Karnataka High Court

Smt. Saritha Sekhar vs State Of Karnataka on 18 May, 2023

Bench: K.Natarajan

                            1


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 18TH DAY OF MAY, 2023

                           BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

           CRIMINAL PETITION NO.7866 OF 2022
                   CONNECTED WITH
           CRIMINAL PETITION NO.833 OF 2023

IN CRIMINAL PETITION NO.7866 OF 2022

BETWEEN

1 . SMT. SARITHA SEKHAR
    W/O LATE PREM SHEKAR,
    AGED ABOUT 71 YEARS,

2 . SMT YOGITHA REDDY
    W/O RAVINDRA REDDY,
    AGED ABOUT 48 YEARS,

3 . SRI RAVINDRA REDDY
    S/O K RAMASWAMY REDDY,
    AGED ABOUT 52 YEARS,

4 . SMT SHRAVANTI N
    W/O HARISH KUMAR,
    AGED ABOUT 42 YEARS,

   ALL ARE R/AT PLOT NO.24,
   BAJRANG COLONY,
   RISALA BAZAR, BURTON ROAD,
   BOLLARUM,
   SECUNDARABAD-500010
                                         ... PETITIONERS

(BY SRI V. LAXMINARAYANA , SENIOR ADVOCATE
SHI S. ISMAIL ZABIULLA, ADVOCATE)
                              2


AND

1 . STATE OF KARNATAKA
    BY TILAK NAGAR POLICE STATION,
    REP BY SPP
    HIGH COURT OF KARNATAKA,
    BANGALORE-560002

2 . SMT SHIPLA KISHORE
    W/O NANDA KISHORE,
    AGED ABOUT 39 YEARS,
    R/AT NO.1261, BELAKU,
    32ND G CROSS,
    28TH MAIN ROAD,
    JAYANAGAR 4TH T BLOCK,
    BANGALORE-560041

                                          ... RESPONDENTS
(BY SRI R.D. RENUKARADHYA, HCGP, FOR R1
SRI B.N. SHIVANNA, ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO CONTINUATION OF THE PROCEEDINGS
AGAINST THE PETITIONERS IS NOTHING BUT ABUSE OF
PROCESS OF LAW AND HENCE THE PETITIONERS HUMBLY PRAY
THAT    THIS     HONBLE    COURT     BE   PLEASED    TO
A. QUASH THE CHARGE SHEET IN C.C.NO.32748/2014 FILED BY
THE 1st RESPONDENT AT ANNEXURE-C AND CONSEQUENTLY
QUASH ALL FURTHER PROCEEDINGS IN C.C.NO.32748/2014
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 506,
324 READ WITH SECTION 34 OF IPC AND ALSO UNDER
SECTIONS 3, 4 OF D.P ACT PENDING ON THE FILE OF THE
XXXVII ACMM, BANGALORE SO FAR AS AGAINST THESE
PETITIONERS.

IN CRIMINAL PETITION NO.833 OF 2023

BETWEEN

SRI NANDA KISHOR @ HRITHVIK RAJ KISHOR
S/O LATE PREM SHEKAR
AGED ABOUT 49 YEARS,
                             3


R/AT NO.72/A, BRINDAVAN NAGAR COLONY
SUBASH NAGAR
TIRUMALAGIRI
SECUNDARABAD
HYDERABAD - 500 015
                                          ... PETITIONER

(BY SRI V. LAXMINARAYANA SENIOR ADVOCATE FOR
SRI S. ISMAIL ZABIULLA, ADVOCATE)

AND

1 . STATE OF KARNATAKA
    BY TILAK NAGAR POLICE STATION
    REP BY SPP
    HIGH COURT OF KARNATAKA
    BANGALORE - 560 002

2 . SMT SHILPA KISHORE
    W/O NAND KISHORE
    AGED ABOUT 39 YEARS,
    R/AT NO.1261, BELAKU
    32ND G CROSS
    28TH MAIN ROAD,
    JAYANAGAR 4TH T BLOCK
    BANGALORE - 560 041
                                       ... RESPONDENTS
(BY SRI R.D. RENUKARADHYA HCGP R1
SHI S. ISMAIL ZABIULLA )

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO A. QUASH THE CHARGE SHEET IN
C.C.NO.32748/2014 FILED BY THE 1st RESPONDENT AT
ANNEXURE-C AND CONSEQUENTLY QUASH ALL FURTHER
PROCEEDINGS IN C.C.NO.32748/2014 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498A, 506, 324 READ WITH
SECTION 34 OF IPC AND ALSO UNDER SECTIONS 3, 4 OF D.P.
ACT, PENDING ON THE FILE OF XXXVII ACMM, BANGALORE SO
FAR AS AGAINST THE PETITIONER IS CONCERNED.
                                4


     THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 9.02.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
                             ORDER

Crl.P.No.7866/2022 is filed by the petitioners-

accused Nos.2 to 5 and Crl.P.833/2023 is filed by

petitioner-accused No.1 under Section 482 of Cr.P.C. for

quashing the criminal proceedings in C.C.No.32748/2014

in respect of Crime No.386/2013 registered by Thilaknagar

Police Station, Bengaluru, for the offences punishable

under Sections 498A, 506, 324 read with Section 34 of the

Indian Penal Code, 1860 (for short 'IPC') and Sections 3

and 4 the Dowry Prohibition Act, 1961 (for short 'D.P.

Act'), pending on the file of the XXXVII Additional CMM,

Bengaluru.

2. Heard the arguments of learned 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 the petitioners is that on the

private complaint filed by respondent No.2, the learned

Magistrate referred the complaint under Section 156(3) of

the Cr.P.C. and in turn, the Police registered FIR and filed

the charge-sheet. It is alleged by respondent No.2 that she

has married accused No.1 on 10.03.2008 and the same

was registered before the Sub-Registrar of Marriage on

18.06.2009. At the time of marriage, the father of

respondent No.2 paid Rs.15.00 lakhs towards dowry and

later, accused No.1 and complainant started residing at 1st

Block, Jayanagar, Bengaluru. Accused No.5 who is the

sister-in-law of the complainant used to torture the

complainant for money as she and her husband were

jobless. The complainant was only the working hand,

therefore, they were blackmailing and demanding money

from her. Accused No.1 used to assault her physically by

demanding more dowry. The complainant obtained

Rs.1,50,000/- from her mother and given to the accused

for wedding of the brother of accused No.1. They went on

increasing the harassment. She has deposited Rs.1.00 lakh

in the account of accused No.5 and subsequently, they

demanded money for the marriage of accused No.5, when

she was six months pregnant and they demanded

Rs.25.00 lakhs to give to Shravanti-accused No.5 as

dowry. Then she was forced to transfer Rs.8.50 lakhs. At

the time of naming ceremony of daughter of the

complainant, again they demanded money and her parents

could not arrange any money, at that time, accused No.1

was absconding. Subsequently, the family members of

accused No.1 changed their numbers and later, she came

to know that accused No.1 was working in a new name

along with his father, daughter and his mother at Gurgaon

in March 2013. She tried to meet them, but they were

reluctant to meet her and recently she came to know that

the accused persons trying to marry some other lady to

accused No.1. Hence, she went to Gurgaon on 30.09.2013.

After seeing her, they started assaulting the complainant.

They tried to squeeze her neck and threatened with dire

consequences and they caused injury. Accordingly, the

complaint came to be registered and charge-sheet has

been filed which is under challenge.

4. The learned Senior counsel for the petitioners

has contended that there was delay of seven years in filing

the complaint. The complainant has suppressed the

material fact and there is no explanation in the complaint

regarding delay in filing the complaint. The learned Senior

counsel has taken another contention mainly that the

private complaint has been filed and referred to the Police

under Section 156(3) of Cr.P.C., where the affidavit was

not filed by the complainant along with the complaint.

Therefore, as per the guidelines issued by the Hon'ble

Supreme Court in the case of Priyanka Srivastava and

Another vs. State of Uttar Pradesh and Others

reported in (2015) 6 SCC 287, the very complaint

referring to the Police without compliance of Sections

154(1) and 154(3) of Cr.P.C., the complaint before the

Magistrate is not maintainable and liable to be quashed. In

support of his contention, the learned Senior counsel has

relied upon various judgments of the Hon'ble Supreme

Court and the High Court.

5. The learned counsel for the respondent

objected the petitions and contended that the petitioners

have already approached the High Court and the same was

dismissed. The judgment of the Hon'ble Supreme Court in

the case of Priyanka Srivastava (supra) is having

prospective effect as the judgment was delivered on

19.03.2015. He further contended that the complaint has

been filed in the year 2013 and the same was referred to

the Police and charge-sheet has been filed by the Police on

12.06.2014 prior to the judgment of the Hon'ble Supreme

Court which was delivered only in March, 2015. Therefore,

prayed for dismissing the petition.

6. Having heard the arguments and on perusal of

the records, which reveals, the respondent have filed the

private complaint under Section 200 of Cr.P.C. before the

II ACMM, Bengaluru on 29.10.2013. The learned

Magistrate after receipt of the complaint referred the same

to the Police for investigation by action under Section

156(3) of Cr.P.C. and subsequently, the Police registered

the FIR in Crime No.386/2013 for the offences punishable

under Sections 498A, 324, 506 of IPC and Sections 3 and

4 of the D.P. Act and charge-sheet also came to be filed as

on 12.06.2014. It is also an admitted fact that the

petitioners have approached the High Court for quashing

the criminal proceedings, but subsequently it was

dismissed for non prosecution and also once, in the crime

stage, the petition came to be dismissed by the High

Court. Now once again, the petitioners are before this

Court on various grounds, however, mainly on the ground

that there was inordinate delay in lodging the complaint for

almost seven years and the respondent not approached

the Police under Sections 154(1) and 154(3) of Cr.P.C. but

directly filed the complaint under Section 200 of Cr.P.C.

without filing the supporting affidavit along with the

complaint.

7. Of course, there is a delay in lodging the

complaint and on verifying the averments, the harassment

and ill treatment were all pertaining to the year 2008 and

2009 and admittedly the complaint came to be filed in

October 2013. The delay has not been explained by the

complainant. However, the learned Senior counsel for the

petitioners has seriously contended that the very

foundation of the filing complaint without supporting the

affidavit and without approaching the Police under Section

154 of Cr.P.C., filing the complaint directly to the

Court/Magistrate is not sustainable under the law in view

of the judgment of the Hon'ble Supreme Court in the case

of Priyanka Srivastava (supra).

8. It is well settled by the Hon'ble Supreme Court

in the case of Priyanka Srivastava (supra) that the

complainant shall approach the Police at first instance

under Section 154(1) of Cr.P.C. and if the complaint is not

received by the Police, then, the complainant has to

approach the Higher Police Officials under Section 154(3)

of Cr.P.C. and if the Higher Police Officials also not acted

upon, then the complainant shall approach the Magistrate

under Section 200 of Cr.P.C. The learned Magistrate may

in his discretion can take the cognizance and proceed in

accordance with law as per Sections 200 to 204 of Cr.P.C.

or else the Magistrate in his discretion may refer the

complaint under Section 156(3) of Cr.P.C. and if the Police

filed the report, then the Magistrate can take the

cognizance.

9. The respondent counsel has relied the

judgment of the Hon'ble Supreme Court on the very same

principle which was considered by the Hon'ble Supreme

Court in the case of Vinubhai Haribhai Malaviya and

Others vs. State of Gujarat and Another reported in

AIR 2019 SC 5233. However, the Hon'ble Supreme Court

has not considered the said case in the Vinubhai's case

whether compliance under Sections 154(1) and 154(3) of

Cr.P.C. and affidavit in respect of principle laid down by

the Hon'ble Supreme Court in the case of Priyanka

Srivastava (supra).

10. On the other hand, the judgment produced by

the learned Senior counsel for the petitioners in various

catena of decisions, the Hon'ble Supreme Court has

considered the Priyanka Srivastava's case (supra) and

quashed the complaint for non-compliance of the

guidelines issued by the Hon'ble Supreme Court in the

case of Priyanka Srivastava (supra). In the case of Babu

Venkatesh and Others vs. State of Karnataka and

Another reported in AIR Online 2022 SC 175, the

Hon'ble Supreme Court has quashed the complaint for non

filing of the affidavit.

11. Now, the question arises for this Court whether

the judgment of the Hon'ble Supreme Court in the case of

Priyanka Srivastava (supra) is applicable to the case on

hand or not. Since the complaint and the charge sheet

came to be filed prior to the judgment delivered by the

Hon'ble Supreme Court in the case of Priyanka

Srivastava (supra), wherein the judgment was delivered

on 19.03.2015. The learned Senior counsel has contended

that the guidelines issued by the Hon'ble Supreme Court is

a law of the land regarding procedure and Hon'ble

Supreme Court has not stated in the judgment that it has

given prospective effect and if there is no observation by

the Hon'ble Supreme Court regarding the effect of the

judgment, then it is always having retrospective effect. In

support of his contention, the learned Senior counsel has

relied upon the judgment of the Hon'ble Supreme Court in

the case of P.V.George and Others vs. State of Kerala

and Others reported in (2007) 3 SCC 557, the Hon'ble

Supreme Court has considered the law of precedent and

the pronouncement of the judgment regarding prospective

effect or retrospective effect held at paragraph No.29

which is as under:

"29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a

prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf."

12. In another judgment, in the case of Yakub

Abdul Razak Memon vs. State of Maharashtra and

connected maters reported in (2015) 9 SCC 552 in a

similar circumstances, the Hon'ble Supreme Court has held

at paragraph No.59 which is as under:

"59. Thus viewed, it would become a declaration of law under Article 141 of the Constitution and unless the Court says it is prospectively applicable, it would always be deemed to be applicable. However, it is also to be seen what is the purpose and purport behind the said principle and whether that would affect the issuance of death warrant in this case."

13. By relying upon the judgment of the Hon'ble

Supreme Court, the Uttarkhand High Court also held in the

case of Anil Kumar Joshi vs. State of Uttarkhand &

another in Crl.Mis.No.1613/2015 has taken the similar

view by relying upon the judgment of Priyanka

Srivastava (supra) and held that a law made by the Court

always has a retrospective effect unless specifically stated

in the ruling itself since it has not been stated that the

ruling will have prospective effect.

14. Therefore in my considered view, the Hon'ble

Supreme Court has not stated in the judgment delivered

on 19.03.2015 in the case of Priyanka Srivastava

(supra) that the judgment will have only prospective

effect. Therefore, when there is nothing stated by the

Hon'ble Supreme Court, it is always has a retrospective

effect.

15. The Hon'ble Supreme Court has laid down the

law in respect of procedure that the complainant required

to approach the Magistrate and to file the private

complaint under Section 200 of Cr.P.C. for the purpose of

referring the same to the Police under Section 156 (3) of

Cr.P.C. and has categorically held that without approaching

the Police under Section 154 of Cr.P.C., the complainant

cannot approach the Magistrate and refer the complaint

under Section 156(3) of Cr.P.C. and it is also held that the

complainant required to file affidavit along with the

complaint regarding compliance of Section 154 of Cr.P.C.

Therefore, it is mandatory on the part of the complainant

to approach the Police at initial stage and if they are not

taken any action, then to file the complaint to the

Magistrate as per Section 2(d) of the Cr.P.C. and later the

learned Magistrate in his discretion may take the

cognizance and enquire with the complainant by recording

the sworn statement or the witnesses, then issue process

or else, the complaint can be refereed to the Police for

investigation under Section 156(3) of Cr.P.C., therefore,

the complaint filed by the complainant-respondent No.2

without compliance of the procedure, the very complaint,

registering FIR and charge sheet is not sustainable under

the law.

16. The Hon'ble Supreme Court in the case of

State of Orissa and Another vs. Mamata Mohanty

reported in (2011) 3 SCC 436 held at paragraph No.37

which is as under:

"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam, Mangal Prasad Tamoli v. Narvadeshwar Mishra and Ritesh Tewari v. State of U.P."

17. In another judgment of the Hon'ble Supreme

Court in the case of State of Punjab vs. Devinder Pal

Singh Bhullar reported in (2011) 14 SCC 770 has held

at paragraph No.107 which is as under:

"107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit offence punishable under Section meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case."

18. In view of the judgments of the Hon'ble

Supreme Court in the above said two cases, when the

initial inception of the complaint itself is not in accordance

with law, therefore, the subsequent proceedings has no

bearings. When the very foundation itself is wrong and

not in accordance with law, the very complaint and

investigation suffer from infirmities and it goes to the root

of the case. Therefore, continuing the process against the

petitioners is abuse of process of law and liable to be

quashed.

19. Accordingly, both the petitions are allowed.

The criminal proceedings against the petitioners-