Viquar Sultana @ Vikhar Sultana ... vs The State Of Karnataka And Anr
2021 Latest Caselaw 3668 Kant

                           1




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 9TH DAY OF NOVEMBER 2021

                       BEFORE

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

        CRIMINAL PETITION No.201540/2019

BETWEEN:

1.   VIQUAR SULTANA @ VIKHAR SULTANA
     W/O TAJAMAL HUSSAIN
     AGED ABOUT 69 YEARS
     OCC: HOUSEHOLD
     R/O J.C. NAGAR
     BANGALORE CITY
     KARNATAKA

2.   ASEEF HUSSAIN S/O TAJAMAL HUSSAIN
     AGED ABOUT 29 YEARS
     OCC: SERVICE
     R/O J.C. NAGAR
     BANGALORE CITY
     KARNATAKA.
                                         ... PETITIONERS

(BY SRI. A.M.NAGARAL, ADVOCATE)


AND:

1.   THE STATE OF KARNATAKA
     THROUGH THE PSI
     TOWN PS, YADGIR
     REP. BY THE ADDL. STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA
     KALABURAGI BENCH-585103.
                               2




2.   VASIM FATIMA W/O ADIL HUSSAIN
     AGE: 30 YEARS, OCC: HOUSE WIFE
     R/O SADAR DARVAJA, YADGIRI
     TQ. AND DIST. YADGIR-585 201.
                                          ... RESPONDENTS

(BY SRI SHARANABASAPPA M.PATIL, HCGP FOR R1;
 NOTICE TO R2 SERVED)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE
FINAL REPORT IN CC.NO.10/2018 REGISTERED AT YADGIRI
TOWN PS, (CRIME No.253/2016) FOR OFFENCES PUNISHABLE
UNDER SECTIONS 498A R/W SECTION 34 OF THE INDIAN
PENAL CODE.


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


                         ORDER

Heard the learned counsel for the petitioners and the

learned High Court Government Pleader for the State.

2. The petitioners who are arrayed as accused

Nos.2 and 3 have approached this Court invoking section

482 of Cr.P.C., seeking relief of quashing of final report in

C.C.No.10/2018 filed for the offence punishable under

Sections 498A read with Section 34 of IPC.

3. The complainant has filed a complaint before

the respondent-Police making allegations against the

petitioners. The allegation against these two petitioners

and also her husband that her marriage was solemnized on

02.09.2015 and thereafter these petitioners and also her

husband subjected her for both mental and physical

cruelty. Based on the complaint, the police have

investigated the matter and filed the chargesheet. The

allegation against these petitioners who are the mother-in-

law and brother-in-law of the complainant that they have

instigated the accused No.1 and when the accused No.1

assaulted the complainant, the mother-in-law instigated

him to assault her and all of them joined together went to

the house of the complainant and her brother-in-law

assaulted her with hand on her back. This incident was

pacified by CWs.4 to 6.

4. The learned counsel for the petitioners would

submit that though her marriage was solemnized in the

year 2015 hardly she was in the house of accused No.1 for

20 days and most of the time she used to reside in the

house of her parental house at Yadgir. The learned

counsel for the petitioners would also submit that even

though accused No.1 had sent her visa and flight ticket

asking her to come to Netherlands on 10.05.2016, but she

refused to go to Netherlands to cohabit with him. The

complainant was behaving more indifferently with the

accused and false allegations are made against these two

petitioners and in no way these petitioners are connected

for any differences between the complainant and her

husband. The parents of the complainant refused to send

her and hence accused No.1 got issued the legal notice on

19.09.2016 to the complainant. He would further submit

that in terms of Annexure-C already Talaq nama was given

to the complainant and only with an oblique motive a false

complaint has been filed against these two petitioners and

it is nothing but abuse of process and if proceedings are

continued against the petitioners, it would amount to

miscarriage of justice.

5. The learned counsel for the petitioners in

support of his argument relied upon the judgment in the

case of Preeti Gupta and Another vs. State of

Jharkhand and Another reported in AIR 2010 SC 3363

and brought to the notice of this Court paragraph No.33 of

the said judgment wherein the Hon'ble Apex Court

observed that the ultimate object of justice is to find out

the truth and punish the guilty and protect the innocent.

To find out the truth is a Herculean task in majority of

these complaints. The tendency of implicating husband and

all his immediate relations is also not uncommon. At

times, even after the conclusion of criminal trial, it is

difficult to ascertain the real truth. The courts have to be

extremely careful and cautious in dealing with these

complaint and must take pragmatic realities into

consideration while dealing with matrimonial cases. The

allegations of harassment by the husband and close

relatives who had been living in different cities and never

visited or rarely visited the place where the complainant

resided would have an entirely different complexion. The

allegations of the complainant are required to be

scrutinised with great care and circumspection.

6. The learned counsel for the petitioners also

brought to the notice of this Court the paragraph No.8

onwards of the judgment in the case of Arun Mishra and

Varala Bharath Kumar and Another vs. State of

Telangana and another reported in AIR 2017 SC 4434

wherein also the Court has observed that Courts should be

very conscious of the fact that Section 498-A of the

Cr.P.C., was added to the Code with a view to punish the

husband or any of his relatives who harass or torture the

wife to coerce her or her relatives to satisfy unlawful

demands of dowry.

7. The learned counsel for the petitioners brought

to the notice of this Court the paragraph No.21 to 23 in the

judgment in the case of Raghottamachar Galagali and

Others vs. Station House Officer, Mahila Police,

Basavanagudi, Bangalore and others reported in 2008

Crl.L.J. 1538, wherein the this Court held that while

quashing the complaint the inherent powers shall be

exercised in rarest of the rare cases. If no specific

allegation is made against the petitioners i.e., husband and

in-laws, in respect of ill-treatment either mental or

physical torture meted out to complainant and material on

record does not disclose that any specific ill-treatment and

harassment was meted out to the complainant in that case

the Court can exercise power under section 482 of Cr.P.C.

8. Per contra, learned High Court Government

Pleader would submit that the complaint averments clearly

disclose committing of offence which is the part of FIR and

in complaint dated 08.12.2016, the complainant has

specifically stated that after the marriage, she was staying

along with her mother-in-law and brother-in-law and both

of them started to harass her. Despite she requested

accused No.1 to take her along with him, but, he did not

heed to her request and they continued harassment. On

08.07.2016, accused No.1 and her in-laws all of them

came to her house and accused No.1 assaulted her at the

instigation of accused No.2 and accused No.3 assaulted the

complainant on her back. Based on the complaint, the

police have registered a case and investigated the matter

and filed the chargesheet. The learned counsel would also

submit that witnesses who have witnessed the said

incident also given statement before the Investigating

Officer and these witnesses are clear with regard to

assaulting the complainant, whether they have assaulted

or not, it is matter of trial. The Court has to look into the

contents of the complaint and statement of witnesses. The

disputed facts cannot be decided in proceedings under

section 482 of Cr.P.C., He would also submit that

Annexure-C can be relied upon before the trial Court and

they can seek for discharge and not for quashing of the

proceedings.

9. Having heard the learned counsel for the

petitioners and the learned High Court Government

Pleader and also the principles laid down in the judgment

referred supra, no doubt, the Hon'ble Apex Court held that

if the complaint does not disclose any offence, then the

Court can exercise power under section 482 of Cr.P.C. It is

further held in the judgments referred supra that Court

also meticulously look into the contents of the complaint

that they are not misusing the power in roping all other

family members in the matrimonial case. No doubt, there

is no dispute with regard to principles referred supra the

Court has to look into the contents of the complaint and

the statement of the witnesses.

10. Admittedly, the complaint which is dated

08.12.2016 wherein a specific allegation is made by the

complainant that when the husband of the complainant

was in abroad and she was staying along with these two

petitioners, she was subjected to harassment. On perusal

of the complaint, it is clear that specific date is also

mentioned in the complaint that on 08.07.2016 she was

subjected to harassment. When she was in her parents

house all of them went to the house of parents and she

was subjected to assault by accused Nos.1 and 3 and

accused No.2 instigated accused No.1 to assault. The

witnesses who have been cited as CW.4 to 6 also in their

statements before the police have reiterated the same.

When such complaint averments disclose the specific

allegation against these petitioners and also statement of

witnesses disclose that she was subjected to assault by

these petitioners and instigated accused No.1 in assaulting

the complainant, this Court cannot sit and appreciate the

factual aspects by exercising power under section 482 of

Cr.P.C., It requires the trial. The mere contention of the

learned counsel for the petitioners that an omnibus

allegation is made against accused Nos.2 and 3 and there

is no specific allegation in the complaint as well as in the

statement of witnesses, cannot be accepted. I have

already noted the contents of the complaint and also the

statement of witnesses. This Court can exercise power

under section 482 of Cr.P.C., when there is no specific

allegation in the complaint and also in the statement of

witnesses. When it amounts to abuse of process and leads

to miscarriage of justice, the power under section 482 of

Cr.P.C., can be exercised. I do not find any such

circumstance in the case on hand and contents of the

complaint as well as statement of witnesses indicate with

regard to committing of alleged offence. Hence, I do not

find any merit in the petition for exercising power under

section 482 of Cr.P.C.

11. In view of the discussion made above, I pass

the following:

ORDER

The petition is rejected.

Sd/-

JUDGE

VNR