concerning them in Crime No.92 of 2018 pending before the VI

Additional Chief Metropolitan Magistrate, Bengaluru stand quashed.

It is made clear that the observations or consideration of

law on the point are restricted only to the consideration of case

of the petitioners under Section 482 of the Cr.P.C. The trial

Court shall not be influenced by the observations made or the

result of this petition, while proceeding with the trial against any

other accused.

Sd/-

JUDGE

nvj CT:MJ