Karnataka High Court
Shri Maheshwar S/O Shivanand ... vs The State Of Karnataka on 6 December, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 103154 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 103154 OF 2022 (482-)
BETWEEN:
1. SHRI. MAHESHWAR S/O SHIVANAND
SHANKARAPPANAVAR, AGE. 41 YEARS,
OCC. ENGINEER, R/O H.NO. 103, 1ST FLOOR,
SHRI. DATTA APARTMENT,
APURVA NAGAR, 2ND CROSS,
HUBBALLI, NOW RESIDING AT:
NO. 2624, RIGDE MONT HILL ROAD,
CARY NORTH CAROLINA USA,
R/BY HIS GENERAL POWER OF ATTORNEY HOLDER,
SMT. RATNA W/O SHIVANAND SHANKRAPPANAVAR,
AGE. 67 YEARS, OCC. ENGINEER,
R/O H.NO.103, 1ST FLOOR, SHRI DATTA APARTMENT,
APURVA NAGAR, 2ND CROSS, HUBBALLI-580020,
DIST. DHARWAD.
2. SMT. RATNA W/O SHIVANAND SHANKRAPPANAVAR,
AGE. 67 YEARS, OCC. HOUSEHOLD WORK/ENGINEER,
Digitally signed
R/O H.NO.103, 1ST FLOOR, SHRI DATTA APARTMENT,
by
VIJAYALAKSHMI
VIJAYALAKSHMI M KANKUPPI
M KANKUPPI
Date:
APURVA NAGAR, 2ND CROSS, HUBBALLI-580020,
2023.12.11
11:17:06 +0530 DIST. DHARWAD.
3. SMT. MAMATA W/O GIRISH HUGAR,
AGE. 43 YEARS, OCC. DOCTOR,
PERMANENT R/O. H.NO.103, 1ST FLOOR,
SHRI DATTA APARTMENT,
APURVA NAGAR, 2ND CROSS,
HUBBALLI-580020, DIST. DHARWAD,
NOW RESIDING AT: 2036, STAN WOOD,
DR APEX, NORTH CAROLINA, USA 27502/4785
... PETITIONERS
(BY SRI. A.C. CHAKALABBI &
SRI. S.B. DODDAGOUDAR, ADVOCATES)
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CRL.P No. 103154 of 2022
AND:
1. THE STATE OF KARNATAKA,
THROUGH WOMEN POLICE STATION, HUBBALLI,
R/BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD-580001.
2. SMT. SWAPNA W/O MAHESHWAR SANKRAPPANAVAR,
AGE. 34 YEARS, OCC. PRIVATE SERVICE,
R/O. C/O. SHIVAKUMAR AWATE,
KALE BUILDING, DURGA COLONY,
SAPTAPUR, DHARWAD-580008.
... RESPONDENTS
(BY SRI. P.N. HATTI, HCGP FOR R1;
SRI. N.P. VIVEK MEHTA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE
PETITIONERS IN CC NO.7635/2021 PENDING ON THE FILE OF THE
III ADDITIONAL CIVIL JUDGE AND JMFC, HUBBALLI, FOR THE
COMMISSION OF THE ALLEGED OFFENCES PUNISHABLE U/S 498(A),
323, 504, 506 R/W 34 OF IPC, 1860.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is filed praying to quash the entire
proceedings in C.C.No.7635/2021, pending on the file of
learned III Additional Civil Judge and JMFC, Hubballi registered
for the offences punishable under Sections 498A, 323, 504 and
506 read with Section 34 of Indian Penal Code (hereinafter
referred as 'IPC' for brevity).
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2. Heard learned counsel for the petitioners, learned
counsel appearing for respondent No.2 and learned High Court
Government Pleader appearing for respondent No.1-State.
3. Respondent No.2 has filed First Information and the
same came to be registered in Hubballi-Dharwad Mahila Police
Station Crime No.40/2022 for the offences punishable under
Sections 498A, 323, 504 and 506 read with Section 34 of IPC.
The petitioners have been arrayed as accused Nos.1 to 3 in the
charge-sheet. The police after investigation filed charge-sheet
against petitioners for the offences punishable under Sections
498A, 323, 504 and 506 read with Section 34 of IPC. On the
basis of said charge-sheet, a case came to be registered
against these petitioners in C.C.No.7635/2022, pending on the
file of learned III Additional Civil Judge and JMFC, Hubballi. The
petitioners have sought quashing of the proceedings of said
criminal case.
4. Learned counsel for the petitioners would contend
that the marriage of 1st petitioner with respondent No.2 has
taken place on 26.11.2016 and respondent No.2 after quarrel
within 15 days went to her parents house and thereafter,
petitioner No.1 i.e., husband of respondent No.2 left India and
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went to United States of America (for short 'U.S.A'). Petitioner
No.1 has filed petition seeking divorce on 14.03.2019 which is
pending in M.C.No.17/2019. During the pendency of said
divorce petition, there were conciliation and mediations to
settle the dispute between 01.02.2020 to 26.03.2020 and at
that time, petitioner No.1 has appeared through video
conference to the said mediation from U.S.A. During the
pendency of said divorce petition, respondent No.2 making
false allegations has lodged First Information against the
petitioners. Petitioner Nos.1 to 3 are residing in U.S.A and 3rd
petitioner is the citizen of U.S.A since 2004. The proceedings
against the petitioners is abuse of process of law. He placed
reliance on the decision of Hon'ble Apex Court in the Case of
Kahkashan Kausar @ Sonam & Ors Vs State of Bihar &
Ors1. With this, he prayed to allow the petition.
5. Per contra, learned counsel for respondent No.2 and
learned HCGP for respondent No.1 both submit that the police
after investigation have filed charge-sheet against the
petitioners for the offences punishable under Sections 498A,
323, 504 and 506 read with Section 34 of IPC. The Court
2022 (6) SCC 599
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exercising powers under Section 482 of Cr.P.C., cannot hold
mini trial. On that point, learned counsel for respondent No.2
has placed reliance on the decision of Hon'ble Apex Court in the
case of State of Karnataka Vs M. Devendrappa and
Another2, wherein it is held as under;
"5. Aggrieved by the said Order directing
quashing of the proceedings, this appeal has been
filed. In support of the appeal, it is submitted by
learned counsel for the State of Karnataka that the
very approach of learned Single Judge is
unjustified, illegal and erroneous. He was
considering the desirability of continuing the
proceeding. He has dealt with the matter as if he
was holding a trial. The question whether there
was any direct evidence or not is not really
relevant at the stage of taking cognizance/framing
of charges. Considering the limited scope of
consideration in the background of powers
exercisable under Section 482 of the Code, the
order, it is submitted, is erroneous. Learned
counsel for the respondents/accused persons,
however, submitted that when there is no scope
for conviction, the continuance of the proceedings
would have been an abuse of the process of Court.
Further, persons whose roles have been
(2022) 3 Supreme Court Cases 89
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highlighted by learned Single Judge to show
involvement having not been made accused
persons, and having been only indicated to be
witnesses, the trial, if any, would ultimately be of
no consequence. In substance, it was, therefore,
submitted that the order does not suffer from any
infirmity to warrant any interference.
6. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
not the rule. The section does not confer any new
powers on High Court. It only saves the inherent
power which the Court possessed before the
enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of process of Court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which
would govern the exercise of inherent jurisdiction.
No legislative enactment dealing with procedure
can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from
express provisions of law which are necessary for
proper discharge of functions and duties imposed
upon them by law. That is the doctrine which finds
expression in the section which merely recognizes
and preserves inherent powers of High Courts. All
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Courts, whether civil or criminal possess, in the
absence of any express provision, as inherent in
their constitution, all such powers as are necessary
to do the right and to undo a wrong in course of
administration of justice on the principle "quando
lex aliquid aliqui concedit, concedere videtur et id
sine quo res ipsae, esse non potest" (when the law
gives a person anything it gives him that without
which it cannot exist). While exercising powers
under the Section, the Court does not function as a
Court of appeal or revision. Inherent jurisdiction
under the section though wide has to be exercised
sparingly, carefully and with caution and only when
such exercise is justified by the tests specifically
laid down in the Section itself. It is to be exercised
exdebite justitiae to do real and substantial justice
for the administration of which alone Courts exist.
Authority of the Court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the Court has
power to prevent abuse. It would be an abuse of
process of Court to allow any action which would
result in injustice and prevent promotion of justice.
In exercise of the powers Court would be justified
to quash any proceeding if it finds
initiation/continuance of it amounts to abuse of
process of Court or quashing of these proceedings
would otherwise serve the ends of justice. When
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no offence is disclosed by the complaint, the Court
may examine the question of fact. When a
complaint is sought to be quashed, it is permissible
to look into the materials to assess what the
complainant has alleged and whether any offence
is made out even if the allegations are accepted in
toto.
8. In dealing with the last case, it is important
to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is legal
evidence which, on appreciation, may or may not
support the accusations. When exercising
jurisdiction under Section 482 of the Code, the
High Court would not ordinarily embark upon an
enquiry whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it accusation would not be
sustained. That is function of the trial Judge.
Judicial process should not be an instrument of
oppression, or, needless harassment. Court should
be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing
process, lest it would be an instrument in the
hands of private complainant as unleash vendetta
to harass any person needlessly. At the same time
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the section is not an instrument handed over to an
accused to short-circuit a prosecution and bring
about its sudden death. The scope of exercise of
power under Section 482 of the Code and the
categories of cases where the High Court may
exercise its power under it relating to cognizable
offences to prevent abuse of process of any Court
or otherwise to secure the ends of justice were set
out in some detail by this Court in State of
Haryana and others vs. Ch. Bhajan Lal and others
(AIR 1992 SC 604). A note of caution was,
however, added that the power should be
exercised sparingly and that too in rarest of rare
cases. The illustrative categories indicated by this
Court are as follows: -
(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 F.I.R do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order
of Magistrate within the purview of Section 155(2)
of the Code.
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(3) Where the uncontroverted allegations made in
the F.I.R. 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 F.I.R. do not
constitute a cognizable offence but constitute only
a non-cognizable 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
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motive for wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge."
6. Learned counsel has also relied upon the decision of
Hon'ble Apex Court in the case of Central Bureau of
Investigation Vs Aryan Singh ETC3, wherein it is held as
under;
"4.1. From the impugned common judgment and order
passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini trial and/or the High Court
was considering the applications against the judgment and
order passed by the learned Trial Court on conclusion of
trial. As per the cardinal principle of law, at the stage of
discharge and/or quashing of the criminal proceedings,
while exercising the powers under Section 482 Cr.P.C., the
Court is not required to conduct the mini trial. The High
Court in the common impugned judgment and order has
observed that the charges against the accused are not
proved. This is not the stage where the prosecution /
investigating agency is/are required to prove the charges.
The charges are required to be proved during the trial on
the basis of the evidence led by the
prosecution/investigating agency. Therefore, the High
Court has materially erred in going in detail in the
[2023] 2 S.C.R 891
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allegations and the material collected during the course of
the investigation against the accused, at this stage. At the
stage of discharge and/or while exercising the powers
under Section 482 Cr.P.C., the Court has a very limited
jurisdiction and is required to consider "whether any
sufficient material is available to proceed further against
the accused for which the accused is required to be tried or
not".
7. Learned counsel for respondent No.2 would contend
that the version of complainant is supported by the statement
of witnesses regarding harassment by the petitioners to
respondent No.2. He contends that the 1st petitioner at this
stage also is ready to join her husband to lead marital life.
8. Learned counsel for petitioners in reply has
contended that the marriage between petitioner No.1 and
respondent No.2 is not consummated as she stayed in the
house of her husband only for few days and thereafter, she has
not made any efforts to join her husband, even she has not got
issued any notice in that regard.
9. Having heard learned counsel for the parties, the
Court has perused the charge-sheet material and documents
produced by the parties.
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10. The marriage of 1st petitioner with respondent No.2
was solemnized on 26.11.2016. In the averments of the
complaint it is stated that on 14.12.2016 her husband made a
phone call and asked her not to come to his house otherwise he
will kill her and for the said aspect there is instigation from his
family members. The said aspect itself shows that respondent
No.2 was residing in her parents' house on 14.12.2016.
Thereafter, on 16.12.2016, the petitioner No.1 went to USA. As
per the averments of the complaint, as the parents of the
petitioner No.1 did not allow the respondent No.2 in their
house. She made phone call to her husband on 11.01.2018 on
that time, it is alleged that he asked her to pay dowry to his
parents otherwise they will not give visa and passport. In the
averments of the complaint, it is stated that without taking
respondent No.2 husband's house and without allowing her to
join her husband, they have cheated her. Even it is state in the
complaint that on 17.02.2019, when she went to the house of
her husband along with elders, when they did not allow her in
their house stating that she has to bring dowry and in spite of
her efforts, she could not contact her husband. The last
incident in the complaint is that on 16.08.2020, on that day,
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when the respondent No.2 along with elders when went to the
house of her husband, her mother-in-law told her that if she
brings dowry she will entertain her in their house. In the pari
materia with the said averments, the mother of respondent
No.2 (C.W-4) and elders (CWs.5 to 8) have stated in their
statements.
11. It is material to note that the petitioner No.1 who is
the husband of respondent No.2 went to USA on 16.12.2016.
As per the averments of the complaint, prior to the said date,
the respondent No.2 went to her parents' house. The father of
the petitioner No.1 died on 17.02.2019 and the petitioner No.1
had came to India at that time to attend funeral ceremony of
his father. The petitioner No.1 has filed petition seeking divorce
in M.C.No.79/2019 on 14.03.2019 and it was pending as on the
date of filing of the complaint by respondent No.2 on
24.08.2020. The order sheet of M.C.No.79/2019 indicates that
there was conciliation and mediation was going on and the
petitioner No.1 attending the mediation through video
conference, as he was in the USA. During pendency of the said
divorce petition, the respondent No.2 has filed the complaint on
24.08.2020. The petitioner Nos.1 and 3 were not in India at the
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time of filing the complaint. In the petition seeking divorce the
petitioner No.1 has sought divorce on the ground of physical
and mental cruelty attributed by the respondent No.2 to the
petitioner No.1 and his family members, which caused
deterioration in the health of the father of the petitioner No.1
and he died on 17.02.2019. The respondent No.2 has not filed
statement of objections to the divorce petition till 12.01.2021.
Considering all these aspects, the respondent No.2 with an
intention to harass the petitioners has lodged the complaint.
The Hon'ble Apex Court in case of Kahkashan Kausar @
Sonam (supra) has observed as under:
"14. Previously, in the landmark judgment of this court in
Arnesh Kumar Vs. State of Bihar and Anr., it was also
observed:-
"4. There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage
is greatly revered in this country. Section 498-A IPC
was introduced with avowed object to combat the
menace of harassment to a woman at the hands of
her husband and his relatives. The fact that Section
498-A IPC is a cognizable and non-bailable offence
has lent it a dubious place of pride amongst the
provisions that are used as weapons rather than
shield by disgruntled wives. The simplest way to
harass is to get the husband and his relatives
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arrested under this provision. In a quite number of
cases, bed- ridden grandfathers and grand-mothers
of the husbands, their sisters living abroad for
decades are arrested."
17. Recently, in K. Subba Rao v. The State of
Telangana, it was also observed that:-
"6. 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."
18. The above-mentioned decisions clearly demonstrate
that this court has at numerous instances expressed
concern over the misuse of section 498A IPC and the
increased tendency of implicating relatives of the husband
in matrimonial disputes, without analysing the long term
ramifications of a trial on the complainant as well as the
accused. It is further manifest from the said judgments
that false implication by way of general omnibus
allegations made in the course of matrimonial dispute, if
left unchecked would result in misuse of the process of
law. Therefore, this court by way of its judgments has
warned the courts from proceeding against the relatives
and in-laws of the husband when no prima facie case is
made out against them."
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12. Considering all these aspect, filing of complaint by
respondent No.2 is abuse of process of law. Even on perusal of
the charge sheet material and statement of witnesses, no case
is made out for the offence alleged against them. Therefore
proceedings against the petitioners are required to be quashed.
In the result, the following:
ORDER
The petition is allowed.
The proceedings against petitioners in
C.C.No.7635/2021 pending on the file of the III Additional
Civil Judge and JMFC, Hubballi, are quashed.
Sd/-
JUDGE
AM & AC
CT:BCK
