Miss Mouna K L vs State Of Karnataka
2022 Latest Caselaw 10600 Kant

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                                                          CRL.P No. 8608 of 2021


                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 11TH DAY OF JULY, 2022

                                               BEFORE
                             THE HON'BLE MR JUSTICE M.NAGAPRASANNA
                                CRIMINAL PETITION NO. 8608 OF 2021
                      BETWEEN:

                      1.    MISS.MOUNA K.L.,
                            DAUGHTER OF LAVAKUMAR
                            AGED ABOUT 25 YEARS
                            RESIDING AT NO.109
                            DOUBLE ROAD, ESHWARI LAYOUT
                            INDIRANAGARA
                            BENGALURU - 560 038.

                                                                   ...PETITIONER

                      (BY SRI. JNANESH KUMAR K., ADVOCATE)

                      AND:

                      1.    STATE OF KARNATAKA
                            BY AMRUTHALLI POLICE STATION
                            REP. BY STATE PUBLIC PROSECUTOR
Digitally signed by         HIGH COURT BUILDING
PADMAVATHI B K
Location: HIGH
                            BENGALURU - 560 001.
COURT OF
KARNATAKA
                      2.    SMT.SUPRIYA B.S.,
                            WIFE OF DEMPSY KUSHALAPPA
                            AGED ABOUT 27 YEARS

                            RESIDING AT NO.402
                            NARAYANA GARUDA ENCLAVE
                            PLOT NO.101, 3RD MAIN
                            PID NO.: 5-1-101, MALLESHWARAM
                            BENGALURU - 560 003.
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                                           CRL.P No. 8608 of 2021


                                                  ...RESPONDENTS

(BY SRI.K.S.ABHIJITH, HCGP FOR R1;
    SRI JOSE SEBASTIAN., ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET
NO.22/2021   FILED   AGAINST    THE   PETITIONER  AND
PROCEEDINGS IN C.C.NO.18366/2021 IN CR.NO.22/2021
PENDING ON THE FILE OF THE HONBLE VII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE BENGALURU FOR AN OFFENCE
P/U/S.498-A R/W SEC.34 OF IPC AND SEC.4 OF DOWRY
PROHIBITION ACT.


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

                             ORDER

The petitioner is before this Court calling in question

proceedings in C.C.No.18366 of 2021 pending before the VII

Additional Chief Metropolitan Magistrate, Bengaluru arising out

of Crime No.22 of 2021 registered for offences punishable

under Sections 498A r/w Section 34 of the IPC and Section 4 of

the Dowry Prohibition Act, 1961 ('the Act' for short).

2. Heard Sri Jnanesh Kumar K., learned counsel

appearing for the petitioner, Sri K.S.Abhijith, learned High

Court Government Pleader for respondent No.1 and Sri Jose

Sebastian, learned counsel for respondent No.2.

CRL.P No. 8608 of 2021

3. Facts as projected by the prosecution are as follows:-

The 2nd respondent is the complainant, wife of one

Dempsy Kushalappa. The 2nd respondent and Dempsy

Kushalappa got married on 12-05-2017 and had developed

certain animosity among themselves which led the complainant

to register a crime against the husband and other members of

the family in Crime No.22 of 2021 for offences punishable

under Sections 498A, 323, 504, 506 and 34 of the IPC and

Sections 3 and 4 of the Act. The present lis does not concern

the dispute between the wife and husband and other members

of the family. The petitioner is arrayed as accused No.5 in the

said crime. The allegation against the petitioner in the

complaint is that she is the girl friend/concubine/paramour of

the husband and as such, the husband is torturing the wife. FIR

so registered ends up in Police filing a charge sheet against the

petitioner and the husband and all other members of his family

for offences punishable under Section 498A r/w Section 34 of

the IPC and Section 4 of the Act. Filing of the final

report/charge sheet against the petitioner as well, drives the

petitioner to this Court in the subject petition.

CRL.P No. 8608 of 2021

4. The learned counsel appearing for the petitioner would

contend with vehemence that the petitioner is not a relative

and would not come within the meaning of a 'relative' as

ascribed under Section 498A of the IPC. Being a girl friend of

the husband, she cannot be dragged into the proceedings in a

dispute between the husband and the wife and seeks quashing

of proceedings insofar as it concerns the petitioner.

5. On the other hand, the learned counsel representing

the 2nd respondent would refute the submissions to contend

that the petitioner may be a girl friend or even a paramour of

the husband of the complainant, but she is the main reason for

the behavior of the husband meeting out torture against the

complainant and would submit that since the Police have filed

the charge sheet, no interference at this juncture is called for,

as it would be a matter of trial for the petitioner to come out

clean along with others.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

CRL.P No. 8608 of 2021

7. The afore-narrated facts are not in dispute. The

relationship between the petitioner and the 2nd respondent/

complainant is not the one of a relative. The allegation in the

complaint is that the husband of the complainant has

adulterous relationship with the petitioner. Several allegations

against the husband and the members of the family are made

which does not concern the issue that is brought before this

Court. The issue would be whether the petitioner being a girl

friend/paramour can be hauled into criminal proceedings for

offences punishable under Sections 494A of the IPC. The issue

need not detain this Court for long or delve deep into the

matter as it is no longer res integra. The Apex Court in the case

of U.SUVETHA v. STATE1 has held as follows:

"Leave granted. Whether the term "relative of husband of a woman" within the meaning of Section 498-A of the Penal Code should be given an extended meaning is the question involved herein.

4. In the first information report except at one place the appellant has been described by the first informant as "girlfriend" of her husband and only at the end the word "concubine" has been used. The core question which arises for consideration is as to whether the "girlfriend" would be a "relative of husband of a woman" in terms of Section 498-A of the Penal Code.

5. Section 498-A of the Penal Code reads as under:

(2009) 6 SCC 757

CRL.P No. 8608 of 2021

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purposes of this section, 'cruelty' means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

The aforementioned provision Section 498-A was inserted in the Penal Code by reason of the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983). The Statement of Objects and Reasons thereof reads as under:

"The increasing number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the working of the Dowry Prohibition Act, 1961. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore, proposed to amend the Penal Code, 1860, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married woman by their in-laws."

6. The High Court opined that the words "paramour" and "concubine" stand on the same footing. In arriving at the said opinion, it agreed with the decision of a Division Bench of the Andhra

CRL.P No. 8608 of 2021

Pradesh High Court in Vungarala Yedukondalu v. State of A.P. [1988 Cri LJ 1538 (AP)] and differed with the decision of the Bombay High Court, to opine:

"The term 'relative' has not been defined in the Penal Code and in the absence of any such definition, we have to go by the precedents. Assuming that the allegations made against the petitioner viz. that she is the concubine of A-1 is true, then, it is to be held that there is a living relationship between the petitioner and A-1 in the case and there are specific allegations to the fact that only at the instigation of the revision petitioner, A-1 is harassing the second respondent and as such this Court is of the considered view that a charge under Section 498-A IPC among other offence has also been rightly framed against the revision petitioner."

7. Ingredients of Section 498-A of the Penal Code are:

(a) The woman must be married;

(b) She must be subjected to cruelty or harassment; and

(c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

... ... ... ...

10. In the absence of any statutory definition, the term "relative" must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. The meaning of the word "relative" would depend upon the nature of the statute. It principally includes a person related by blood, marriage or adoption.

CRL.P No. 8608 of 2021

11. The word "relative" has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon, Vol. 4, 3rd Edn. as under:

"Relative.--'Relative' includes any person related by blood, marriage or adoption. (Lunacy Act ...)

The expression 'relative' means a husband, wife, ancestor, lineal descendant, brother or sister. (Estate Duty Act ...)

'Relative' means in relation to the deceased,

(a) the wife or husband of the deceased,

(b) the father, mother, children, uncles and aunts of the deceased, and

(c) any issue of any person falling within either of the preceding sub-clauses and the other party to a marriage with any such person or issue. (Estate Duty Act ...)

A person shall be deemed to be a relative of another if, and only if--

(a) they are members of a Hindu undivided family; or

(b) they are husband and wife; or

(c) the one is related to the other in the manner indicated in Schedule I-A [Companies Act (1 of 1956 ...)]

***

'Relative' in relation to an individual means--

(a) the mother, father, husband or wife of the individual, or

(b) a son, daughter, brother, sister, nephew or niece of the individual, or

(c) a grandson or granddaughter of the individual, or

CRL.P No. 8608 of 2021

(d) the spouse of any person referred to in sub-

clause (b). (Income Tax Act ...)

'Relative' means--

(1) spouse of the person;

(2) brother or sister of the person;

(3) brother or sister of the spouse of the person;

(4) any lineal ascendant or descendant of the person;

(5) any lineal ascendant or descendant of the spouse of the person;

***

...(Narcotic Drugs and Psychotropic Substances Act ...)"

13. Furthermore, Section 498-A is a penal one.

It, thus, deserves strict construction. Ordinarily, save and except where a contextual meaning is required to be given to a statute, a penal provision is required to be construed strictly. This Court in T. Ashok Pai v. CIT [(2007) 7 SCC 162: (2007) 8 Scale 354] held as under: (SCC p. 168, para 17)

"17. It is now a well-settled principle of law that the more stringent is the law, more strict construction thereof would be necessary. Even when the burden is required to be discharged by an assessee, it would not be as heavy as on the prosecution. (See P.N. Krishna Lal v. Govt. of Kerala [1995 Supp (2) SCC 187 : 1995 SCC (Cri) 466] .)"

(See also Noor Aga v. State of Punjab [(2008) 16 SCC 417: (2008) 9 Scale 681] .)

18. By no stretch of imagination would a girlfriend or even a concubine in an etymological sense be a "relative". The word "relative" brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If

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CRL.P No. 8608 of 2021

no marriage has taken place, the question of one being relative of another would not arise.

24. Applying the principles laid down in various decisions referred to above, we have no doubt in our mind, that the appellant is not a relative of the husband of the first informant. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed."

(Emphasis supplied)

The issue before the Apex Court in U.SUVETHA was whether a

relative of a husband of a woman would come within the

meaning of Section 498A of the IPC or the provisions should be

given an extended meaning to include any relative of the

husband. The Apex Court has categorically held that penal

statutes have to be strictly construed and no where a

paramour/girl friend/concubine would come within the meaning

of 'relative' under Section 498A of the IPC. This is again

followed in reiteration by the Apex Court in the case of VIJETA

GAJRA v. STATE (NCT OF DELHI)2wherein the Apex Court

has held as follows:

"11. Shri U.U. Lalit, learned Senior Counsel, appearing on behalf of the appellant argued that in U. Suvetha v. State [(2009) 6 SCC 757: (2009) 3 SCC (Cri) 36], it was specifically held that in order to be covered under

(2010) 11 SCC 618

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CRL.P No. 8608 of 2021

Section 498-A IPC one has to be a "relative" of the husband by blood, marriage or adoption. He pointed out that the present appellant was not in any manner a "relative" as referred to in Section 498-A IPC and, therefore, there is no question of any allegation against her in respect of the ill-

treatment of the complainant. The Court in this case examined the ingredients of Section 498-A IPC and noting the specific language of the section and the Explanation thereof came to the conclusion that the word "relative" would not include a paramour or concubine or so.

12. Relying on the dictionary meaning of the word "relative" and further relying on P. Ramanatha Aiyar's Advance Law Lexicon, Vol. 4, 3rd Edn., the Court went on to hold that Section 498-A IPC being a penal provision would deserve strict construction and unless a contextual meaning is required to be given to the statute, the said statute has to be construed strictly. On that behalf the Court relied on the judgment in T. Ashok Pai v. CIT [(2007) 7 SCC 162]. A reference was made to the decision in Shivcharan Lal Verma v. State of M.P. [(2007) 15 SCC 369: (2010) 3 SCC (Cri) 729] After quoting from various decisions of this Court, it was held that reference to the word "relative" in Section 498-A IPC would be limited only to the blood relations or the relations by marriage.

13. Relying heavily on this, Shri Lalit contended that there is no question of any trial of the appellant for the offence under Section 498-A IPC. The argument is undoubtedly correct, though opposed by the learned counsel appearing for the State. We are of the opinion that there will be no question of her prosecution under Section 498-A IPC. The learned Senior Counsel appearing on behalf of the complainant, Shri Soli J. Sorabjee, also did not seriously dispute this proposition. Therefore, we hold that the FIR insofar as it concerned Section 498-A IPC, would be of no consequence and the appellant shall not be tried for the offence under Section 498-A IPC."

(Emphasis supplied)

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CRL.P No. 8608 of 2021

The afore-quoted judgments have been followed in reiteration

in the case of STATE OF PUNJAB v. GURMIT SINGH -

(2014) 9 SCC 632. If the facts obtaining in the case at hand

which are undisputed are considered on the bedrock of the

principles laid down by the Apex Court in the aforesaid

judgments, it would lead to an unmistakable inference that this

case would become a fit case where proceedings against the

petitioner/accused No.5 will have to be quashed by exercise of

jurisdiction under Section 482 of the Cr.P.C., failing which, it

will not only fall foul of the judgments of the Apex Court, but

would also become an abuse of the process of law and lead to

miscarriage of justice.

8. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal petition is allowed and the proceedings in C.C.No.18366 of 2021 pending before the VII Additional Chief Metropolitan Magistrate, Bengaluru concerning Charge Sheet No.22 of 2021 filed by Amruthahalli Police Station stands quashed qua the petitioner.

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CRL.P No. 8608 of 2021

(ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against other accused pending before the appropriate court.

Sd/-

JUDGE

bkp