Sri Misbahuddin S vs State Of Karnataka
2022 Latest Caselaw 8377 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 08TH DAY OF JUNE, 2022

                           BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.9464 OF 2021

BETWEEN:

SRI MISBAHUDDIN S.,
S/O SRI SALALUDDIN
AGED ABOUT 37 YEARS
RESIDING AT FLAT NO.400
4TH FLOOR, J.S.J.OPEL APARTMENT
B.H.E.L. LAYOUT
BENGALURU - 560 041.
                                                  ... PETITIONER
(BY SRI GAUTAM S.BHARADWAJ, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       THROUGH WHITEFIELD POLICE STATION
       REPRESENTED BY
       SPECIAL PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       BENGALURU - 560 001.

2.     MS. NAZIYA KOUSAR
       D/O SRI KALEEM BASHA
       AGED ABOUT 30 YEARS
       RESIDING AT 2ND CROSS
       IMMADIHALLI, WHITEFIELD
       BENGALURU CITY - 560 066.
                                        ... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
    SRI MOHAMMED PASHA C., ADVOCATE FOR R2)
                                2



     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO ISSUE AN APPROPRIATE ORDER DIRECTING
THE QUASHING OF FIR BEARING CR.NO.239/2021 REGISTERED
BY WHITEFIELD POLICE STATION FOR THE OFFENCE P/U/S.420,
406 OF IPC PENDING ON THE FILE OF THE COURT OF ADDITIONAL
CHIEF JUDICIAL MAGISTRATE, BENGALURU RURAL PRODUCED AS
ANNEXURE-A AND B RESPECTIVELY.

    THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.03.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
                             ORDER

The petitioner is before this Court calling in question

registration of FIR against him in Crime No.239 of 2021 for

offences punishable under Sections 406 and 420 of the IPC.

2. Heard Sri Gautam S.Bharadwaj, learned counsel for the

petitioner, Smt. K.P. Yashoda, learned High Court Government

Pleader for respondent No.1 and Sri.C.Mohammed Pasha,

learned counsel for respondent No.2.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioner meets the complainant in the month of

January 2016 who was a news reporter. The petitioner claims to

have married another lady in the first week of January 2016 and

has two children from the said wedlock. In the year 2018, it is

the case of the petitioner that despite his marriage and two

children, both the petitioner and the complainant began to like

each other, were infatuated with each other and also decided to

marry. It is the further case of the petitioner that he indicated

that the marriage could only be with the consent of his first wife

as the religion also permits second marriage. On 08-03-2021, it

is contended that the petitioner and the 2nd respondent got

engaged and were scheduled to get married on 01-07-2021.

When the marriage was fixed and all arrangements had been

done, the petitioner did not turn up. A missing complaint came

to be registered by the complainant on 05-07-2021 on account

of the petitioner not turning up and he be traced out. This

appears to have been closed as an NCR in N.C.R.No.84 of 2021

on 07-07-2021 as the petitioner by then had been traced.

4. On 16-11-2021 the 2nd respondent registers a separate

complaint in Crime No.239 of 2021 for offences punishable

under Sections 406 and 420 of the IPC. On registration of crime

against the petitioner, the petitioner has knocked the doors of

this Court calling in question the very registration of crime

against him.

5. The learned counsel appearing for the petitioner would

contend that the complainant has chosen a different police

station deliberately, after having chosen to file a complaint in

Tilkanagar Police Station which came to be closed as an NCR.

For any further complaint, the complainant ought to have

approached the very same police station. The second submission

of the learned counsel is that, the allegation which come under

Sections 406 and 420 of the IPC made in the FIR cannot, in the

circumstances even be alleged, as promise of marriage and its

breach will not lead to offence of cheating and would seek

quashment of entire proceedings.

6. On the other hand, the learned counsel representing the

2nd respondent/complainant would refute the submissions to

contend that the intention behind the petitioner assuring

marriage with the complainant and having sexual intercourse on

such promise of marriage has to be thrashed out only in a trial

and it is a case where the complainant consented to physical

relationship only on the assurance of marriage. Therefore, he

would seek dismissal of the petition permitting the trial to go on.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

8. The afore-quoted facts are not in dispute. The meeting of

the petitioner with the complainant in the year 2016 is a

narration in the complaint. The complainant further narrates

that after marriage of the petitioner in 2016, he had promised

the complainant to marry her. The assurance, according to the

complaint, was in tune with the religion that permitted another

marriage. Since the entire issue springs from the complaint, it is

germane to notice the complaint, English translation of which

furnished reads as follows: -

"My name is K.Naziya. I have been working as a news anchor for the past 10 years. I came into contact with Misbavuddin of Injaz company in 2016. I was addressing him as brother. I was divorced a few days ago. In 2017, he told me not to address him as brother and that he would marry me. He had said that Islam allows 4 marriage and therefore he will marry me. In Islam, it is believed that men who give life to divorced women go to heaven. He exploited this belief and promised me to give life. Whether he was good or bad, I had accepted him since he loved me.

But, he misused my position as a journalist. I have not received a single rupee from him till day. Instead, he has received from me my hard earned money of around Rs.52 lakhs. When his company was locked down and people who lost their money in Injaz, Misbavuddin came to me running for help. He obtained a loan of Rs.10 crores (bank loan) from the politician who is very close to me. He had lent money to Misbavuddin having confidence in me. But, even after three years, Misbavuddin has not returned a single paisa.

Thus, Misbavuddin utilized me for money, influence and legal assistance. He was in relationship with me and was in contact with my parents for the past two years. He had told my parents that he would marry me. Our engagement was held on March 8, 2021. He had informed my parents that wedding be scheduled for July 01, 2021. He made wedding shopping with me in June. He was in touch with me, speaking till June 30. After Haldi and Mehendi rituals were held, Misbavuddin told me that he would come to my place, Harihar on Thursday. But, he absconded on the marriage day, switching off his mobile. As a result my parents and relatives were put into grief. On the same evening, he called my parents and wept, saying that he would marry me next Sunday.

He called me and wept saying his driver had brainwashed him. I have all the call recordings. The health of my parents is deteriorating with every passing day on account of the wicked act of Misbavuddin. Therefore, I request you to summon Misbavuddin and ensure justice for me."

(Emphasis added)

The narration in the complaint is that the petitioner met the

complainant and made to believe her that he would marry the

complainant on 01-07-2021. An engagement to that effect on

08-03-2021 had also been performed. On a particular day,

mehendi ritual was held and the petitioner had promised that he

would come to her place and be a part of the ritual as he was

supposed to get married on 01-07-2021. On that day, the

petitioner did not come. It is in that light the petitioner narrates

that a complaint was registered on 05-07-2021 before the

Tilaknagar Police Station. The complaint so registered was not

the one that is now the subject matter. The complaint registered

with regard to the missing of the petitioner was on 26-07-2021

which reads as follows:

"To, The Police Inspector Tilak Nagar Police Station

Bengaluru City.

From

Kum.N.Kousar D/o Bhasha Age: 30 Years Residing in Flat No.402 Glass House, First Block Jayanagar Bengaluru City.

Phone No.:8105669886

Sir,

Sub: Complaint regarding missing of Misbha - with whom my wedding was fixed.

With reference to the above subject, I submit that I am residing in the above address. On 08.03.2021, my wedding was fixed with one Misbha, a resident of BHEL Layout. The wedding was scheduled for 01.07.2021. Misbha was in contact with me over phone. On 28.06.2021, Haldi and Mehendi rituals were held and Misbha spoke with me over phone till that day. But, a day before the marriage, he did not call me and went missing. I have been unable to reach him. Therefore, I request you to trace missing Misbha.

Thanking you,

Yours faithfully Sd/-

N.Kousar."

(Emphasis added)

After the petitioner was traced, the matter was closed on

07.07.2021 as an NCR, on summoning the petitioner and

advising him with regard to the allegation. It is later the subject

complaint is registered by the complainant.

9. The learned counsel appearing for the complainant

submits that the complaint was registered in the wake of a

statement given by the petitioner on 27-08-2021 that he never

knew who the complainant was. On registration of the impugned

complaint, a FIR is registered for the offences punishable under

Section 406 and 420 of the IPC. The issue now is to be

considered is,

"Whether in the peculiar facts of this case, breach of promise

of marriage would entail continuation of investigation and further

proceedings against the petitioner?"

10. As quoted hereinabove the complaint clearly narrates

that despite being married, the petitioner had a relationship with

the complainant on the promise of marriage can be visualized in

the light of religion permitting such marriage. Therefore, the

complaint altogether cannot be disregarded for the aforesaid

offences. The offence of cheating that is alleged against the

petitioner in terms of the complaint also narrates exchange of

huge sums of money again on the promise of marriage.

Therefore, the time for quashment of proceedings without any

investigation into the matter is yet to arrive, on a plea that no

proceeding can even be initiated for a breach of promise of

marriage. The intention of the petitioner has to be gathered only

in the investigation, as detailed statement of objections is filed

by the complainant as to how the petitioner had relationship

with the complainant. Therefore, the case, though in the first

blush, would look simple, does involve seriously disputed

questions of fact shrouded to it.

11. Insofar as the judgment relied on by the learned

counsel for the petitioner in the case of D.S.KARTHIK v. STATE

AND ANOTHER - Criminal Petition No.6631 of 2015 decided

on 16-12-2016 is concerned, it was a case concerning offences

punishable under Sections 366, 376 and 420 of the IPC and is

distinguishable without much ado, as in terms of the law laid

down by the Apex Court, offence of rape cannot, in the normal

circumstances, be laid in a relationship which has been

consensual. The entire judgment was on the allegation that

offence of rape cannot be allowed in a consensual act and the

Court quashed the proceedings only insofar as offences

punishable under Sections 366 and 376 of the IPC and clearly

held that the order would not preclude the complainant from

seeking that an offence punishable under Section 417 IPC

should be revived in the charge sheet. The said judgment was

rendered on a challenge being made after the police filed a

charge sheet pursuant to completion of investigation in

C.C.No.22834 of 2015 for offences punishable under Section

417 of the IPC. Therefore, the said judgment would not lend any

assistance to the petitioner.

12. The other judgment relied on by the learned counsel is

in the case of KRISHNA LAL CHAWLA AND OTHERS v. STATE

OF UTTAR PRADESH AND ANOTHER - (2021) 5 SCC 435 to

contend that the second complaint on the same set of facts was

not maintainable that too before a different police station. The

first complaint, as quoted hereinabove, was only on the

petitioner going missing on the date of Mehendi ritual. That

complaint was to trace the petitioner and it was ultimately

closed. The second complaint is registered later for offences

punishable under Sections 406 and 420 of the IPC making

specific allegations both on account of breach of promise of

marriage and certain financial transactions between the parties.

Therefore, it is not a case where there was a second FIR on the

same set of facts for the same offence. The judgment in the case

of KRISHNA LAL CHAWLA also would not lend any assistance

to the petitioner.

13. The case at hand is not a case where the police have

concluded the investigation and have filed a charge sheet for

offence of cheating on account of breach of promise of marriage.

The investigation is yet to begin. In the considered view of this

Court, it is not a case where it is a simple breach of promise of

marriage as there are other allegations also in the complaint.

The matter is still under investigation. To conclude that there is

nothing, without even an investigation being conducted, would

not generally be within the jurisdiction of this Court under

Section 482 of the Cr.P.C.

14. For the aforesaid reasons, the Criminal Petition lacks

merit and is dismissed. It shall be open to the Police to complete

the investigation in accordance with law and file an appropriate

report before the Court concerned.

It is made clear that the observations made in the course

of the order would not influence or bind the investigation or any

further proceedings before the Court concerned.

Sd/-

JUDGE

bkp CT:MJ