Humera Tahseena vs The State Of Karnataka And Ors
2022 Latest Caselaw 1090 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 25TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL PETITION NO.200917/2021


BETWEEN:

HUMERA TAHSEEN
W/O MD.ABDUL QADIR ANSARI,
AGE : 32 YEARS, OCC : DOCTOR,
R/O H.NO.4-601/73E , M.B NAGAR,
SHIVA MANDIR CHOWK,
NEW EXTENSION, KALABURAGI.
                                        ... PETITIONER

(BY SMT.NEEVA M.CHIMKOD, ADVOCATE)


AND:

1. THE STATE OF KARNATAKA
   THROUGH MAHILA PS KALABURAGI
   REP. BY ADDL. SPP.,
   HIGH COURT OF KARNATKA,
   KALABURAGI BENCH

2. MD ABDUL QADIR ANSARI
   S/O ABDUL KHALEEL,
   AGE : 36 YEARS,
   OCC : ASST PROFESSOR,
   WORKING AS BLDE MEDICAL COLLEGE
   DEPT OF ORTHOPEDICS, SOLAPUR ROAD,
   VIJAYPUR.
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3. KHALEEL ANSARI S/O ABDUL RAZAK,
   AGE MAJOR, OCC : RETD. SERVANT,

4. KHADAR ANSARI S/O KHALEEL ANSARI,
   AGE : MAJOR, OCC : ENGINEER,

5. IQBAL BEGUM W/O KHALEEL ANSARI,
   AGE MAJOR, OCC : HOUSEHOLD,

   ALL ARE R/O BEHIND K,N.Z FUNCTION HALL,
   NEAR USMANEEYA MAJJIDA, KALABURAGI.

                                            ... RESPONDENTS

(SRI GURURAJ V.HASILKAR, HCGP R1;
SRI SANJAY KULKARNI, ADVOCATE FOR R2 TO R5)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED
ORDER DATED 05.04.2019 PASSED BY THE III ADDL.
DISTRICT AND SESSIONS JUDGE AT KALABURAGI IN
CRL.R.P.NO.114/2018 AND CONFIRMING THE ORDER
DATED 28.09.2017 PASSED IN C.C.NO.217/2015 ON THE
FILE OF THE II ADDL. JMFC, KALABURGI.

      This petition coming on for Admission this day, the
court made the following :

                         ORDER

Though the matter is listed for admission, with the

consent of parties, it is taken up for final disposal.

2. Heard Smt.Neeva M.Chimkod learned counsel

for the petitioner and Sri Sanjay Kulkarni learned counsel

for respondent Nos.2 to 5 and learned High Court

Government Pleader for respondent No.1/State.

3. The present petition is filed under Section 482

of Cr.P.C with the following prayer :-

"To quash the impugned judgment/order dated 05.04.2019 passed by the III Addl. District and Sessiosn Judge at Kalaburagi in Cr.R.P.No.114/2018 and confirming the order dated 28.09.2017 passed inC.C.No.217/2015 on the file of the II Addl. JMFC, Kalaburagi."

4. Brief facts of the case are as under :-

The petitioner herein married respondent No.2 -

Sri Md.Abdul Quadir Ansari on 21.06.2009 as per the

Muslim customs. Thereafter, petitioner stayed in the

matrimonial house for a brief period and on 04.08.2009

because of the differences in the matrimonial relationship,

the petitioner left the matrimonial house and joined the

parents house.

5. Subsequent thereto, on 08.10.2010 she has

filed a petition under Section 125 of Cr.P.C seeking

maintenance against the second respondent herein.

6. In the said petition, it has been contended that

the second petitioner unilaterally obtained divorce by

pronouncing triple Talaq on 15.08.2010.

7. When the petition filed under Section 125 of

Cr.P.C was being contested by the second respondent

herein, on 14.05.2011 the petitioner herein files a

complaint before the jurisdictional police under Sections

498A, 323 and 506 read with Section 34 of IPC. In the

complaint, it has been contended that on 21.06.2009 the

marriage has taken place and on 12.05.2011 at about 9.30

p.m., the accused persons visited the house of the

complainant and picked-up quarrel and abused the

complainant and also gave her a life threat and therefore

sought for action against respondent Nos.2 to 5.

8. It is also found from the complaint averments

that there was a demand for `10.00 lakhs of cash as dowry

for the purpose of opening a clinic. In the complaint, it is

also mentioned that on account of non-meeting of the said

dowry amount, the complainant was not allowed to join

the matrimonial home.

9. Jurisdictional police after registering the case

in Crime No.54/2011 on 14.05.2011, investigated the

matter in detail and ultimately filed a 'B' report.

10. The copy of the 'B' report was served on the

complainant and she filed protest petition and the learned

Magistrate after recording the sworn statement proceeded

to go ahead with the case. The respondent Nos.2 to 5

herein challenged the said action in the Criminal Petition

No.200430/2015. A Co-ordinate Bench of this court order

dated 11.08.2015 dismissed the petition seeking quashing

of further proceedings before the learned Magistrate.

However, the learned Judge in the Coordinate Bench has

also reserved the liberty for the respondent Nos.2 to 5

herein to file discharge application before the trial court.

Taking advantage of the said observation, the respondent

Nos.2 to 5 herein filed an application seeking discharge.

The said application was contested by the petitioner herein

and learned trial Magistrate by order dated 28.09.2017,

dismissed the application. Being aggrieved by the same,

the respondent Nos.2 to 5 herein filed a revision petition

before the III Addl. District and Sessions Judge, Kalaburagi

in Crl.R.P. No.114/2018.

11. Learned Judge in the first appellate Court in

the revisional court, secured the records and heard the

parties in detail and by order dated 05.04.2019 allowed

the revision petition consequently allowed the discharge

application filed in Crime No.54/2011 of Mahila Police,

Kalaburagi for the offences punishable under

Sections 498A, 506 and 323 read with Section 34 of IPC.

12. Being aggrieved by the same, the petitioner is

are before this court.

13. In the petition following grounds have been

raised :-

x That, the petitioner was lodged a complaint against respondent of No.2 to 5 before the Mahila PS Kalaburagi for offences punishable U/Sec. 323, 498 A, & 506 R/W 34 IPC which is register in crime No. 54/2011. The respondent No. 2 to 5 have managed the police and got filed B final report in respect of above crime but the petitioner filed protest petition and gave her evidence before the II Addl JMFC. And the Hon'ble Court has referred the case for mediation, dissipate of several efforts made by the petitioner the respondent No. 2 to 5 herein could not appear and has not given any response to the mediation.

x That, the learned judge of the Trail Court in Cr.R.P No.114/2018 have wrongly read the sections 239 & 245 of the criminal procedure code 1973. The alleged offences are under section 498A, 323, 504, 506, read with section 34 of IPC mainly section 498A absolutely requires recording the evidence of the parties hence trail is necessary at this stage section 239 & 2455 though are the independent provision will not help to the present case. And the learned the judge of the Trail Court at the earliest stage have opined the petitioner have lodged first information to harass the respondent No. 2 to 5. Hence the order in Cr.R.P No.114/2018 deserved to be quashed by the Hon'ble Court.

x It is submitted that on behalf of the petitioner that, the Court below in casual manner, has passed the order without putting the parties under the trail and without proper judicial application of proper mind since the order in Cr.R.P bad in law as its is contrite to the second position of law.

x In view of any angle the impugned order dated: 05-04-2019 deserves to be quashed and the Trail Court has the consider the

documents available on records and the allegation made in the first information and the evidences has to necessary to record.

x The petitioner have not approached any court of law for the same cause of action and the present impugned order that petitioners have not earlier approached this Hon'ble Court for the same cause of action or for similar relief accept by tiling the present petition.

14. Reiterating the above grounds, learned counsel

for the petitioner Smt.Neeva M.Chimkod vehemently

contended that the learned Judge in the revisional court

has not properly appreciated the material on record and

therefore sought for setting aside the order passed by the

revisional court and restore the criminal proceedings.

15. Per contra, Sri Sanjay Kulkarni learned counsel

appearing for respondent Nos.2 to 5 vehemently

contended that the material placed by the petitioner on

record was hardly sufficient to attract any one of the

offences alleged against respondent Nos.2 to 5 and the

same has been properly appreciated by the revisional court

and rightly discharged the accused persons from the case

and sought for dismissal of the petition.

16. Learned High Court Government Pleader for

respondent No.1/State contended that the police after

thorough investigation has found that the allegations made

in the complaint were far from truth and therefore rightly

filed 'B' report and therefore State is not perusing the

matter further and it is only a formal party.

17. In view of the rival contentions this court

perused the material evidence on record.

18. In the case on hand, the marriage between the

petitioner and the second respondent took place on

21.06.2009 as per Muslim customs. However, on account

of the acute differences in the matrimonial life, it is an

admitted fact, that the petitioner herein left the

matrimonial home on 04.08.2009.

19. In the meantime, second respondent having

failed to re-establish the matrimonial relationship,

approached the Wakf Board and applied for divorce which

has been considered by the Wakf Board and passed an

order of divorce dated 15.08.2010. The said order is not

challenged by the petitioner herein. Thereafter, she filed a

petition under Section 125 of Cr.P.C seeking maintenance

on 08.10.2010. The learned Magistrate after hearing the

parties on 24.08.2011 allowed the petition and granted

maintenance of `5,000/- per month as the monthly

maintenance which is being paid by the second respondent

herein. Subsequent thereto, an application came to be filed

under Section 127 of Cr.P.C wherein a joint memo was

filed stating that since the petitioner is now earning, she

need bit ckaun maintenance any longer from the second

respondent. When the matter stood thus, on 14.05.2011 a

complaint came to be filed by the petitioner herein

contending that the respondent Nos.2 to 5 have visited her

and picked up the quarrel and abused her in filthy

language and assaulted and therefore sought for action.

The jurisdictional police i.e., Mahila Police, Kalaburagi

registered a case against respondent Nos.2 to 5 herein in

Crime No.54/2011 on 14.05.2011 for the offences

punishable under Sections 323, 498A and 506 read with

Section 34 of IPC. After thorough investigation, police

found that the complaint averments are incorrect and false

and therefore filed a 'B' report.

20. Being not satisfied with the filing of 'B' report,

the petitioner herein filed a protest petition and learned

trial Magistrate after recording the sworn statement,

proceeded to reject the 'B' report and proceeded with the

trial. At that juncture, respondent Nos.2 to 5 approached

this court in Crl.P.No.200430/2015 wherein this court

dismissed the petition by passing the following order :-

"Petition is dismissed.

Notwithstanding the dismissal of the petition, the petitioners are at liberty to request the Court to discharge them, if they have sufficient materials to place on record at the time of conducting a trial before charge. Since the case has been registered otherwise than on a police report.

In such an event, the learned Judge to dispose of the matter at the earliest without undue delay."

21. Thereafter, the respondent Nos.2 to 5 filed

application seeking discharge. The said application was

opposed by the petitioner herein. The II Addl. Civil Judge

and JMFC after hearing the parties by order dated

28.09.2017 dismissed the application filed by respondent

Nos.2 to 5 under Sections 239 and 245 of Cr.P.C seeking

discharge of respondent nos.2 to 5.

22. Thereafter, respondent Nos.2 to 5 filed a

revision petition before the II Addl. District and Sessions

Judge, Kalaburagi in Crl.R.P.No.114/2018. The learned

Judge in the revisional court, considered the rival

contentions and placing reliance on the judgment of the

Hon'ble Apex Court in the case of P.Vjayan vs. State of

Kerala reported in AIR 2010 SC 663 allowed the revision

petition.

23. The learned Judge in the revisional court has

also considered the spirit of Sections 245 and 239 of

Cr.P.C in exercising the power to discharge the accused in

a given case.

24. In Para 21 of the impugned order it has been

held as under :-

"21. At this stage, it is worth and useful to

refer the following judgment :

AIR 010 SC 663 [P.Vijayan Vs. State of Kerala and another] the Hon'ble Apex held that : "That words not sufficient ground for proceedings against the accused" clearly show that judge is not a mere Post Officer to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to fact of case in order to determine by prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which exfacie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

25. This court meticulously considered the material

evidence on record in the light of the grounds urged in the

petition.

26. It is an admitted fact that the petitioner herein

stayed in the matrimonial home only from 21.06.2009 to

04.08.2009. Thereafter, she came back and started living

in the parental house and when she filed an application

seeking grant of maintenance under Section 125 of Cr.P.C

on 08.10.2010 there is no whisper that the respondent

Nos.2 to 5 have harassed her and there was a demand of

dowry. Only on 14.05.2011 she has chosen to file the

complaint.

27. Police after thorough investigation, recorded a

categorical finding that the allegations made in the

complaint lodged by the petitioner herein on 14.05.2011 is

false and no case is made out to proceed further in the

case and filed 'B' report. No doubt after recording the

sworn statement, learned trial Magistrate took cognizance

and directed the petitioner to prove the case.

28. From the material available on record, when

the petitioner herein has not filed ay complaint soon after

leaving the matrimonial home about the alleged dowry

harassment, she has chosen to file complaint only on

14.05.2011 exposes the hollowness in the complaint

averments. The inordinate delay from 04.08.2009 to

14.05.2011 is not even explained and the learned trial

Magistrate has not even taken that aspect of the matter

into consideration while accepting the protest petition and

proceeded with the trial of the case. The learned

Magistrate also failed to take note of the said aspect of the

mater when the application seeking discharge was filed by

respondent Nos.2 to 5 herein. The same has been rightly

re-appreciated by the learned Judge in the revisional court

keeping in background the letter and spirit of the powers

vested in the court under Sections 239 and 245 of Cr.P.C

and rightly discharged respondent No.2 to 5 herein.

29. For the forgoing discussions and having regard

to the non explanation of delay from 04.08.2009 to

14.05.2011 in filing the complaint about the alleged dowry

harassment, this court is of the considered opinion that no

case is made out by the petitioner to set aside the just

order passed by the revisional court. Hence, the following

ORDER

Revision petition is dismissed.

Sd/-

JUDGE

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