Karnataka High Court

Sri Ganesh Swaminadha vs Smt Deepashree Ganesh on 26 June, 2023

Bench: K.Natarajan

                             1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 26TH DAY OF JUNE 2023

                            BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.761 OF 2017

BETWEEN

1 . SRI GANESH SWAMINADHA
    AGED 38 YEARS,
    S/O SWAMINADHA PILLAI

  PERMANENT ADDRESS
  NO.47, 2ND CROSS ROAD,
  VINAYAKA LAYOUT
  BHOOPSANDRA,
  SANJAY NAGAR
  BENGALURU 560094

  PRESENT ADDRESS
  C/O GUYANA TELEPHONE
  & TELEGRAPH CO LTD.,
  79, BRICKDAM STABROEK
  GEORGE TOWN, GUYANA
  SOUTH AMERICA

2 . SRI SWAMINADHA PILLAI
    AGED 69 YEARS,
    S/O SANKARA PILLAI

3 . SMT SARALA PILLAI
    AGED 64 YEARS,
    W/O SWAMINADHA PILLAI

  ALL ARE RESIDING AT NO.47,
  2ND CROSS ROAD,
  VINAYAKA LAYOUT
  BHOOPSANDRA,
                             2




  SANJAY NAGAR
  BENGALURU 560094
                                          ... PETITIONERS
(BY SRI P.P. HEGDE, SENIOR COUNSEL FOR
 SRI VENKATESH SOMAREDDI, ADVOCATE)

AND

1 . SMT DEEPASHREE GANESH
    AGED 32 YEARS,
    RESIDING AT
    RAMLEELA HOUSE, NO.2-94A,
    KULAI HOSABETTU,
    MANGALURU - 575 006

   PRESENTLY ADDRESS
   SMT. DEEPASHREE
   NO.47, N.S. PALYA,
   II STAGE B T M LAYOUT,
   NEAR KRISHNA DEVARAYA
   UNIVERSITY COLLEGE OF
   ENGINEERING,
   BENGALURU

2 . THE STATE THROUGH THE
    POLICE INSPECTOR
    SURATHKAL POLICE STATION,
    SURATHKAL
    MANGALURU TALUK

   REPRESENTED BY THE
   STATE PUBLIC PROSECUTOR,
   HIGH COURT OF KARNATAKA
   BENGALURU - 560 001
                                         ... RESPONDENTS
(BY SMT. POOJA KATTIMANI, ADVOCATE FOR
 SRI. R.B. DESHPANDE, ADVOCATE FOR R1
 SRI. VISHWA MURTHY, HCGP FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET FILED BY
THE POLICE IN CR.NO.34/2015 OF SURATHKAL P.S.,
                                 3




MANGALURU TALUK WHICH IS NOW REGISTERED AS
C.C.NO.832/2016 ON THE FILE OF J.M.F.C.(II COURT),
MANGALURU FOR THE OFFENCE PUNISHABLE UNDER SECTION
498(A) OF IPC AND SECTIONS 3 AND 4 OF D.P. ACT AND ALL
FURTHER PROCEEDINGS IN THE SAID CASE.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 16.6.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:

                            ORDER

This petition is filed by the petitioner-accused Nos.1

to 3 under Section 482 of Cr.P.C. for quashing the criminal

proceedings in C.C. No.832/2016 pending on the file of

Judicial Magistrate First Class II Court, Mangaluru,

pursuant to crime No.34/2015 registered by Suratkal

Police Station, Mangaluru, for the offences punishable

under Section 498A of IPC and Sections 3 and 4 of Dowry

Prohibition Act.

2. Heard the arguments of learned Senior counsel

for the petitioners, learned High Court Government Pleader

for respondent No.1-State and learned counsel for

respondent No.2.

3. The case of prosecution is that on the

complaint filed by respondent No.1-Deepashri Ganesh, the

police registered the case on 15.03.2015. It is alleged by

the complainant that she was given in marriage with

accused No.1-1st petitioner. At the time of marriage, the

accused persons demanded and received gold ornaments

and dowry. The marriage engagement was held on

21.06.2010. The marriage was held on 21.10.2010 at

Panambur JNC Marriage Hall. After the marriage, the

complainant left to matrimonial home at Bangalore and

stayed with accused No.1. Then on 12.11.2010, accused

No.1 went to abroad. During the stay of the complainant

with accused No.1, the accused Nos.2 and 3 looked after

her well. But after accused No.1 left India, accused Nos.2

and 3 started harassing the complainant stating that the

dowry given was insufficient. Thereafter, she joined

accused No.1 at America. Then, she became pregnant. In

March 2012, she came back to her parents house.

Thereafter, accused No.1 used to telephone to her abusing

her in filthy language and mentally harassing her. She

gave birth to a female child. Neither accused No.1 nor

accused Nos.2 and 3 came to visit the house of the parents

house of the complainant to see the child and they also

demanded more money and gold ornaments and they

refused to take her to matrimonial home. Subsequent to

2013, accused No.1 came to Bengaluru and taken her to

Bengaluru. Thereafter, accused Nos.1 to 3 started

harassing the complainant mentally and physically.

Accused No.1 was not paying any money to the

complainant and maintaining her. Thereafter, he

telephoned to the complainant and her parents and

threatened with dire consequences. Later, the

complainant came to know that accused No.1 married

some other lady namely, Madina Henry and the said

Madina Henry herself called the complainant and informed

that she is the wife of accused No.1 and she has sent

photographs of her marriage with accused No.1 and also of

her child born out of their wedlock. Therefore, the

complainant prayed for taking action against the accused

persons. After investigation, the police filed charge sheet,

which is under challenge.

4. The learned Senor Counsel for the petitioners has

contended that the alleged offences occurred at United

States and there are no averments or allegations against

the petitioners in India. Absolutely, there is no material

against accused Nos.2 and 3. They are residing At

Bengaluru, whereas the complainant is staying at

Mangaluru in her parents house. Absolutely, there is no

evidence to show that the accused harassed the

complainant physically and mentally, in order to attract

Section 498A of IPC. it is further contended that the age

of accused No.2 is 75 years and he is in death bed.

Accused No.3 is a lady, aged about 70 years. It is further

contended that there is an allegation of second marriage

by accused No.1, where the complainant is required to file

a private complainant for the offence punishable under

Section 494 of IPC. Hence prayed for quashing the

criminal proceedings.

5. Per contra, learned counsel for the respondent

No.1 objected the petition and contended that accused

No.1 is staying at U.S., he has married some other lady

and begotten a child, by deserting respondent No.1 who is

having a female child. Accused No.1 has demanded and

accepted the gold ornaments and cash. The parents of

complainant spent huge amount for the performance of

her marriage with accused No.1. A petition for

maintenance is also pending where accused No.1 is liable

to pay more than Rs.20.00 lakhs and he has not paid a

single rupee. Because of abetment of accused Nos.2 and

3, accused No.1 started quarreling with his wife-

complainant at abroad. When she became pregnant, she

came to Mangalore and after birth of the child, they never

bother to visit and see the child. Though accused No.1

came to Bengaluru and took her to matrimonial home,

thereafter again they harassed her physically and

mentally. The materials on record are sufficient to frame

the charges. Hence, prayed for dismissing the petition.

6. Learned High Court Government Pleader also

objected the petition.

7. Having heard learned counsel for the parties,

perused the records, which reveals that the marriage of

petitioner accused-No.1 and the complainant-respondent

No.1 was performed at Mangaluru. The marriage

negotiation also held at Mangaluru and after the marriage

the accused No.1 and complainant stayed for 20 days in

the house of accused Nos.2 and 3 which is the matrimonial

home. Thereafter, petitioner-accused No.1 went to

abroad. Later, the complainant also joined him in abroad.

There was misunderstanding and the dispute arose

between the parties and due to pregnancy, the

complainant came back to parents house and stayed at

Mangaluru, where the child was born. The petitioner-

accused Nos.1 to 3 not visited the house of complainant to

see the child. Later, accused No.1 went to the house of

complainant and took the complainant to Bengaluru and

during their stay at Bengaluru, there was harassment to

the complainant. Of course, accused No.1 went back to

United States and said to be married another lady and

having a daughter. For the purpose of bigamy, the Court

at United States can take cognizance. However, for the

purpose of the offence of mental harassment punishable

under Section 498A of IPC, which is a continuing offence,

was committed by the petitioners-accused in India, and

the demand and acceptance of dowry, further dowry, are

all committed in India, especially at Bengaluru and

Mangaluru, and therefore, it cannot be said that the Court

at Bengaluru or Mangaluru have no jurisdiction to try the

case. This Court intends to rely upon the judgment of the

Hon'ble Supreme Court in the case of Abhishek Shukla

Vs. State of U.P. and Others reported in 2022 SCC

Online (ALL) 386, wherein at paragraphs 14, 15, 16

and 19 of the said judgment, the Hon'ble Supreme Court

has held as under:

"14. Learned counsel for the respondent no. 4 also relied upon the provisions of Section 188 and 189 of

the Cr.P.C. which are being reproduced here as under:--

"188. Offence committed outside India. When an offence is committed outside India-

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government."

189. Receipt of evidence relating to offences committed outside India. When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular

representative of India in or for that territory shall be received as evidence by the Court holding such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions or exhibits relate.

15. He submits that the petitioner could be tried in India even for the offences which he had committed in the USA. He submits that for investigation, in fact, no sanction of the Central Government was also required. For this purpose, he relied upon (2011) 9 SCC 527 (Thota Venkateshwarlu v. State of Andhra Pradesh through Principal Secretary). So far as the evidence was concerned, learned counsel for the respondent no. 4 submitted that under Section 189 Cr.P.C. all the evidence could be obtained by the investigating agency even from the USA.

16. Learned counsel for the respondent no. 4 replying to the arguments of the petitioner that a protection was required from the High Court because the look out notice had been issued against the petitioner and that a non-bailable warrant had been issued, submitted that the petitioner had throughout avoided investigation vis-a-vis the FIR which was lodged on 14.4.2021 and, therefore, no indulgence be granted to the petitioner. He further submits that if the offences were cognizable in nature the FIR could not be

quashed and, therefore, the prayer for a protection could not be granted to the petitioner.

19. Having heard learned counsel for the parties, the Court finds from the perusal of the First Information Report that there are allegations which reveal the commission of a cognizable offence. Respondent No. 4 has alleged various kinds of cruelties which had led her to various illnesses. The respondent no. 4 had also alleged that there was a miscarriage which had resulted because of the fact that the petitioner had pushed her. Still further the Court finds that the respondent no. 4 was being deprived of her financial resources and that had driven her to come back to India and in India also, the Court finds, there was a threat made vis-a-vis the respondent no. 4 and her parents on 26.2.2021 when two persons had reached her house at 5.30 PM and had threatened her with dire consequences. The arguments of the learned counsel for the petitioner that the FIR was a counter-blast to the notice for divorce and that the FIR itself was a malicious persecution of the petitioner do not hold any water."

8. In case of Rupali Devi Vs State of U.P. and

Others reported in (2019) 5 SCC 384, the Hon'ble

Supreme Court at paragraphs 15 and 16 has held as

under:

"15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of the Penal Code. The definition of "domestic violence" in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanations (a) & (b) to Section 498-A of the Penal Code which define "cruelty". The provisions contained in Section 498- A of the Penal Code, undoubtedly, encompass both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts

committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 CrPC which would squarely be applicable to the present case as an answer to the question raised.

16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Penal Code."

9. In Thota Venkateswarlu Vs. State of Andhra

Pradesh and Another reported in (2011) 9 SCC 527,

the Hon'ble Supreme Court at paragraph 16 and 17 has

held as under:

"16. Accordingly, up to the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the

proviso to Section 188 CrPC. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.

17. It may also be indicated that the provisions of the Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof. Accordingly, the offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the Penal Code, subject to the limitation imposed under the proviso to Section 188 CrPC."

10. In view of the principles laid down by the

Hon'ble Supreme Court when the accused persons

harassed the complainant, both physically and mentally in

India, for the purpose of dowry, and also accused No.1

married some other lady at United Sates and deserted the

complainant and her child and not even paid any

maintenance, amounts to cruelty as per Section 498A of

IPC and the demand of additional dowry attracts Section 4

of D.P. Act. Therefore, the police have rightly filed charge

sheet against the accused persons. There is material

placed on record for framing the charges against the

accused persons. Therefore, it is not a fit case for quashing