Mohammed Waaris S/O Wazeersab vs State Of Karnataka
2022 Latest Caselaw 3 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 3RD DAY OF JANUARY 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.101419/2015


BETWEEN

1.   MOHAMMED WAARIS S/O WAZEERSAB
     AGED ABOUT 35 YEARS,
     OCC : ALUMINIUM CARPENTER,
     R/O : COURT MOHALLA, MILLARPET,
     NEAR THE HOUSE OF ANDHRA BABU BELLARY.

2.   SMT. MAHABOOBEE W/O WAZEERSAB,
     AGED ABOUT 60 YEARS, OCC : HOUSEHOLD WORK,
     R/O : COURT MOHALLA, MILLARPET,
     NEAR THE HOUSE OF ANDHRA BABU BELLARY.

3.   KHAIROON W/O WAZEERSAB
     AGED ABOUT 20 YEARS, OCC : HOUSEHOLD WORK,
     R/O : COURT MOHALLA, MILLARPET,
     NEAR THE HOUSE OF ANDHRA BABU BELLARY.

4.   SIRAJUDDIN S/O WAZEERSAB
     AGED ABOUT 40 YEARS, OCC : HOUSEHOLD WORK,
     R/O : COURT MOHALLA, MILLARPET,
     NEAR THE HOUSE OF ANDHRA BABU BELLARY.

5.   SMT. NOORA W/O SIRAJUDDIN
     AGED ABOUT 35 YEARS, OCC : HOUSEHOLD WORK,
                              2




      R/O : COURT MOHALLA, MILLARPET,
      NEAR THE HOUSE OF ANDHRA BABU BELLARY.
                                          ... PETITIONERS

      (BY SMT SUNITHA P.KALASOOR, ADV.)

AND

1.    STATE OF KARNATAKA
      SHIRAGUPPA POLICE STATION,
      REPRESENTED BY ITS
      STATE PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA
      BENCH DHARWAD.

2.    SMT. AASIYABEE W/O MOHAMMED WAARIS
      AGED ABOUT:29 YEARS, OCC : HOUSEHOLD
      R/O : COURT MOHALLA, MILLARPET,
      NEAR THE HOUSE OF ANDHRABABU BELLARY
      NOW R/O : AT FIRST WARD, NEAR JAMIYA MASJID,
      KUMBAR STREET, AT SIRUGUPPA, DIST : BELLARY.

                                           ... RESPONDENTS

(BY SRI.PRAVEEN K.UPPAR, HCGP FOR RESPONDENT NO.1)
(BY SRI RAJASHEKHAR R.GUNJALLI, ADV.FOR RESPONDENT NO.2)


      THIS PETITION IS FILED UNDER SECTION 482 OF CRIMINAL
PROCEDURE CODE AND PRAYED TO QUASH THE IMPUGNED
ORDER DATED 15/03/2014 PASSED BY THE JMFC SIRUGUPPA IN
PCR NO. 70 OF 2014 FOR TAKING COGNIZANCE AGAINST THE
PETITIONERS FOR THE OFFENCES UNDER SECTIONS 498-A, 323,
504 AND 506 OF IPC AND SECTIONS 3 & 4 OF D.P. ACT.

      THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
                               3




                           ORDER

The petitioners are before this Court calling in question

the proceedings pending before the JMFC, Siruguppa in Crime

No.107/2014 of Siruguppa Police Station invoked for the

offences punishable under Sections 3 and 4 of the Dowry

Prohibition Act, 1961 and Sections 498A, 323, 504 and 506

of IPC.

2. Heard Smt Sunitha P.Kalasoor, learned counsel

appearing for the petitioners, Sri Praveen Uppar, learned

HCGP appearing for the 1st respondent and Sri Rajashekhar

R.Gunjalli, learned counsel appearing for respondent No.2.

3. The complainant is the wife of the first petitioner-

accused No.1. Accused Nos.2, 3, 4 and 5 are the mother-in-

law, sister-in-law, brother-in-law and wife of the brother-in-

law of the family of the 1st accused-husband.

4. The complainant-wife alleging the petitioners of

meting out harassment for the purpose of demand of dowry

registered a private complaint under Section 200 of Cr.P.C.

on 14.05.2014. Since the entire issue now springs from the

complaint, same is extracted below for the purpose of quick

reference.

"That the complainant is the legally wedded wife of the accused No.1 in as much as their marriage had taken place on 18.01.2007 at parents house of complaint at Siruguppa as per caste, customs and rituals prevailing in Mohd. Community. At the time of marriage the parents of the complainant have given a dowry of Rs.1.00 lakh, 10 tola gold and house hold utensils. Immediately after the marriage, the complainant did join the accused no.1 at his house and said marriage was also consummated. The complainant lead happy life for about six years and during this wedlock the complainant gave birth to three children.

That this complainant is the wife of accused No.1, accused No.2 is the mother of accused No.1. The other accused persons are the sisters and brother of accused No.1.

That after the six years of the marital life, the accused No.1 became indifferent and changed his attitude and started to hatred this complainant insisting upon her to bring further dowry of Rs.1.00 lakh from her parents and in continuation of this illegal demand, the accused No.1, his mother and brother have started to ill treat the complainant

subjecting her to all sorts of humiliation by causing assault, abuse and by giving mental harassment. This complainant has protested the illegal demand for dowry on the ground of poverty of her parents and with all this the accused persons did not stop their ill treatment. This complainant lived with the accused persons sustaining all ill treatment as a dutiful loyal wife. Ultimately about six months back the accused persons have picked up quarrel and assaulted the complainant by hurling foul abuses and thereby dragged her away along with her children with dire consequences in case if she fails to bring the aforesaid dowry from her parents. Under the circumstances and having no other go the complainant came to the house of parents and started to reside therein.

With all this the complainant and her parents have been making their efforts for reconciliation but the accused persons have flatly refused to take back the complainant and her children with them and also declined to provide any maintenance and thereby further proclaimed that the accused No.1 will under go second marriage very soon.

That on 09.03.14 all the accused persons came to the house of parents of this complainant and it was about 11 a.m. at that time the complainant was alone in the house. Accused No.1 went inside of

the house and caught hold this complainant and dragged her away by holding her hairs by scolding in foul language. Thereafter all the accused persons surrounded the complainant and assaulted with hands saying that when you have not returned to their house with the aforesaid dowry and during course of assault, the complainant cried for help and on hearing such cry the witnesses cited in the complaint came to the spot and rescued the complainant from the hands of accused persons. Then the accused persons went away threatening the complainant that she will be no more, if she fails to bring the said dowry.

Thereafter this complainant on same day went to the police station at Siruguppa and narrated the incident. The police have assured this complainant to register a case against the accused persons and accordingly this complainant had waited for all these days for the action of the Police, but in vain. Under the circumstances, the complainant is landing before this Court today with this complaint."

5. It is the case of the complainant that the first

accused-husband has meted out certain harassment by

demanding a further dowry of Rs.1,00,000/- from the parents

of the complainant and has continued such harassment both

physically and mentally. Against other members of the family

omnibus statements are made by the wife in the complaint

supra. The only instance narrated in the entire complaint

against all the other accused is that they surrounded the 1st

accused and were a party to such abuse being hurled by the

1st accused. The said complaint is referred to investigation

under Section 156(3) of the Cr.P.C., pursuant to which, the

Police have filed a charge sheet against all the accused.

Column No.17 of the Charge sheet reads as follows:

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ªÀiÁ£À¹PÀ ºÁUÀÆ zÉÊ»PÀ »A¸É ¤ÃrgÀĪÀÅzÀÄ vÀ¤SɬÄAzÀ ¸Á©ÃvÁVgÀÄvÀÛzÉ."

6. A perusal at the charge sheet also would indicate

that the entire investigation and its result, the allegations of

harassment against the husband-accused No.1/petitioner

No.1. Against all the other accused, the charge sheet also

narrates certain omnibus circumstances, there is no overt act

alleged to have been committed by other members of the

family except accused No.1-husband. If the allegations in the

complaint and the charge sheet filed by the Police are read

tandem, it would unmistakably indicate that the allegations

being against the first accused-husband. Omnibus statements

and findings of investigations are against all other accused.

Therefore, the trial if permitted against at all the other

accused i.e., the other members of the family, would lead to

harassment and result in miscarriage of justice.

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

Judgments of the Hon'ble Apex Court in the case of Geeta

Mehrotra and Another vs. State of Uttar Pradesh and

Another, reported in (2012) 10 SCC 741, which is

subsequently followed in the case of Rashmi Chopra vs.

State of Uttar Pradesh and Another, reported in (2019) 15

SCC 357, wherein the Apex Court has delineated such action

of the complainant in dragging other members of the family

into a proceedings where the allegations remain only against

the accused-husband. The Apex Court held as follows :

24. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in Ramesh v. State of Tamil Nadu, (2005) 3 SCC 507 that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in that matter on this aspect were although somewhat different

since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498-A IPC and Sections 3 and 4 of the Dowry Prohibition Act against the appellants who are sister and brother of the complainant's husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.

25. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically

send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well-settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law.

Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

26. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the

ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A, 323, 504, 506 IPC including Sections 3 and 4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.

27. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against

them. But as the contents of the FIR do not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A, 323, 504, 506, IPC and Sections 3 and 4 of the Dowry Prohibition Act.

28. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of respondent No.2- complainant without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings insofar as these appellants are concerned and consequently

the order passed by the High Court shall stand overruled. The appeal accordingly is allowed."

(Emphasis supplied)

8. Later in the case of Rashmi Chopra (supra), the

Hon'ble Apex Court holds as follows :

"18. Learned counsel for the appellant has also relied on various judgments of this Court in support of his submissions. In K. Subba Rao and Others Vs. State of Telangana, (2018) 14 SCC 452, this Court laid down following in paragraph Nos. 5 and 6:-

"5. A perusal of the charge-sheet and the supplementary charge-sheet discloses the fact that the appellants are not the immediate family members of the third respondent/husband. They are the maternal uncles of the third respondent. Except the bald statement that they supported the third respondent who was harassing the second respondent for dowry and that they conspired with the third respondent for taking away his child to the U.S.A., nothing else indicating their involvement in the crime was mentioned. The appellants approached the High Court when the investigation was pending. The charge-sheet and the supplementary charge- sheet were filed after disposal of the case by the High Court.

6. Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of the process of a court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal, 1992 Suppl. (1) SCC

335. 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. (See Kans Raj v. State of Punjab, (2000) 5 SCC 207 and Kailash Chandra Agrawal v. State of U.P., (2014) 16 SCC 551."

24. Coming back to the allegations in the complaint pertaining to Section 498-A and Sections 3 and 4 of the Dowry Prohibition Act. A perusal of the complaint indicates that the allegations against the appellants for the offences under Section 498-A and Sections 3 and 4 of the Dowry Prohibition Act are general and sweeping. No specific incident dates or details of any incident have been mentioned in the complaint. The complaint having been filed after the proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498-A and Sections 3 and 4 of the Dowry Prohibition Act have been filed as counter-blast to divorce petition proceeding in State of Michigan by Nayan Chopra.

      25.   There    being      no    specific   allegation
regarding   any     one   of    the   applicants    except

common general allegation against everyone i.e. "they started harassing the daughter of the applicant demanding additional dowry of one crore" and the fact that all relatives of the husband, namely, father, mother, brother, mother's sister and husband of mother's sister have been roped in clearly indicates that the application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants. Further, prior to filing of the application under Section 156(3) Cr.P.C. there was no complaint at any point of time by the girl or her father making allegation of demand of any dowry by any one of the applicants. When both Nayan Chopra and Vanshika started living separately since November 2013, had there been any dowry demand or harassment the girl would have given complaint to Police or any other authority. Further, in the divorce proceedings at Michigan, U.S.A., parties have agreed for dividing their properties including gifts given at marriage but no complaint was made in those proceedings regarding harassment by her husband or his family members."

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

and the law declared by the Apex Court in the afore extracted

Judgments, the trial against other members of the family

cannot be permitted to be continued, if permitted, would

amount to on abuse of the process of the law. Therefore, it is

a fit case where this Court in exercise of powers under

Section 482 of Cr.P.C. should interfere with the pending

proceedings notwithstanding the fact that the charge sheet is

filed against all other accused and obliterate such

proceedings against the other members of the family-accused

Nos.2 to 5.

10. For the aforesaid reasons the following :

ORDER

i. The Criminal Petition is allowed in part.

pending in PCR No.70/2014 (Crime

No.107/2014 of Siruguppa Police Station)

before the JMFC, Siruguppa stands

obliterated. The proceedings against the first

petitioner-accused No.1 stands sustained. The

trial shall go on against accused No.1-

husband.

iii. The observations made in the course of this

order is only for the purpose of considering

the case against other accused under Section

482 of Cr.P.C., this shall not influence or bind

the trial Court insofar as it concerns the trial

against accused No.1.

iv. Since the proceeding is of the year 2013 and

the charge sheet is filed in the year 2015. The

trial Court before whom the case is pending

shall endeavour to conclude the proceedings

at an outer limit of nine months from the date

of receipt of a copy of this order.

It is needless to observe that both complainant and the

1st accused shall co-operate for conclusion of the

proceedings.

                                                     SD
Ckk                                                JUDGE