Mohammed Rafi vs State Of Karnataka
2021 Latest Caselaw 2231 Kant

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                                       Crl.P.No.3140/2017




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF JUNE 2021

                      BEFORE

     THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

      CRIMINAL PETITION NO.3140/2017
BETWEEN:
  1. MOHAMMED RAFI
     S/O K.M.ABBAS
     AGED 42 YEARS
     RESIDING AT NO.9, 2ND MAIN ROAD
     OPPOSITE WARD OFFICE
     RT NAGAR, BANGALORE - 560 032

  2. SRI.K.M.ABBAS
     S/O KUMBLE MOHAMMAD
     AGED 78 YEARS
     KALANDER COTTAGE
     HOUSING BOARD,
     JAVAGAL, ARASIKERE TALUK
     HASSAN DISTRICT - 573 125

  3. SRI.ABDUL REHMAN
     S/O K.M.ABBAS
     AGED 38 YEARS
     RESIDING AT NO.17, BALAJI APARTMENTS
     BASAPPA LAYOUT, HBR RING ROAD
     BANGALORE - 560 043

  4. SRI.ABDUL RAZAK
     S/O MOHAMMAD KUNHI
     AGED 40 YEARS
     RESIDING AT PANANGADI HOUSE
     MANJESHWAR, KASARAGOD DISTRICT
     KERALA STATE - 671 323

  5. SMT. ASMA
     W/O JAMALUDDIN
     AGED 44 YEARS
     RESIDING AT JAMMA MASJID
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                                      Crl.P.No.3140/2017




       BELLARE, SULLIA TALUK
       D K DISTRICT - 574 212
  6. SMT.JOHARA
     W/O ABDUL REHMAN HAJI
     AGED 48 YEARS
     NEAR PHILOMINA COLLEGE
     DARBE, PUTTUR
     DAKSHINA KANNADA DISTRICT - 574 201
  7. SMT.B.B.KALANDER
     W/O ABDUL RAZAK
     AGED 34 YEARS
     RESIDING AT PANANGADI HOUSE
     MANJESHWAR, KASARAGOD DISTRICT
     KERALA STATE                   ...PETITIONERS
(BY SRI.M.VINOD KUMAR, ADVOCATE)

AND:

  1. STATE OF KARNATAKA
     REP. BY S.H.O.
     ALL WOMEN POLICE STATION
     MANGALORE
     DAKSHINA KANNADA DISTRICT
     REP. BY THE STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     VIDHANASOUDHA, BANGALORE

  2. SMT.FATHIMA SHAHISTHA
     D/O M.HUSSAIN
     AGED 33 YEARS
     NEAR NADUPALLI
     KALALA ROAD, KUIDROLI
     DAKSHINA KANNADA              ... RESPONDENTS
(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1;
    SRI.T.I.ABDULLA, ADVOCATE FOR R2)
     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE
PROCEEDINGS   IN   C.C.NO.66/2016  (FIR  IN  CRIME
NO.15/2015 OF WOMEN POLICE STATION, MANGALURU)
PENDING ON THE FILE OF III ADDITIONAL JMFC,
MANGALURU FOR THE OFFENCES PUNISHABLE UNDER
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                                            Crl.P.No.3140/2017




SECTIONS 498A, 504, 506, 323 READ WITH 34 OF IPC AND
SECTION 4 OF D.P.ACT.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 7TH JUNE 2021, COMING ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:

                          ORDER

"Whether the proceedings in C.C.No.66/2016 on

the file of III Additional JMFC, Mangaluru against the

petitioners amount to abuse of the process of the

Court?" is the question involved in this case.

2. The petitioners are accused Nos.1 to 7 in

C.C.No.66/2016 on the file of the III Additional JMFC,

Mangaluru. The said case was initiated on the basis of

the charge sheet filed by the first respondent-Police in

Crime No.15/2015 of Women Police Station, Mangaluru.

Crime No.15/2015 was registered against the

petitioners on the basis of the complaint filed by the

second respondent for the offences punishable under

Sections 323, 498A 504, 506 read with 34 IPC.

3. The marriage of the first petitioner with

second respondent was solemnized on 17.06.2000.

Petitioner No.2 is the father, Petitioner No.3 is the

Crl.P.No.3140/2017

brother and petitioner Nos.5 and 6 are the married

sisters and petitioner Nos.4 and 7 are the relatives of

the first petitioner. Out of their marriage, petitioner

No.1 and the second respondent have two children aged

13 years and 5 years. After their marriage, petitioner

No.1 and the second respondent lived in Saudi Arabia

from December 2000 to 23.05.2012. On their return to

India, the first petitioner and the second respondent

lived separately from the other petitioners in Bengaluru

and Mangaluru.

4. The second respondent filed complaint

alleging that the first petitioner drove her out of

matrimonial home about 7 to 8 months prior to the

complaint. Since then she is living in her parental home

at Mangaluru.

5. The allegations in the complaint are as

follows:

i) The first petitioner sold 250 grams of gold

jewellery given to her by her parents at the time of

marriage and squandered that money.

Crl.P.No.3140/2017

ii) The accused subjected her to physical and

mental cruelty in connection with their demand for

additional dowry and threatened that they will burn her

if she fails to fulfil their demand.

iii) The first petitioner was addicted to alcohol,

Narcotic drugs, had extra marital relationship with sales

girl and was harassing her in that background.

iv) That on 19.04.2015 at about 1.30 p.m.

when she had been to see her father in Unity hospital

Mangaluru, the first petitioner came there, assaulted her

and her brothers and caused injuries.

6. On the basis of the said complaint, the first

respondent-Police registered FIR in Crime No.15/2015,

conducted the investigation and filed the charge sheet

as aforesaid. On receiving the charge sheet, the trial

Court took cognizance of the offences, summoned the

petitioners to face the trial.

7. The petitioners seek quashing of the

proceedings on the following grounds:

i) Absolutely there is no material to constitute

the offence alleged against them;

Crl.P.No.3140/2017

ii) Petitioner Nos.2 to 7 are implicated only

with an intention to harass them. No case is made out

against them.

iii) Petitioner Nos.5 and 6 the sisters of the first

petitioner were married much prior to the marriage of

the first petitioner and second respondent and living

separately in their matrimonial homes.

iv) Petitioner Nos.3, 4 and 6 are also living at

different places and they were falsely implicated in the

case.

v) It was the second respondent and her

brothers who assaulted the first petitioner on

19.04.2015. On the basis of the complaint filed by the

first petitioner in that regard, the first respondent-Police

registered Crime No.36/2015 against the brothers of the

second respondent. Thus Crime Nos.15/2015 and

36/2016 are the case and counter cases.

vi) The wound certificate of the first petitioner

shows that he had suffered the injuries. The statement

of the second respondent shows that herself and her

Crl.P.No.3140/2017

brother had not suffered any injury and they have not

taken any treatment.

vii) The matrimonial dispute is given the colour

of criminal case, therefore liable to be quashed.

8. Reiterating the grounds of petition, learned

counsel for the petitioner relies upon the following

judgments:

          i)      State    of     Haryana   and    others    vs.
                  Bhajanlal and others1
          ii)     Indian Oil Corporation vs. NEPC India
                  Ltd and others2

9. Per contra, learned HCGP and learned

counsel for the second respondent oppose the petition

on the following grounds:

i) The charge sheet is already filed. At this stage,

the Court cannot embark on enquiry to find out whether

the case for conviction is made out.

ii) It is open to the petitioners to raise all such

contentions in defence during trial.

AIR 1992 SC 604

(2006) 6 SCC 736

Crl.P.No.3140/2017

10. It is settled position of law that the power

under Section 482 of Cr.P.C., shall be sparingly

exercised to quash the criminal proceedings. However,

the larger Bench of the Hon'ble Supreme Court as long

back as in 1992 in Bhajanlal's case referred to Supra

held that if the High Court is satisfied that the criminal

proceedings amount to abuse of the process of the

Court can quash the proceedings to prevent the failure

of justice.

11. The Hon'ble Supreme Court in para No.108

of the judgment in Bhajan Lal's case referred to Supra

identified categories of cases in which power could be

exercised to prevent abuse of process of the Court and

to secure ends of justice. For the purpose of this case,

paragraphs 108(1),(3),(5),(7) are relevant which read

as follows:

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers

Crl.P.No.3140/2017

under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to

lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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.

2. ......

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. ...

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

Crl.P.No.3140/2017

6. ....

7. Where a criminal proceeding is manifestly attended with mala fide 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."

(Emphasis supplied)

12. Regarding tendency of the parties cloaking

the family dispute into criminal case, the Hon'ble

Supreme Court in para 13 of the judgment in Indian

Oil Corporation's case referred to supra held as

follows:

"While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal

Crl.P.No.3140/2017

prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [2000(2) SCC 636], this Court observed :

"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

(Emphasis supplied)

13. In the light of the guidelines laid in the

above judgments, this Court has to examine whether

there was material to proceed against the petitioners.

Admittedly, the second respondent is pressing the first

Crl.P.No.3140/2017

petitioner for divorce. Admittedly after the marriage

she lived in her matrimonial home hardly for about 6

months. Thereafter for about 12 years petitioner No.1

and the second respondent lived in Saudi Arabia. It is

not her case that during her stay in Saudi Arabia, any

other petitioners visited their house.

14. Second respondent alleged that petitioner

Nos.2 to 7 after the marriage harassed her for the

sake of additional dowry. But, after lapse of 15 years,

the complaint is purportedly filed on 19.04.2015. The

FIR was registered on 20.04.2015 at 7.30 p.m. and was

delivered to the Magistrate on 21.04.2015 at 11.00

a.m.

15. Even in the complaint it is stated that she

delayed filing of complaint expecting that the accused

would come for a Panchayat/settlement. The

particulars of time and place of cruelty by petitioner

Nos.2 to 7 in connection with alleged demand of

25,00,000/- are absent.

Crl.P.No.3140/2017

16. Admittedly, petitioner Nos.5 and 6 the

sisters of the first petitioner, were married much prior

to the marriage of the petitioner and second respondent

and living in far off places in their respective

matrimonial homes. Admittedly, the other petitioners

were also not living with the first petitioner and the

second respondent.

17. Then what is left with regard to the cruelty

is the incident dated 19.04.2015 at 1.30 p.m. at

Mangaluru. Neither the complainant nor any of the

charge sheet witnesses impute any role to petitioner

Nos.2 to 7 in the said incident. Therefore, on looking

into the complaint and charge sheet material itself, it

can be said that the case of petitioner Nos.2 to 7 is

covered under paragraphs 108(1)(3)(5) and (7) of

Bhajanlal's case and para 13 of Indian Oil

Corporation's case referred to supra and the

proceedings against them are liable to be quashed.

18. So far as the first petitioner, there are

specific allegations that on a particular date, time and

Crl.P.No.3140/2017

place, he assaulted the second respondent and her

brothers. He himself has filed complaint against the

brothers of the second respondent alleging assault on

him at the same time and place. Therefore, Crime

Nos.15/2015 and 36/2015 are the case and counter

cases. Who were the agressors has to be decided on

trial. Under the circumstances, so far as the first

petitioner it is not a fit case to quash the proceedings.

Therefore the petition is partly allowed.

The proceedings in C.C.No.66/2016 on the file of

the III Addl. JMFC Court at Mangaluru in Crime

No.15/2015 against petitioner Nos.2 to 7 are hereby

quashed. The petition of the first petitioner is

dismissed.

Sd/-

JUDGE

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