Sri. Ajay V Krishnan vs State Of Karnataka
2023 Latest Caselaw 4369 Kant

                            1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 13TH DAY OF JULY 2023

                           BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.11847 OF 2022

BETWEEN

1 . SRI. AJAY V KRISHNAN
    S/O V S KRISANAN
    AGED 41 YEARS

2 . SRI V S KRISNAN
    S/O SUBRAMNIAN
    AGED 74 YEARS

3 . SMT USHA KRISHNAN
    W/O V S KRISHNAN
    AGED 70 YEARS

   PETITIONERS NO.1 TO 3 ARE
   R A/T NO.120,
   MAHAVEER SPRINGS
   15TH MAIN, 17TH CROSS
   SARAKKI KERE
   J P NAGAR, 5TH PHASE
   BENGALURU - 560 078

4 . SMT RANJINI V K
    W/O SHANKAR RAMANI
    AGED 35 YEARS

5 . SRI SHANKAR RAMANI
    S/O V N RAMANI
    AGED 39 YEARS

   PETITIONERS NO.4 AND 5
                               2




     ARE R A/T FLAT NO.303
     3RD FLOOR, ABHEE LOTUS
     RADHA REDDY LAYOUT
     SARJAPURA ROAD
     DODDAKANANALLI
     CAMELRAN
     BENGALURU - 560 035
                                             ... PETITIONERS
(BY SRI SHAIJU KUMAR, ADVOCATE)

AND

1.    STATE OF KARNATAKA
      BY BASAVANAGUDI WOMEN POLICE STATION
      BENGALURU
      REPRESENTED BY SPP
      HIGH COURT COMPLEX
      BENGALURU 560001

2.    ARCANA N J
      D/O N S JAYARAM
      AGED 40 YEARS
      R/AT B 5-1404
      BDA INDRAPRASTA
      VALAGERE HALLI 5TH PHASE
      MYSORE ROAD
      BENGALURU - 560 059
                                            ... RESPONDENTS
(BY SRI KIRAN S. JAVALI, SPP-I ALONG WITH
 SRI S. VISHWA MURTHY, HCGP FOR R1
 SRI K. ABHINAV ANAND, ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.33672/2022 DATED 27.10.2022 AND PROCEEDINGS IN
C.C.NO.33672/2022 ON THE FILE OF THE 37TH A.C.M.M.
COURT, BENGALURU UNDER SECTION 498A AND 417 OF THE
IPC 1860 VIDE ANNEXURE-D.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.6.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
                                         3




                                   ORDER

This petition filed by the petitioners/accused Nos.1 to 5

under section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C.No.33672/2022 pending on the file of 37th

ACMM Bengaluru, arising out of Crime No.238/2022 registered

by Basavanagudi Women police station and charge sheeted for

the offence punishable under Sections 498A, 417 of Indian Penal

Code (herein after referred as IPC).

2. Heard the arguments of the learned counsel for the

petitioners, learned SPP-I, learned HCGP for the State and

learned counsel for respondent No.2.

3. The case of the prosecution is that on the complaint of

respondent No.2 filed on 11.8.2022 alleging that the first

petitioner had married respondent No.2 on 26.5.2019 at

Rangaswamy Kalyana Mantapa, Bengaluru after the marriage

she resided at matrimonial home. The petitioner No.4 who is

sister and petitioner No.5 is brother-in-law of the petitioner

No.1. The petitioner No.4 came to maternal home for second

delivery and stayed at the house of petitioner No.1 for 4 months.

The relationship between petitioner No.1 and respondent No.2

was normal till February 2021. However, inspite of completion

of one and half years of marriage, respondent No.2 had not

become pregnant, hence the family approached the doctor for

medical checkup and the doctors informed that she do not have

any problem in getting pregnancy, but they informed the count

in the sperm of the petitioner no.1 was less, hence he has been

provided some tablets. Later, they also advised petitioner No.1

to approach the fertility hospital, accordingly, treatment was

given. Further, respondent No.2 also undergone a surgery for

Polyps on 21.06.2021 and after the same, she was perfectly

ready for pregnancy. The petitioner No.1 was shown to Dr. Tarun

where it was diagnosed that petitioner No.1 was suffering from

Varicocele, Grade 3-4 disease and he his suffering from the

same for last 12 years. But he has not intimated the same to

the complainant and he has suppressed the same and married

complainant. It was also decided to go for ICSI treatment and

at that time, the father of the petitioner No.1 i.e. petitioner No.3

asked the respondent No.2 to leave the petitioner no.1 and

adopt a child from any of the ashrama. She informed the same

to the petitioner No.1, he also told to leave him and the

petitioner Nos.4 and 5 supported the petitioner no.1.

4. She further alleged that on 8.10.2021, both petitioner

No.1 and complainant undergone ICSI surgery and three fetus

were formed and frozen and kept in Milan Hospital. They also

informed the petitioner No.1 to go for surgery for varicocele but

he has refused. After 18.12.2021 the petitioner No.1 neglected

the complainant when petitioner No.4 came to second delivery.

Both petitioner Nos.1 and 3 abused her and shouted at her.

When the petitioner no.1 was requested to come to Milan

hospital for regular treatment, he refused to come to the

hospital. She further alleges that on 1.1.2022, the petitioner

Nos. 1 and 5 came to her guardian's flat and started abusing her

in filthy language and acted in indiscipline manner and went

back. Her father contacted the petitioner No.2 (father of

petitioner No.1) and requested for transmission of eggs and

complained against petitioner No.1 for not taking proper

treatment, however, petitioner No.1 refused to accept the said

transmission. That on 29.4.2022 herself and her parents went

to Palakkad to attend the 100th Birth day of grandfather of

petitioner No.1 where petitioner No.1 was present and insulted

them by saying that they were not invited and hence the

complainant family came back from the door step.

5. It is further alleged that from 30.11.2021 she stayed in

the parents house due to physical and mental harassment of

petitioner No.1, she took various treatment in the hospital and

now the petitioner No.1 was blackmailing after the ICSI

treatment. In order to keep the petitioner No.4/sister of

petitioner No.1, in the house, they did not allow the complainant

to enter the matrimonial house and used to declare she is not

the wife of petitioner No.1. Later a panchayat was held on

7.7.2022 with the family members of the petitioner and her

relatives. All the petitioners insulted the complainant during the

panchayat, hence she filed a complaint to take action after

registering the FIR. The police investigated the matter and filed

the charge sheet. hence, the petitioner challenged the same by

filing this petition.

6. The learned counsel for petitioner has contended that

the allegation made in the complaint will not attract Section

498A of IPC. Absolutely there is no evidence against the

petitioner Nos.2 to 4. The petitioner no.1 said to be suffering

from varicocele disease which is common in men/male person.

That is not a ground for attracting Section 498A of IPC. The

petitioner No.2 is 75 years old and petitioner No.3 is a diabetic

patient , her leg was amputated. The petitioner No.4 married to

petitioner No.5 and are residing separately and in order to

harass them, a false complaint has been filed to harass the

petitioners hence prayed for allowing the petition.

7. Per contra, learned SPP-I objected the petition mainly

on the ground, the police investigated the matter and filed

charge sheet. If at all any grievance, the petitioner shall

approach Magistrate for discharge under Section 239 of Cr.P.C

but without approaching the Magistrate filing petition for

quashing is not correct. There is sufficient material placed on

record to show that the petitioner committed the offence,

therefore prayed for dismissing the petition. In support of his

contention the SPP-I relied upon the judgment of Hon'ble

Supreme court in the case of ,

[1] Kaptan Singh Vs. State of Uttar Pradesh reported in (2021) 9 SCC 35,

[2] XYZ Vs. State of Gujarat reported in 10 SCC 337,

[3] CBI Vs. Arvind Khanna reported in (2019) 10 SCC 686, and

[4] Neeharika Infrastructure Pvt.

Ltd. Vs. State of Maharashtra reported in 2021 SCC Online SC 315.

8. The learned counsel for respondent No.2 contended

that there are four relatives who were examined by Investigating

Officer other than the family members of the complainant. They

have spoken about the mental cruelty caused by the petitioners.

The matter was thoroughly investigated by the police and filed

charge sheet and therefore prayed for dismissing the petition.

9. Having heard the arguments, perused the records, on

perusal of the same, the petitioner No.1 married the respondent

No.2, both of them were divorcees and it was second marriage

for both of them. After the marriage, it was revealed that the

petitioner No.1 is suffering from Varicocele, Grade 3-4 disease

and respondent No.2 was unable to become pregnant due to the

medical condition of petitioner No.1 and he was unfit for

marriage life. Both of them took treatment in various hospital

and also they took treatment in Milan's Fertility hospital,

undergone ICSI treatment and with the consent, three embryos

were formed and stored in the freezer and it has to be

transferred to respondent No.2, but the petitioners refused and

they harassed her mentally. They created ugly scenes and there

was continuous quarrel between petitioner No.1 and respondent

No.2 which reveals the petitioner No.1 was suffering from

Varicocele disease and his medical condition is unfit for begetting

a child, therefore with the help of scientific treatment, the

embryos were formed by way of ICSI treatment and it was to be

transferred to respondent No.2. But the same was resisted by

petitioners which led to mental harassment to respondent No.2.

Though petitioner no.1 filed a case, but he has not stated that he

was suffering from Vericocele and unable to beget the child, but

he has given other reasons for divorce.

10. From the statements of the victim and family which

reveals the family especially petitioner No.1 was continuously

harassing the complainant even though he was having some

problem with him, but he was making allegation against the

complainant respondent. The petitioner Nos.2 and 3 are the

parents of the petitioner No.1. The real dispute between the

husband and wife in respect of their family sexual affairs may

not be known to them and they might have supported accused

No.1 who is a son. But infact the Vericocele problem with the

petitioner No.1 who might have not disclosed to his parents and

he was purposely avoiding the IVF treatment by going to the

hospital. Therefore, it cannot be said the accused Nos.2 to 5

were having knowledge about the suffering of the accused No.1

regarding Vericocele problem and any other problem with him.

Therefore, the parents and family members are not liable to be

prosecuted without any sufficient material placed on record to

show they actually harassed the complainant physically or

mentally. On the other hand, there is sufficient material placed

on record to show that the petitioner No.1 committed offence

for facing the trial for the offence punishable under Section 498A

of IPC by suppressing the fact, married the complainant is

nothing but cheating the complainant.

11. Though the SPP-I produced various judgment of the

Hon'ble Supreme Court that the petitioners shall approach the

Magistrate and thereafter the Session judge then only the

accused shall approach this court under 482 of Cr.p.C is not

sustainable as the power of High court for quashing the criminal

proceedings under Section 482 of Cr.P.C is permissible in view of

the judgment of Hon'ble Supreme Court State of Haryana Vs

Bhajan lal's reported in AIR 1992 SC 604 and various

pronouncement of Hon'ble Supreme Court. Even in the recent

judgment Hon'ble Supreme Court has said the family members

cannot be dragged unnecessarily by implicating them in 498A of

IPC cases.

Accordingly, I pass the following order,

The petition is allowed in part.

The petition filed by petitioner No.1 is dismissed.

The petition filed by the petitioner Nos.2 to 5, are hereby

allowed.

The criminal proceedings against petitioner Nos.2 to 5, in

C.C.No.33672/2022 pending on the file of 37th ACMM Bengaluru,

arising out of Crime No.238/2022 registered by Basavanagudi

Women police station, is hereby quashed.

Sd/-

JUDGE

AKV