Karnataka High Court
Mrs. Shabna Yousuf, vs State Of Karnataka on 24 May, 2021
Author: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.1096/2020
BETWEEN:
1. MRS. SHABNA YOUSUF,
AGED ABOUT 35 YEARS,
W/O MR. RASHID PATTAKAL,
R/A SJR EQUINOX, DODDATHOGUR,
BENGALURU SOUTH, ELECTRONIC CITY,
BENGALURU-560100.
2. MR. YUSUF N.K.,
AGED ABOUT 75 YEARS,
S/O LATE MR.NELLIKA PARAMBIL KANKMUKUTTY,
R/A 90/106, JAMIYA NAGAR,
KOVAIPUDUR, COIMBATORE,
TAMILNADU-641042.
3. MR. FEROZ YOUSUF,
S/O N.K. YOUSUF,
AGED ABOUT 40 YEARS,
R/A 90/106, JAMIYA NAGAR,
KOVAIPUDUR, COIMBATORE,
TAMILNADU-641042.
4. MR. JAMAL N,
AGED ABOUT 45 YEARS,
S/O ADHEM,
R/A NO.174A/G-2,
ORCHIDS RAKINDO,
COIMBATORE SOUTH,
KOVAIPUDUR,
TAMILNADU-641042.
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5. MR. RAFEEQ KINARAMAKAL,
S/O MOHAMMED KUTTY,
AGED ABOUT 49 YEARS,'
R/A NO.6, PRESTIGE MAYBERRY VILLAS,
CHANNASANDRA MAIN ROAD,
NAGONDANAHALLI,
CHANNASANDRA, WHITEFIELD,
BENGALURU-560067. ... PETITIONERS
[BY SRI PRAJITH C., ADVOCATE (THROUGH V.C.)]
AND:
1. STATE OF KARNATAKA,
BY THE POLICE OF
ELECTRONIC CITY POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
2. RASHID PATTAKAL,
S/O LATE MR.HAMZA,
AGED ABOUT 43 YEARS.
3. MRS. NAFEESA,
W/O LATE MR. HAMZA,
AGED ABOUT 67 YEARS.
4. MASTER REHAAN,
S/O RASHID PATTAKAL,
AGED ABOUT 10 YEARS,
REB. BY RESPONDENT NO.2 HEREIN,
THE RESPONDENT NOS.2 TO 4 ARE
RESIDING AT: E-405,
SJR EQUINOX APARTMENTS,
DODDATHAGUR, ELECTRONIC CITY PHASE-1,
BENGALURU-560100.
... RESPONDENTS
[BY SMT. NAMITHA MAHESH B.G., HCGP FOR R-1;
SRI S.N. SAMEER, ADVOCATE FOR R-2 TO R-4]
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THEM IN CR.NO.199/2019 FILED BY THE POLICE OF
ELECTRONIC CITY POLICE STATION, BENGALURU FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 506, 509, 458, 453,
504 R/W 34 OF IPC PENDING ON THE FILE OF THE CHIEF
JUDICIAL MAGISTRATE, BENGALURU RURAL, BENGALURU.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.04.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C, praying
this Court to quash the entire proceedings against the petitioners
in Crime No.199/2019 filed by the police of Electronic City Police
Station, Bengaluru for the offences punishable under Sections
506, 509, 458, 453, 504 read with Section 34 of IPC pending on
the file of the Chief Judicial Magistrate, Bengaluru Rural,
Bengaluru.
2. The factual matrix of the case is that respondent
Nos.2 to 4 have filed a complaint against the petitioners herein
before the Additional Chief Judicial Magistrate at Bengaluru Rural
which is numbered as PCR No.392/2019 wherein an allegation is
made against the petitioners that on 19.11.2017 petitioner No.1
came along with her family members/relatives to the
complainant's house at 9.20 p.m. when it was time for the child
to sleep and created havoc outside the apartment by ringing the
bell continuously for 20 minutes and threatening the complainant
to take complainant No.3 against his wishes. In order to
safeguard and protect complainant No.3, intimated the police
and the police arrived in 20 minutes and then the complainant
No.1 opened the door and requested the police to protect
complainant Nos.2 and 3. It is also an allegation in the
complaint that on 20.11.2017 they came along with lawyer and
barged into Candor school where the complainant No.3 was
studying at that time. Accused Nos.1 to 3 and 5 had an evil
motive of kidnapping the complainant No.3 from the school. It is
also an allegation that on 01.06.2018 at around 7.30 p.m.
complainant Nos.1 to 3 were going out in the car and outside the
gate of the society, accused No.1 was standing on the footpath.
When the car entered the road in front of the society, suddenly
accused No.1 created huge drama. The car was stationed on the
road as there was traffic jam at that time and accused No.1
came to the road and jumped in front of the complainant's car
and started screaming and trying to create negative scene in
front of the public. Similar allegations are also made in the
complaint referring the date 22.06.2018 and 31.08.2018 and
stated that the complainant and their family were unable to bear
the mental torture and hence requested to initiate the
proceedings against the petitioners herein. The learned
Magistrate after receiving the complaint referred the matter
under Section 156(3) of Cr.P.C. for investigation. Hence, the
present petition is filed before this Court for quashing of the FIR.
3. The learned counsel for the petitioners would
vehemently contend that the marriage of petitioner No.1 was
solemnized with respondent No.2 on 28.01.2007 and in the
wedlock a child was born on 24.09.2008 i.e., respondent No.4
Master Rehaan. The differences were arisen between the parties
and in 2017 G & WC No.26/2017 was filed seeking for
appointment of guardian for respondent No.4. The matter was
settled between the parties on 03.01.2018. In terms of the
settlement in G & WC that on 01.06.2018 petitioner No.1 went
to SJR Apartment to see her son i.e., respondent No.4 and
respondent No.2 i.e., the husband of petitioner No.1 assaulted
her. As a result petitioner No.1 has suffered injuries and blood
was oozing from her nose and she took treatment in
Ramakrishna Hospital. Petitioner No.1 filed complaint on
02.06.2018 against respondent No.2 before the Electronic City
police i.e., respondent No.1 and NCR was registered bearing
No.110/2018. That on 04.06.2018 a detailed email was written
by petitioner No.1 with respect to the inhuman acts of
respondent No.2 to the Karnataka State Commission for Women.
That on 21.06.2018 petitioner No.1 again filed a complaint and
the police have registered the FIR in Crime 198/2018 for the
offence punishable under Sections 341, 323 and 506 of IPC. The
case in G & WC No.26/2017 was re-opened and the learned Civil
Judge had directed respondent No.2 to adhere to the terms
which was agreed as per order dated 03.01.2018. The police
after the investigation have filed the charge-sheet against the
respondent No.2. Respondent No.2 again filed G & WC
No.34/2018 invoking Section 7 of the Guardian and Wards Act,
1890. In the mean while, the present private complaint is filed
before the learned Chief Judicial Magistrate and the same is
numbered as Crime No.199/2019. Hence, the petitioners
without any other alternative have approached this Court.
4. The learned counsel for the petitioners would
vehemently contend that the property was purchased in the
name of petitioner No.1 and respondent No.2 jointly and the
question of trespassing and the ingredients of Sections 458 and
453 does not arise. The learned counsel would contend that
under clause 19 of the settlement arrived between the parties,
visiting right is given to the petitioner No.1 herein. In terms of
the settlement they have not acted upon and petitioner No.1 has
not seen the child from the last two years. The Court has not
taken any decision in G & WC and no legal custody was given
and it is only a settlement arrived between the parties. In spite
of they agreed to give visiting right to petitioner No.1, they are
not allowing petitioner No.1 to see her son. Petitioner No.4 is
the advocate who represented the petitioner No.1 before the
Trial Court and only with an intention to harass the petitioners
herein the present private complaint is filed not only against the
petitioner but also against the advocate. The learned counsel
would contend that in paragraph No.22 of the objection
statement, the respondents have admitted the purchasing of the
property jointly and they were staying in the very same house
and the offences which have been invoked against the
petitioners is nothing but an abuse of process and hence it
requires interference of this Court.
5. The learned counsel in support of his arguments, he
relied upon the judgment of the Apex Court in the case of
SUNDAR BABU AND OTHERS v. STATE OF TAMIL NADU
passed in Crl.A.No.773/2003 dated 19.02.2009, wherein the
Apex Court discussed the scope for interference while exercising
jurisdiction under Section 482 of Cr.P.C. taking note of the
principles laid down in the case of Bajan Lal and also brought to
the notice of this Court paragraph No.5 wherein illustrative
examples are laid down and also brought to the notice of this
Court paragraph Nos.6 to 8 wherein the Apex Court observed
with regard to abuse of process. Hence, the learned counsel
would contend that this judgment is aptly applicable to the case
of hand.
6. The learned counsel also relied upon the judgment of
the High Court of Punjab and Haryana in the case of ANITA
KUMARI AND OTHERS v. KISHAN KUMAR AND OTHERS
passed in CRM M No.34845/2013 decided on 07.08.2018 and
brought to the notice of this Court paragraph No.12 of the
judgment wherein the High Court has discussed the judgment of
the Apex Court in the case of M/s. Pepsi Foods Ltd. v. Special
Judicial Magistrate regarding summoning of an accused in a
criminal case is a serious matter. Criminal law cannot be set
into motion as a matter of course, it is not that the complainant
has to bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The order of
the Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law applicable
thereto. The learned counsel referring this judgment would
contend that the learned Judge has not applied his mind while
referring the matter under Section 156(3) of Cr.P.C.
7. The learned counsel also relied upon the Delhi High
Court judgment in the case of KAVITA DASS v. NCT OF DELHI
AND OTHERS decided on 17.04.2012 in Criminal
M.A.No.19672/2011, wherein the Court held that the Court shall
not remove wife of person from her matrimonial house, whether
owned by his ancestral or rented house, if she entered into
house with no intention of committing the offence and the Delhi
High Court also quashed the proceedings initiated against the
wife.
8. The learned counsel also relied upon the Madras High
Court judgment passed in Crl.O.P.No.28720/2009 and M.P.No.
1/2009 dated 18.04.2017 and brought to the notice of this Court
paragraph No.10 wherein the Madras High Court observed that
the present criminal original petition is intended to harass the
petitioner and settle the issue in his favour by respondent No.1.
The learned counsel referring the above judgment would contend
that it is a clear case of abuse of process and after thought only
the present complaint is filed. Though several allegations are
made from 2017, the complaint was filed in 2019 belatedly
taking the advantage that the child is in their custody in view of
the settlement arrived between the parties and now they are not
allowing the mother i.e., petitioner No.1 to see the child. Hence,
it requires interference of this Court.
9. Per contra, the learned counsel for respondent Nos.2
to 4 would vehemently contend that the marriage was
solemnized on 28.01.2007. In the private complaint the
incidents have been set out and the learned Magistrate looking
into the complaint averments invoked Section 156(3)of Cr.P.C.
and a detailed order has been passed while referring the matter
under Section 156(3) of Cr.P.C. The learned counsel would
contend that the child is not going with the mother and the
petitioners are trespassing the house of the complainant and
causing threat and abusing the complainant and hence without
any other alternative they have approached the Court by filing
private complaint and no grounds are invoked to quash the
proceedings initiated against the petitioners.
10. The learned High Court Government Pleader
appearing for respondent No.1 - State would contend that the
matter is under investigation and the same has to be
investigated by the police and the petitioners have not made out
any case to quash the proceedings invoking Section 482 of
Cr.P.C.
11. In reply to the arguments of the learned counsel for
respondent Nos.2 to 4 and the learned High Court Government
Pleader, the learned counsel for the petitioners would contend
that writ which has been filed by the respondent is not against
any order of the Trial Court and document of assault is also
produced before the Court and the police have investigated the
matter and filed the charge-sheet against the respondent. The
learned counsel also brought to the notice of this Court the sale
deed which is standing in the name of petitioner No.1 and
respondent No.2 jointly for having purchased the property and
referring the said document, the learned counsel would contend
that the ingredients of the offence under Sections 453 and 458
does not attract.
12. Having heard the learned counsel for the petitioners,
the learned counsel for respondent Nos.2 to 4 and the learned
High Court Government Pleader, this Court has to analyze the
material available on record. It is not in dispute that the
marriage of petitioner No.1 was solemnized in 2007 with
respondent No.2 and it is also not in dispute that the child was
born on 24.09.2008 i.e., respondent No.4 Master Rehaan. It has
to be noted that the dispute between the parties was arisen and
as a result G & WC was filed in 2017. The learned counsel for
the petitioners brought to the notice of this Court that the matter
was settled between the parties in G & WC No.26/2017. On
perusal of the settlement arrived between the parties in terms of
Annexure-Q in paragraph No.3 terms and conditions have been
set out. It is clear that the custody of the child Master Rehaan
shall be with petitioner/father but respondent/mother shall have
interim custody of the minor child between Friday evening 7.00
p.m. to Sunday evening 7.00 p.m. on 1st and 3rd weekends and
2nd and 4th weekends with the petitioner/father every month,
based on the mutual consent of both parents and convenience,
weekends can be swapped if required. The third condition is also
clear that the respondent agrees to pick up the child from
outside the petitioner's society, Electronic City on two weeks of
every month at 7.00 p.m. The respondent also agrees to drop
the child at Friday evening at 7.00 p.m. at common place which
is mid way between Whitefield and Electronic City on two
weekends of every month.
13. Having taken note of Annexure-Q, it is clear that G &
WC No.26/2017 was disposed of in terms of the settlement. It
has to be noted that petitioner No.1 herein went near the place
of respondent No.2 in order to pick up the child. It is important
to note that the present complaint is filed in 2019 and I have
already pointed out that different date of incident was set up
from 2017. It is important to note that the police have
registered the case against respondent No.2 based on the
complaint of petitioner No.1 herein in Crime No.198/2018 on
account of the incident dated 01.06.2018 for the offences
punishable under Sections 341, 323 and 506 of IPC. It is also
not in dispute that the police have investigated the matter and
filed the charge-sheet and the same is numbered as
C.C.No.10582/2018 i.e., on 15.09.2018. It is important to note
that the settlement was arrived between the parties on
03.01.2018 and dispute started in the month of June 2018 after
both of them settled the matter in G & WC. It is also not in
dispute that subsequently respondent No.2 also filed fresh
petition G & WC No.34/2018 subsequent to the registration of
the case against the respondent No.2 herein. Respondent No.2
to 4 have kept quiet from 2017 to 2019 though several
allegations are made in between two years. When the case has
been registered against respondent Nos.2 to 4, they have
thought to file private complaint against the petitioners herein.
14. Having taken note of the factual aspects of the case,
it is clear that only after thought the present private complaint is
filed by respondent Nos.2 to 4 against the petitioners herein.
Though several allegations are made that these petitioners have
caused life threat and abused from 2017 onwards, no complaints
are filed. Hence, it is clear that only after thought the private
complaint is filed. It is nothing but an abuse of process. It is
important to note that in terms of the settlement, respondent
No.2 has to allow petitioner No.1 to take the child from his house
and instead of sending the child along with petitioner No.1 in
terms of the settlement, now they have given the criminal colour
to a civil dispute with regard to handing over of the child to the
custody of petitioner No.1 and invoked the offences punishable
under Sections 453 and 458 of IPC. It is rightly pointed by the
learned counsel for the petitioners that the sale deed came into
existence in the name of petitioner No.1 and respondent No.2 in
the year 2010 and they have jointly purchased the property. It
is important to note that when the property is purchased in the
joint name, there is a force in the contention of the learned
counsel for the petitioners that the ingredients of the said
offence does not attract. The learned counsel for the petitioners
also brought to the notice of this Court paragraph No.22 of the
objection statement wherein the respondents have admitted
sharing of the very same house by petitioner No.1 along with
respondent No.2 when they were living together and the said
fact is also not disputed by respondent No.2. No doubt the
respondent No.2 would vehemently contend that the child is not
going with the mother and the said contention cannot be
accepted when the settlement was arrived between the parties
agreeing to send the child along with petitioner No.1 in terms of
the order passed by the Court. I have already pointed out that
private complaint is filed after thought in 2019 after filing of the
charge-sheet against respondent No.2 for assaulting petitioner
No.1.
15. The other contention of the learned counsel for the
petitioners is that the learned Magistrate has not applied his
judicious mind while referring the matter under Section 156(3)
of Cr.P.C. Having taken note of the order passed by the learned
Magistrate, the learned Magistrate vide his order dated
19.08.2019 mentioned that perused and heard and referred the
matter for investigation. First of all, the learned Magistrate has
not applied his judicious mind and even there is no reference in
the order that he has gone through the contents of the complaint
and whether the complaint discloses cognizable or non-
cognizable offence, nothing has been mentioned in the order.
The learned Magistrate has not referred to any documents
produced along with complaint and mechanically passed the
impugned order referring the matter under Section 156(3) of
Cr.P.C. The learned Magistrate has not applied his mind and
also even not formed any opinion whether the matter requires
investigation invoking Section 156(3) of Cr.P.C. The order
impugned is also a mechanical order and without any application
of mind, it has been passed.
16. Having taken note of the factual aspects of the case
and the material on record, it is clear that private complaint is
filed only with an intention to harass the petitioners herein as
contended by the learned counsel for the petitioners and I have
already pointed out that the complaint is filed in 2019 after filing
of the charge-sheet against respondent No.2. The learned
Magistrate also failed to take note of the factual aspects and
without application of mind proceeded to refer the matter under
Section 156(3) of Cr.P.C. Having taken note of the factual
aspects, it is not a case for even remitting the matter to the Trial
Court to consider the matter afresh and if the private complaint
is continued against the petitioners herein, it amounts to
miscarriage of justice and it is noting but an abuse of process.
Hence, it requires interference of this Court invoking Section 482
of Cr.P.C. Respondent No.2 instead of complying with the order
of the Trial Court passed in G & WC, invoked the criminal
jurisdiction against his wife when she went and requested to
hand over the child in terms of the agreement arrived between
the parties and also assaulted the petitioner No.1 herein and
caused injuries to her and case has been registered against
respondent No.2 after the investigation.
17. In view of the discussions made above, I pass the
following:
ORDER
(i) The petition is allowed.
(ii) The proceedings initiated against the
petitioners herein in Crime No.199/2019 is
hereby quashed.
Sd/-
JUDGE
MD
