Karnataka High Court

Khansab S/O Mabusab Peerkhanavar vs The State Of Karnataka on 16 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 16TH DAY OF FEBRUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

              CRIMINAL PETITION NO.102050/2018

BETWEEN:

1.   KHANSAB
     S/O MABUSAB PEERKHANAVAR
     AGE: 50 YEARS,
     OCC: CONTROLLER, KSRTC,
     R/O: ASHRAYA COLONY,
     SATTUR, DHARWAD.

2.   AKBARSAB
     S/O. MABUSAB PEERKHANAVAR
     AGE: 48 YEARS, OCC: AGRICULTURE,
     R/O: HEBSUR, TQ: HUBBALLI,
     DIST: DHARWAD.

3.   FATIMA
     W/O AKBARSAB PEERKHANAVAR
     AGE: 36 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: HEBSUR, TQ: HUBBALLI,
     DIST: DHARWAD.

4.   MARIMBI
     W/O MABUSAB PEERKHANAVAR
     AGE: 70 YEARS,
     OCC: HOUSEHOLD WORK,
     R/O: HEBSUR, TQ: HUBBALLI,
     DIST: DHARWAD.

5.   SALEEMA
     W/O KHANSAB PEERKHANAVAR
     AGE: 40 YEARS,
                               2




     OCC: HOUSEHOLD WORK,
     R/O: ASHRAYA COLONY,
     SATTUR, DHARWAD.

                                            ...PETITIONERS.

(BY SHRI PRASHANT S KADADEVAR, ADVOCATE.)


AND:

1.   THE STATE OF KARNATAKA
     REP. BY ITS STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA
     DHARWAD BENCH,
     THROUGH ITS DHARWAD WOMEN P.S.

2.   RAJABI @ ASHIYA
     W/O SAIDUSAB PEERKHAONAVAR,
     AGE: 23 YEARS, OCC: COOLIE,
     R/O: HEBASUR, TQ: HUBBALLI,
     NOW AT ANNIGERI,
     OLD AMRUTESHWAR NAGAR,
     TQ: NAVALGUND, DIST: DHARWAD.

                                            ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1;
R.2 - NOTICE SERVED.)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ENTIRE PROCEEDINGS IN C.C.NO.455/2018 (CRIME NO.8/2017) ON
THE FILE OF THE JMFC II COURT, HUBBALLI, FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 498A, 323, 504, 506 READ WITH
SECTION 34 OF THE INDIAN PENAL CODE, 1860, INSOFAR AS
PETITIONERS HEREIN ARE CONCERNED, ETC.,.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:
                                  3




                              ORDER

The petitioners are before this Court calling in question

the proceedings in C.C.No.455/2018, pending on the file of

JMFC II Court, Hubballi, registered for the offences punishable

under Sections 498A, 323, 504, 506 read with Section 34 of the

Indian Penal Code, 1860.

2. Heard Shri Prashant S. Kadadevar, the learned

counsel appearing for the petitioners and Shri Ramesh Chigar,

the learned HCGP appearing for the respondent no.1 State.

3. The relationship between the complainant/2nd

respondent herein and the petitioners are as follows. The

petitioner no.1 who is accused no.2 is the brother of accused

no.1 husband of the complainant. The 2nd petitioner who is

accused no.3 is again the brother of accused no.1 the husband.

The petitioner no.3 who is accused no.4 is the wife of the 2nd

petitioner. The petitioner no.4 who is accused no.5 is the

mother-in-law of the complainant. Petitioner no.5 who is

accused no.6 is the wife of the 2nd petitioner.

4. The marriage between the complainant and accused

No.1-husband takes place in the year 2011. The accused No.1-

husband is not before this Court. The relationship of the

petitioners is as described hereinabove. It transpires that the

relationship between the husband and the complainant became

irretrievably sore. Alleging certain instances of torture, the

complainant registers a complaint against the petitioners and

the husband for offences punishable under Sections 143, 147,

323, 498A and 149 of the IPC. The police, after investigation

have filed the charge sheet, wherein Sections 143, 147 and 149

of the IPC are given up and Section 504, 506 and 34 of the IPC

are added along with Sections 323 and 498A of the IPC. It is at

this juncture, the petitioners have knocked the doors of this

Court, in the subject petition.

5. The learned counsel appearing for the petitioners

would submit that there are no allegations made against the

petitioners either in the complaint or in the final report that is

filed by the police after investigation. According to the learned

counsel, the complainant began to live separately in the year

2014 itself, but registers the complaint in the year 2017 for

offences punishable under Section 498A of the IPC. This

according to the learned counsel would demonstrate the

intention of the complainant being only to harass the members

of the family. It is his further submission that petitioners 1 and

5 never stayed with the couple at any point in time.

6. I have given my anxious consideration to the

submissions made by the learned counsel and have perused the

material on record.

7. The afore-narrated events are not in dispute. It is

the case of the complainant herself in the complaint that she

began to live separately in the year 2014, but has registered the

complaint in the year 2017. According to the complaint, the

narration of incidents is what has happened in the year 2015.

The complainant alleges that the husband - accused No.1 has

remarried in the year 2015 and the proceedings of that

remarriage is pending consideration before the competent Court

at Navalgund. Since the entire issue in the present case springs

from the complaint, the same is extracted for the purpose of

quick reference:

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J®ègÀÆ ºÉÃ§¸ÀÆgÀ UÁæªÀÄzÀªÀgÀÄ vÁ®ÆèPÀ ºÀÄ§â½î.

8. A perusal at the complaint would indicate that the

allegations in the complaint are only against the husband. Stray

sentences of torture by the petitioners herein are also narrated

in the complaint without specifically narrating any overtact by

the petitioners or any other member of the family. The primary

grievance of the complainant in terms of the complaint is

against the husband for him getting remarried without the

knowledge of the complainant. The police after investigation

have filed the charge sheet. The summary of the charge sheet

as found in column no.17 reads as follows:

PÉÃ¹£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À:

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9. A perusal at the summary of the charge sheet also

indicates no act of the petitioners for continuing the trial against

them for the offences punishable under Sections 498A, 323 or

143, 147 of the IPC. Here again the result of investigation is

against the husband and the case being registered for

dissolution of marriage. Therefore, the petitioners, particularly

petitioners no.1 and 5 who did not even reside with the couple

are dragged into these proceedings and there is no overtact that

is narrated in the complaint or in the summary of the charge

sheet against them. In the light of the complaint and the

investigation not indicating any overt act that would touch upon

the offence under Section 498A, 323 of IPC, permitting the

further proceedings to continue against the petitioners would

result in miscarriage of justice. The view of mine in this regard

is fortified by the latest judgment of the Apex Court in the case

Shafiya Khan alias Shakuntala Prajapati, reported in 2022

SCC onLine SC 167, has held as follows:

"11. Counsel further submits that there is no iota of evidence to support what is alleged in the complaint by respondent no.2 on the basis of which FIR has been registered and even if what is being stated in the FIR is taken on its face value, prima facie, none of the offences which have been levelled against the appellant in the charge-sheet are made out. In the given circumstances, if the criminal proceedings at this stage are allowed to continue against her, it will be nothing but a clear abuse of the process of law and a mental harassment to the appellant, more so, when she has not only to sustain her employment, but being the only bread winner of her family, she has to take care of her

minor son also and further submits that the High Court has not even looked into the prima facie allegations levelled in the FIR on the basis of which charge-sheet came to be filed and just after quoting certain passages from the judgments of this Court, dismissed the petition preferred at her instance under Section 482 Cr.PC.

12. Counsel submits that the principles have been well laid down by this Court in State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335, and which have been consistently followed in the later years and taking the test as laid down by this Court, what being alleged in the complaint on the basis of which FIR has been registered, even if prima facie taken into consideration, no offence is made out of the kind levelled against her. In the given circumstances, the present proceedings initiated against the appellant deserve to be quashed and set aside being an abuse of the process of law.

13. Counsel for the State and the counsel for the complainant jointly submit that after the FIR was registered, investigation was made and only thereafter the charge-sheet was filed. It can at least be presumed that a prima facie case against her is made out. The High Court has appreciated the material available on record and found no reason to interfere in its inherent jurisdiction under Section 482 Cr.PC and the impugned judgment needs no further interference of this Court.

14. We have heard learned counsel for the parties and perused the material available on record.

15. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent

power under Section 482 Cr.PC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana v. Bhajan Lal (supra) as under:

"102. 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 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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate

within the purview of Section 155(2) of the Code.

(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) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (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."

16. The principles laid down by this Court have consistently been followed, as well as in the

recent judgment of three Judge judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, AIR 2021 SC 1918.

      17. It is no doubt true that the power of
quashing of criminal proceedings        should      be
exercised      very       sparingly     and       with

circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies.

18. Adverting to the facts of the instant case, there was no material placed on record by the complainant to justify the bald allegations which were made in the complaint on the basis of which FIR was registered. There are undisputed facts on record that the appellant's marriage was solemnized with late Mohd. Shameem Khan on 11th December, 2016 and from this wed-lock, a male child was born on 23rd September, 2017 and her husband untimely passed away on 8th December, 2017 and until their period of matrimonial relationship, no complaint of any kind was ever made by her late husband (Mohd. Shameem Khan) and after she was paid his terminal benefits and got a compassionate appointment in his place as an A.N.M. by an order dated 19th May, 2018 w.e.f. 28th April, 2018, all sort of issues were raised by the complainant (brother of her deceased husband) of making such false allegations with reference to her marriage and also for the terminal benefits which she received and there was not even prima facie foundation to support the nature of allegations which were made.

19. Although it is true that it was not open for the Court to embark upon any enquiry as to the reliability or genuineness of the allegations made in

the FIR, but at least there has to be some factual supporting material for what has been alleged in the FIR which is completely missing in the present case and documentary evidence on record clearly supports that her Nikah Nama was duly registered and issued by competent authority and even the charge sheet filed against her does not prima facie discloses how the marriage certificate was forged.

20. In the given circumstances and going through the complaint on the basis of which FIR was registered and other material placed on record, we are of the considered view that no offence of any kind as has been alleged in the FIR, has been made out against the appellant and if we allow the criminal proceedings to continue, it will be nothing but a clear abuse of the process of law and will be a mental trauma to the appellant which has been completely overlooked by the High Court while dismissing the petition filed at her instance under Section 482 Cr.PC."

21. Consequently, the appeal is allowed. The criminal proceedings initiated against the appellant in reference to FIR No.0227 of 2019 dated 9th July 2019 under Sections 494, 495, 416, 420, 504 & 506 IPC lodged at PS Bazar Khala, District Lucknow, U.P. are hereby quashed and set aside.

22. Pending application(s), if any, stand disposed of.

10. In the light of the facts obtaining in the case at hand

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

judgment, I deem it appropriate to obliterate the proceedings

against the petitioners for the aforesaid offences.

11. For the aforesaid reasons, the following:

ORDER

i) The criminal petition is allowed.

ii) The proceedings in C.C.No.455/2018,

pending on the file of JMFC II Court, Hubballi,

stands quashed, qua the petitioners.

iii) It is made clear that the observations made