Karnataka High Court

T Ganesh S/O. Late Mareppa vs The State Of Karnataka on 9 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 9TH DAY OF FEBRUARY 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

              CRIMINAL PETITION NO.101751/2021

BETWEEN

1.    T GANESH S/O. LATE MAREPPA,
      AGE 59 : YEARS, OCC: WORKING AT KEB OFFICE,
      NEAR OLD MUNICIPALITY BESIDE BSNL OFFICE,
      R/O RUPANGUDI ROAD, GONAL VILLAGE,
      KRISHNA COLONY, BALLARI TQ. AND DIST-583201.

2.    MR. MURALI S/O T. GANESH,
      AGE 29 YEARS, OCC: WORKING MINING COMPANY AS
      ENGINEER, R/O RUPANGUDI ROAD, GONAL VILLAGE,
      KRISHNA COLONY,BALLARI TQ. AND DIST-583201.

      CORRECT ADDRESS
      MURALI S/O GANESH,
      OCC: ASST. MINES MANAGER,
      R/O N.C. COLONY, NEAR ASHWINI EYE HOSPITAL,
      SANDUR ROAD, HOSAPETE,
      VIJAYANAGAR DIST. 583201.

                                                 ...PETITIONERS

(BY SRI. J. BASAVARAJ, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      REPRESENTED BY ITS
      STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA,
      DHARWAD-580011.
                               2




2.   SMT. VIJAYA PARAMESHWARI W/O MR. T. CHAKRADHAR
     D/O V. RAMANJINEYULU
     AGE : 29 YEARS, OCC: HOUSEWIFE,
     R/O RAJESWARI NAGAR, BESIDE MR. SRI. RAMULU HOUSE,
     SIRUGUPPA ROAD, NEAR WELCOME GATE,
     BALLARI TQ. AND DIST-583201.

3.   MINOR KARTHIKEYA S/O SMT. VIJAYA PARAMESHWARI
     AND MR. T. CHAKRADHAR,
     SINCE MINOR 2 YEARS AND 3 MONTHS
     IN THE CARE AND CUSTODY OF
     NATURAL GUARDIAN MOTHER SMT. VIJAYA PARAMESHWARI.

     BOTH R.2 AND 3 ARE
     R/O RAJESWARI NAGAR,
     BESIDE MR. SRI. RAMULU HOUSE,
     SIRUGUPPA ROAD,
     NEAR WELCOME GATE,
     BALLARI TQ. AND DIST-583201.

                                              ....RESPONDENTS

(BY SRI RAMESH CHIGARI, HCGP FOR R1 &
SRI S N BANAKAR, ADVOCATE FOR R2)



     THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,

SEEKING TO QUASH THE PETITION IN CRL.MISC.NO.396/2020, THE

ORDER OF ISSUANCE OF NOTICE DATED 09.09.2020 AND ALL

FURTHER PROCEEDINGS PURSUANT THERETO PENDING ON THE FILE

OF II ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI DISTRICT.



     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE

COURT MADE THE FOLLOWING:
                                   3




                                ORDER

The petitioners are before this Court calling in

question the proceedings in Criminal Miscellaneous No.396 of

2020 instituted by the 2nd respondent invoking the

provisions of the Protection of the Women from Domestic

Violence Act, 2005 ('the Act' for short).

2. Heard Sri.J.Basavaraj, learned counsel for the

petitioners and Sri.Ramesh Chigari, learned HCGP for the

respondent-State.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as follows:

The 2nd respondent is the wife of one

T.Chakradhara who is not before this Court. The 1st

petitioner is the father-in-law of the 2nd respondent and the

2nd petitioner is the brother-in-law of the 2nd respondent.

The 2nd respondent and accused No.1/T.Chakradhar got

married on 9-12-2016. From out of the wedlock the 2nd

respondent and accused No.1 have a child. On the

relationship between the 1st accused and the 2nd respondent

turning soar the 2nd respondent/wife instituted several

proceedings, two of them are registration of crimes for

offences punishable under Sections 498A, 504, 323, 506 r/w

34 of the IPC and under Sections 3 and 4 of the Dowry

Prohibition Act. During the pendency of the said proceedings

on 23-05-2020 the 1st accused causes a legal notice upon

the 2nd respondent seeking annulment of marriage. In

furtherance thereto 1st accused also lodges a petition under

Section 13(1) (i-a) and (i-b) of the Hindu Marriage Act, 1956.

The Family Court issues notice and the same reaches the

complainant/2nd respondent on 17.08.2020. Immediately

thereafter on 3-09-2020 the 2nd respondent filed the subject

proceedings against the petitioners under Section 12 of the

Act. The Court on issuing the notice on 9-09-2020 has driven

the petitioners to this Court in the subject petition.

4. The learned counsel appearing for the

petitioners would submit that the 2nd

respondent/complainant is resorting to arm-twisting tactics

and registers the complaint under the Act as a counter-blast

that too against the petitioners who are the father-in-law and

brother-in-law respectively of the 2nd respondent. Both the

petitioners have no role to place in the alleged domestic

violence and, therefore, continuance of further proceedings

against them would be an abuse of process of law.

5. On the other hand, the learned counsel

representing the 2nd respondent would vehemently refute

the submissions and contends that the criminal petition itself

is not maintainable as the petitioners ought to have availed

the remedy of filing an appeal under Section 29 of the Act.

Even on merits of the matter he would contend that all of

them have generated such violence against the complainant

which compelled her to live separately being unable to bear

the torture and would seek dismissal of the criminal petition

on both the aforesaid grounds. The learned counsel places

reliance upon a judgment of the coordinate Bench of this

Court in OLIVER MENEZES v. MRS. SERITA THERESE

MATHIAS - 2021 (3) KCCR 2478 in support of his submission

with regard to filing the appeal under the Act.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. In the light of the submissions made by the

learned counsel representing the 2nd respondent that the

criminal petition is not maintainable in law, on the ground of

availability of alternative remedy, I deem it appropriate to

consider the said issue at the outset. Section 29 of the Act

reads as follows:

"29. Appeal.-There shall lie an

appeal to the Court of Session within thirty

days from the date on which the order

made by the Magistrate is served on the

aggrieved person or the respondent, as

the case may be, whichever is later."

No doubt Section 29 of the Act provides for filing of an appeal

by the aggrieved person against any order passed in a

criminal miscellaneous petition, the said appeal remedy is not

available to the petitioners in the case at hand as the

petitioners do not call in question any particular order that is

passed but the entire proceedings initiated by the 2nd

respondent invoking the inherent jurisdiction of this Court

under Section 482 of the Cr.P.C.

8. It is trite law that a Court conferred with

inherent jurisdiction is not precluded from taking up an issue

against which a statutory remedy of appeal is available.

Dismissing a petition to avail of an alternate remedy is self-

imposed restriction by the High Court while exercising its

jurisdiction either under Article 226 of the Constitution of

India or under Section 482 of the Cr.P.C. as both are inherent

jurisdictions. Therefore, the statutory remedy of appeal

cannot be seen to control exercise of inherent jurisdiction

under Article 226 of the Constitution or under Section 482 of

the Cr.P.C. The said submission of the learned counsel

appearing for the 2nd respondent under the circumstances

stands repelled.

9. Insofar as the order passed by the co-

ordinate Bench, the same is distinguishable without much

ado as the Court was considering two independent orders

passed under Sections 21 and 23 of the Act. It was those

orders that were called in question in the criminal petition

under Section 482 of the Cr.P.C. The order was passed in the

facts obtaining in the case therein which are not the facts

obtaining in the case at hand. Even otherwise Section 482 of

the Cr.P.C. cannot be stonewalled by the availability of

statutory appeal. Neither the submission of an alternative,

efficacious or statutory remedy nor the order passed by the

coordinate Bench supra lend any support to the submissions

of the learned counsel for the 2nd respondent. Therefore, I

deem it appropriate to consider the issue on merits of the

matter.

10. On merits, it is not in dispute that the 1st

petitioner is the father-in-law and the 2nd petitioner is the

brother-in-law of the 2nd respondent. A complaint is

registered under the Act by the 2nd respondent in its

prescribed form. The narration in the complaint is as follows:

"The cause of action for the petition arose on the date of marriage of the Petitioner No.1 with respondent no.1 on 09-12-

                 2016,        further          arose     when
                 Petitioner     No.1       was       inhumanly
                 cruelly,      ill-treated,          harassed,

tortured for additional dowry, arose on taking of taking of dowry in form of cash and gold, further arose when the petitioner no.1 was subjected to mental and physical threat and was forced to resign from her job by the threat of Respondents on 08-01-2018,

further arose when the Petitioner No 2 was born on 17-08-2018 and further arose when the Petitioners were cruelly, willfully deserted by the Respondent at the instigation of his family members, further arose on the dates of panchayaths, conciliations, and mediations held to resolve the marital dispute in September 2018 July 2019 when the petitioner no 2 suffered Dengue, further arose in March & April 2020 when the panchayath was held and the respondent demanded the petitioner no.1 to give divorce to him and refused to receive the petitioners and in the marital home and further arose when the respondent no 1 with an intention to get rid of the petitioner no 1 and to marry another lady for fat dowry deserted, neglected and refused to have marital relationship and accept the petitioner no 1 as his wife, further arose when the police have registered an FIR bearing Crime No.112/2020 on 16-

08-2020 against the respondent his father and brother for the offences under Sec 498A, 504, 323, 506, r/w. sec. 34 of IPC r/w Sec. 3 & 4 of Dowry Prohibition Act, and further arose when the respondent no 1 is refusing to maintain and pay maintenance to the petitioners and further the respondents are refusing to give the 10 tolas of gold worth Rs.6 lakhs and refusing to give the dowry of Rs.5 laksh, household articles and saris and personal. belongings, educational records of the petitioner no.1, and the same is continuing one within the jurisdiction of the Hon'ble Court"

The allegation of the 2nd respondent/complainant in its

entirety is against her husband who is not before this Court.

There is not even a whisper about the father-in-law and the

brother-in-law and their involvement in the alleged domestic

violence. The names of the husband and mother-in-law did

figure. Therefore, the 2nd respondent appears to have

dragged the petitioners into the web of this penal proceeding

without any rhyme or reason. In the teeth of the afore-

extracted complaint of the 2nd respondent while invoking the

provisions of the Act and there being no allegation against

the petitioners, permitting further proceedings to continue

against the petitioners would, without doubt, result in

miscarriage of justice and becomes an abuse of the process

of law. The view of my mine in this regard is fortified by the

latest judgment rendered by the Apex Court on 8-02-2022 in

the case of KAHKASHAN KAUSAR @ SONAM AND

OTHERS v. STATE OF BIHAR AND OTHERS - Criminal

Appeal No.195 of 2022 wherein the Apex Court has

considered the entire spectrum of law albeit while considering

the allegation under Section 498A of the IPC as under:

"11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in

the nature of general omnibus allegations and therefore liable to be quashed?

12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a 3.

(1999) 3 SCC 259 7 greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.

13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr.4 , has observed:-

"14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his

relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement."

14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs.

State of Bihar and Anr.5 , it was also observed:-

"4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested."

15. Further in Preeti Gupta & Anr.

Vs. State of Jharkhand & Anr.6 , it has also been observed:-

"32. It is a matter of common experience that most of these

complaints under section 498A 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 are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber 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 498A 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 fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

35. 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 complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations 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 complaint are required to be scrutinized with great care and circumspection.

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 amicable settlement altogether. The process of suffering is extremely long and painful."

16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr. , it was observed:-

"21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result

that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case.

There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes."

17. Recently, in K. Subba Rao v. The State of Telangana, it was also observed that:-

"6. 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."

18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the

Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against 12 either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.

20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that

the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is 13 distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.

21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in- laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.

22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the

accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

11. In the light of the facts obtaining in the

case at hand and the complaint not narrating even whisper of

allegation against the petitioners, in particular, any overt-act

or harassment towards the 2nd respondent and in the light of

the law laid down by the Apex Court in the afore-extracted

judgment, I deem it appropriate to obliterate the proceedings

against the petitioners.

12. For the aforesaid reasons, I pass the

following: