Mr Aslam Mohammed vs State Of Karnataka
2021 Latest Caselaw 262 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JANUARY, 2021

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION No.4223/2020

BETWEEN:

1.   MR ASLAM MOHAMMED
     S/O MR. MEER MOHAMMED HASHIM
     AGED ABOUT 50 YEARS
     PERMANENTLY RESIDING AT

2.   SHAMEEMUNNISA
     S/O MEER MOHAMMED HASHIM RETD (KPSC)
     AGED ABOUT 72 YEARS,

3.   MEER MOHAMMED HASHIM
     S/O LATE ABDUL HAKIM REHAMAN
     AGED ABOUT 80 YEARS,

     APPELLANTS 1 TO 3 ARE
     CURRENTLY RESIDING AT NO.22
     2ND CROSS, ANJANEPPA BLOCK,
     KRISHNAMMA GARDEN
     BENSON TOWN POST
     BENGALURU-560046

4.   HAJIRA MOHAMMEDI
     W/O SYED BABAJAN
     CURRENTLY RESIDING AT
     NO.10, KOOLZ ENCLAVE APARTMENTS
     NO.F1, 1ST FLOOR, KRISHNAMMA GARDEN
     BENSON TOWN POST
     BENGALURU-560046
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5.     MOHAMMED AIJAZ
       S/O MR MEER MOHAMMED HASHIM
       AGED ABOUT 45 YEARS,
       CURRENTLY RESIDING AT NO.22
       2ND CROSS, ANJANEPPA BLOCK,
       KRISHNAMMA GARDEN
       BENSON TOWN POST
       BENGALURU-560046

6.     MOHAMMED AKRAM
       S/O MR MEER MOHAMMED HASHIM
       AGED ABOUT 47 YEARS,
       PERMANENTLY RESIDING AT NO.55,
       KOOLZ OPAL HILL APARTMENTS
       FLAT NO.A2, 1ST MAIN,
       SHESHADRI ROAD
       BENSON TOWN POST
       BENGALURU-560046

7.     MOHAMMED IQBAL
       S/O MR MEER MOHAMMED HASHIM
       AGED AOBUT 40 YEARS,
       PERMANENTLY RESIDNG AT
       NO.55, KOOLZ OPAL HILL APARTMENTS
       FLAT NO.A2, 1ST MAIN,
       SHESHADRI ROAD
       BENSON TOWN POST
       BENGALURU-560046.               ... PETITIONERS

     [BY MS. MONICA PATIL, ADVOCATE (VIDEO CONFERENCE)
AND SRI. SHIRISH KRISHNA, ADVOCATE (PHYSICAL HEARING)]


AND:

1.     STATE OF KARNATAKA
       J C NAGAR POLICE STATION
       BENGALURU-560046
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       REPRESENTED BY THE PUBLIC PROSECUTOR
       ATTACHED TO THE COURT

2.     MRS. SYEDA HAJIRA TABRIN
       AGED ABOUT 34 YEARS
       REISING AT NO.22/2
       ANJANAPPA BLOCK
       KRUSHNAMMA GARDEN
       BENSON TOWN
       BENGALURU-560 046.                      ... RESPONDENTS


             (BY SRI. K.S. ABHIJITH, HCGP FOR R1
     NOTICE TO R2 IS HELD SUFFICIENT VIDE OREDER DATED
                         03.11.2020)


       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE IMPUGNED FIR BEARING
CRIME     No.114/2019   DATED     06.12.2019    (ANNEXURE-A)
REGISTERED BY THE RESPONDENT No.1, J.C. NAGAR POLICE
STATION, BENGALURU PENDING ON THE FILE OF THE 8TH
ADDITIONAL CMM, COURT, BENGALURU AND CONSEQUENTLY
QUASH THE IMPUGNED COMPLAINT DATED 06.12.2019 OF THE
RESPONDENT No.2 (ANNEXURE-B).


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

Though the matter is listed for admission, with consent of

the parties taken up for final disposal.

2. Heard the learned counsel for the petitioners and

also the learned High Court Government Pleader appearing for

the State.

3. This petition is filed under Section 482 of Cr.P.C.

praying this Court to quash the impugned FIR in Crime

No.114/2019 dated 6th December, 2019 for the offences

punishable under Sections 498A and 504 of I.P.C. and Sections 3

and 4 of Dowry Prohibition Act.

4. On perusal of the factual matrix of the case, the

complainant had lodged the complaint on 06.12.2019. Based on

the complaint, police have registered the case for the offences

punishable under Sections 498A and 504 of I.P.C and Sections 3

and 4 of Dowry Prohibition Act. It is alleged in the complaint that

the marriage of the complainant was solemnized with petitioner

No.1 on 13.12.2015 and the complainant had joined the

matrimonial house. Both the complainant and petitioner No.1 are

earlier neighbourers. They got married earlier and obtained

divorce from the first marriage. After the marriage of the

complainant with petitioner No.1, she was living with him. The

husband of the complainant and his family members looked after

her well for a short period and thereafter subjected her for both

mental and physical harassment saying that she has not given

any dowry. The complainant tolerated the cruelty meted out to

her by them. The family members of the petitioner No.1 were

not providing food to her and her son and so also the petitioners

have not allowed the complainant to sleep with her husband and

subjected her for both mental and physical cruelty. The father-

in-law and sister-in-laws used to abuse her in filthy language.

The husband of the complainant went to abroad leaving her in

the year 2018 and thereafter, the harassment by the other

petitioners was continued. The other petitioners have also

instigated her husband and the family members, though they

were staying in abroad. Based on the complaint, case has been

registered.

5. Learned counsel appearing for the petitioners

vehemently submit that no such incident has been taken place

and she was not subjected to any mental or physical cruelty and

so also there is no demand for any money after the marriage of

the complainant with petitioner No.1. Only a false complaint has

been filed. It is also contended that the petitioners are staying

abroad and hence, the question of instigating the family

members of petitioner No.1 does not arise.

6. Learned High Court Government Pleader appearing

for the State would submit that the averments of the complaint

are very specific, wherein the specific allegations are made that

after solemnization of the marriage between the petitioner No.1

and the complainant in the year 2015, the complainant was

subjected to both mental and physical harassment. When such

specific allegation is made in the complaint, the question of

invoking Section 482 of Cr.P.C. to quash the registration of the

case against the petitioners does not arise. The Court has to

look into the contents of the complaint while exercising the

powers under Section 482 of Cr.P.C.

7. Having heard the learned counsel for the petitioners

in the morning session through video conference for a period of

20 minutes, the learned counsel who argued the case made the

submission that she would appear before this Court when this

Court about to pass the order. In the afternoon session, the

learned counsel sent another colleague, who makes the

submission that they are going to settle the matter. This Court

has issued notice against the complainant and complainant,

inspite of service of notice, did not choose to appear before this

Court. Hence, the question of settlement as submitted by the

learned counsel does not arise.

8. Learned counsel appearing for the petitioners in the

afternoon session brought to the notice of this Court para No.20

of the judgment of the Apex Court in the case of Geeta

Mehrotra and Another v. State of Uttar Pradesh and

Another reported in (2012) 10 SCC 741, and would contend

that mere casual reference of the names of the family members

in a matrimonial dispute without allegation of active involvement

in the matter would not justify taking cognizance against them

overlooking the fact borne out of experience that there is a

tendency to involve the entire family members of the household

in the domestic quarrel taking place in a matrimonial dispute

specially if it happens soon after the wedding.

9. Learned counsel also relied upon the judgment of the

Apex Court in the case of Sreenivasan v. State by Inspector

of Police and Another reported in (2019) 8 SCC 642 and

brought to the notice of this Court para No.6, wherein the Apex

Court has held that as the appellant was not even residing in the

address of the complainant and his family members who are

accused No.1 to accused No.4 and in absence of specific

allegations and overt acts, we are of the view that if the

proceedings are allowed to go on against the appellant, it

amounts to abuse of process.

10. Learned counsel further relied upon the judgment of

the Apex Court in the case of Ramesh and Others v. State of

T.N. reported in (2005) 3 SCC 507 and brought to the notice of

this Court para No.6, wherein the Apex Court has made an

observation that at the most, the allegations reveal that her

sister-in-law was insulting and making derogatory remarks

against the complainant. The bald allegations made against her

sister-in-law seem to suggest the anxiety of the informant to

rope in as many of the husband's relations as possible. Neither

the FIR nor the charge sheet furnished the legal basis to the

Magistrate to take cognizance of the offences alleged against the

appellant Gowri Ramaswamy.

11. Learned counsel referring to these judgments would

contend that in the case on hand also, even while registering the

case against the family members, no specific allegations are

made and the fact that they are residing abroad is also not in

dispute. Hence, the principles laid down in the judgments

referred supra are aptly applicable to the case on hand.

12. This Court has given anxious consideration to the

principles laid down in the judgments referred supra. There is no

dispute with regard to the principles laid down in the said

judgments that in a matrimonial dispute, there is a tendency of

roping of all the family members. However, it is also the settled

law that while quashing the FIR, the Court has to take note of

the allegations made in the complaint. In the judgments quoted

by the learned counsel for the petitioners, the Apex Court has

discussed in detail with regard to roping of family members

considering both FIR as well as the charge sheet and the

observation made therein is also clear that neither the FIR nor

the charge sheet disclose that the case has been made out to

proceed with the case and comes to the occlusion that it

amounts to abuse of process.

13. In the case of hand, the question of abusing of

process does not arise since the case is registered based on the

complaint and I have already pointed out the specific allegations

are made in the complaint and when the specific allegations are

made in the complaint, this Court cannot exercise powers under

Section 482 of Cr.P.C. to quash the very registration of the case

when it requires to be investigated. If no allegations are made in

the complaint, then there could have been a force in the

contention of the learned counsel for the petitioners that there is

an abuse of process of law. This Court has to take note of the

contents of the complaint in order to analyse whether this is a fit

case to invoke Section 482 of Cr.P.C. and exercise the powers to

quash the registration of the FIR. While exercising the powers

under Section 482 of Cr.P.C., this Court has to exercise the

same sparingly. If the complaint does not disclose the

allegations made against the petitioners to invoke the offences

alleged against them and if it amounts to abuse of process and

leads to miscarriage of justice, then only the Court can invoke

Section 482 of Cr.P.C. or otherwise, the Court cannot exercise

the discretion under Section 482 of CR.P.C.

14. Having perused the contents of the complaint as

narrated above, the specific allegations are made against the

petitioners that they subjected the complainant for both mental

and physical harassment immediately after the marriage which

was taken place in the year 2015 and the specific allegations are

made that even though some of the petitioners are residing

abroad, they also instigated the husband and family members of

petitioner No.1 not to provide food to both the complainant and

her son. When such specific allegations are made in the

complaint, the same requires to be investigated and thus, the

question of quashing the registration of the FIR does not arise.

Hence, I do not find any merit in the petition to quash the FIR

registered against the petitioners. In so far as the judgments

relied upon by the learned counsel for the petitioners are

concerned, the Court has considered the matter after completion

of the investigation and taking of the cognizance. Hence, the

same is not applicable to the case on hand since in the case on

hand, only the case has been registered based on the contents

of the complaint but not investigated and filed charge sheet.

15. In view of the discussions made above, I pass the

following:-

ORDER

The petition is hereby rejected.

Sd/-

JUDGE

PYR