Shamshad Begum vs Nagina Banu
2023 Latest Caselaw 1603 Kant

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                                                       CRL.RP No. 349 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 27TH DAY OF FEBRUARY, 2023

                                              BEFORE
                        THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          CRIMINAL REVISION PETITION NO. 349 OF 2019

                   BETWEEN:

                   1.   SHAMSHAD BEGUM
                        W/O SHAFI
                        AGED ABOUT 49 YEARS

                   2.   SAHERA BANU
                        W/O BASHA
                        AGED ABOUT 39 YEARS

                   3.   MOHAMMED SHAFI
                        S/O BUDAN SAB
                        AGED ABOUT 44 YEARS

                   4.   BASHA
                        S/O SABJAN SAB
Digitally signed        AGED ABOUT 42 YEARS
by RENUKAMBA
KG
Location: High     5.   SHAHID
Court of                S/O SHAFI
Karnataka
                        AGED ABOUT 29 YEARS

                        PETITIONERS ARE RESIDENTS OF
                        WARD NO.2, NEAR URDU SCHOOL
                        BANGARAPPA, BADAVANE
                        KANKERI,SORABA-577 429
                        SHIVAMOGGA DISTRICT
                                                              ...PETITIONERS
                   (BY SRI. P N HARISH, ADVOCATE)
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                                    CRL.RP No. 349 of 2019




AND:

1.   NAGINA BANU
     W/O ANSAR AHAMED
     AGED ABOUT 29 YEARS
     R/O C/O BIBI JAN
     5TH CROSS, TIPPUNAGARA LEFTSIDE
     SHIVAMOGGA-577 201

2.   ANSAR AHAMED
     S/O IMAM SAB
     AGED ABOUT 34 YEARS

3.   RAHAMATH BEE
     W/O IMAM SAB
     AGED ABOUT 65 YEARS

4.   SHANA
     W/O MAQBUL SAB
     AGED ABOUT 43 YEARS

5.   ASHA
     W/O ISMAIL
     AGED ABOUT 38 YEARS

6.   MAQBUL SAB
     S/O MARDAN SHEIK CHINDI,
     AGED ABOUT 47 YEARS

7.   ISMAIL
     FATHER'S NAME NOT KNOWN
     TO THE PETITIONER
     AGED ABOUT 43 YEARS

     RESPONDENT NO.2 TO 7
     ADDRESS R/O WARD NO.2,
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                                       CRL.RP No. 349 of 2019




     NEAR URDU SCHOOL
     BANGARAPPA BADAVANE
     KANKERI, SORAB-577 429
                                            ...RESPONDENTS


(BY SMT. P.V. KALPANA, ADVOCATE FOR R1,
     V/O DTD:20.08.2019, NOTICE TO R2 TO R7 IS D/W)


      THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
02.02.2019, PASSED BY THE COURT OF LEARNED II
ADDITIONAL     SESSIONS     JUDGE,    SHIVAMOGGA     IN
CRL.A.NO.5/2018 IN SO FAR AS IT RELATES TO
MODIFICATION OF THE ORDER DATED 20.12.2017 IN
C.MISC.NO.40/2014 ON THE FILE OF THE JUDICIAL
MAGISTRATE FIRST CLASS-II, SHIVAMOGGA BY ALLOWING
THIS RP AND AWARD COST OF THIS PROCEEDING AND ETC.

     THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
                             ORDER

This revision is filed by the revision petitioners, who

were Respondent Nos.4, 5, 8, 9, & 12 before the learned

Magistrate and Respondent Nos. 3, 4, 7, 8 & 11 before the

First Appellate Court challenging the order passed by the

II Additional Sessions Judge, Shivamogga in Crl.

A.No.5/2018 whereby the learned Sessions Judge has

directed the present revision petitioners along with other

respondents to return the utensils, gifted articles including

CRL.RP No. 349 of 2019

the gold and silver jewels lying with respondent No.1, to

wife who was the petitioner before the learned Magistrate.

2. For the sake of convenience, the parties herein

are referred with the ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that, the petitioner Nageena Banu is the wife of

Respondent No.1- Ansar Ahamed, while other respondents

were mother-in-law and other relatives of Respondent

No.1. The marriage is said to have been solemnized on

10.03.2013 at Nyamath Shadi Mahal, 100 Feet Road,

Shivamogga and it was an arranged marriage. There are

also allegations regarding spending huge amount for the

marriage and gifting of house-hold articles to the extent of

Rs.2.00 Lakhs and payment of dowry of Rs.50,000/-.

Later on, the petitioner complained domestic violence

against the respondents and filed a C. Misc. No.40/2014

on the file of the JMFC-II Court, Shivamogga, under

Section 12 of Protection of Women from Domestic

CRL.RP No. 349 of 2019

Violence Act, 2005 ( for short, 'D.V. Act') claiming the

relief of maintenance, protection of Domestic Violence and

other reliefs. The petition came to be partly allowed as

against Respondent No.1/Husband by awarding

maintenance of Rs.5,000/- from the date of petition and

further Respondent No.1 is restrained from causing any

act of domestic violence against the petitioner.

4. Being aggrieved by this order, the

petitioner/wife has filed an appeal in Criminal Appeal

No.5/2018 on the file of the II Additional Sessions Judge,

Shivamogga. The learned Sessions Judge allowed the said

appeal in part and confirmed the award of maintenance of

Rs.5,000/-. Further he has directed all the respondents to

return the utensils, gifts, gold and silver jewels, Godrej

Almirah, Rose wood cot, bedding and other garments lying

with them, within two months from the date of passing the

order. Being aggrieved by this order of the learned

Sessions Judge, this revision is filed by original

Respondents No.4, 5, 8, 9 & 12.

CRL.RP No. 349 of 2019

5. Heard both sides and perused the records.

6. Learned counsel for the petitioners/respondents

herein would contend that the service of process before

appellate court was not completed and the learned

Sessions Judge has passed the impugned order without

completion of services in a hurry. He would invite the

attention of the Court to the appeal memo, wherein the

relief is sought only against Respondent No.1, but the

order is being passed against all the respondents therein,

including the revision petitioners without application of

mind by the learned Sessions Judge and the order has

resulted in miscarriage of justice. As such, he would seek

for allowing the revision petition by setting aside the

impugned order passed by the learned Sessions Judge.

7. Per contra, the learned counsel appearing for

Respondent No.1 would support the order of the learned

Sessions Judge. However, he would contend that there

are certain anomalies in the order of the learned Sessions

CRL.RP No. 349 of 2019

Judge and sought for remitting back the matter to the

learned Sessions Judge.

8. Having heard the arguments and perusing the

records, it is evident from the records that the learned

Magistrate has passed the order by granting maintenance

of Rs.5,000/- in favour of the wife/Respondent No.1 herein

against husband only and he has also passed an order

restraining the Respondent No.1/husband therein from

causing any domestic violence against the appellant/wife.

This order was challenged by the wife/petitioner before

Sessions Judge. The grounds of appeal memo filed before

the learned Sessions Judge clearly disclose that the

wife/petitioner is aggrieved regarding not passing any

order regarding return of utensils and other articles as

against Respondent No.1 alone, which is evident from

ground No.2. But, interestingly, the learned Sessions

Judge has passed an order against all the respondents,

though no such relief was sought in the appeal filed by the

appellant/wife.

CRL.RP No. 349 of 2019

9. Further, the order sheet of the Criminal Appeal

No.5/2018 also clearly discloses that the service itself was

not completed and notice was not served to Respondents

1, 2, 5, 6,9 & 10 and the matter was regularly posted for

taking steps. Subsequently, the matter was referred to

mediation and thereafter, when the matter was returned

from mediation without settlement, it was directly posted

for argument. It s important to note here that the relief

was sought against Respondent No.1, who is the husband

of petitioner/wife and service against other respondents,

who are the revision petitioners herein was not completed.

But, interestingly, the order was passed without noticing

the service of notice and it has led to miscarriage of

justice.

10. As observed above, relief is also sought against

Respondent No.1/husband alone. But, the relief was

granted against all the respondents, who are the relatives

of the husband/Respondent No.2 in this revision petition

and it clearly discloses that the learned Sessions Judge

CRL.RP No. 349 of 2019

without verifying the records, in a mechanical way has

passed the impugned order, which has resulted in

miscarriage of justice.

11. Considering the above facts and circumstances,

the revision petition needs to be allowed and the matter

requires to be remitted back to the learned Sessions

Judge. Accordingly, I proceed to pass the following:

ORDER

i) The revision petition is allowed.

ii) The impugned judgment dated 02.02.2019 passed by the II Additional Sessions Judge, Shivamogga in Criminal Appeal No.5/2018 is set aside. The matter is remitted to the II Additional Sessions Court, Shivamogga, with a direction that, after completion of service of notice to the un-served respondents therein, the learned Sessions Judge is directed to pass appropriate orders in accordance with law after considering the grounds urged in the appeal memorandum.

The parties on both sides are directed to appear before the II Additional Sessions Judge, Shivamogga,

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CRL.RP No. 349 of 2019

on 20.03.2023 without waiting for any notice. However as regards un-served respondents, the wife/Respondent No.1 in this revision, who was appellant before the Appellate Court, shall take appropriate steps and the learned Sessions Judge is further directed to dispose of the matter within three months from the date of completion of service.

Sd/-

JUDGE

KGR*