Partly allowed

Mohammed Rafi v. State of Karnataka

Karnataka HC14 Jun 2021CRL.P/3140/2017

Case brief

AI extract

What is this about?

High Court allowed quashing of criminal proceedings against petitioners Nos.2 to 7 in C.C.No.66/2016 for alleged dowry harassment and cruelty, finding no prima facie material to establish offences. Proceedings against first petitioner were dismissed due to specific allegations and reciprocal assault claims.

What did the court decide?

Proceedings in C.C.No.66/2016 against petitioners Nos.2 to 7 were quashed. Petition by first petitioner was dismissed.

Mohammed Rafi Vs State of Karnataka — Writ and Judicial Review | Karnataka HC (2021)

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Crl.P.No.3140/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION NO.3140/2017

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BETWEEN :

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MOHAMMED RAFI S/O K.M.ABBAS AGED 42 YEARS RESIDING AT NO.9, 2^ND MAIN ROAD OPPOSITE WARD OFFICE RT NAGAR, BANGALORE – 560 032

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SRI.K.M.ABBAS S/O KUMBLE MOHAMMAD AGED 78 YEARS KALANDER COTTAGE HOUSING BOARD, JAVAGAL, ARASIKERE TALUK HASSAN DISTRICT – 573 125

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SRI.ABDUL REHMAN S/O K.M.ABBAS AGED 38 YEARS RESIDING AT NO.17, BALAJI APARTMENTS BASAPPA LAYOUT, HBR RING ROAD BANGALORE – 560 043

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SRI.ABDUL RAZAK S/O MOHAMMAD KUNHI AGED 40 YEARS RESIDING AT PANANGADI HOUSE MANJESHWAR, KASARAGOD DISTRICT KERALA STATE – 671 323

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SMT. ASMA W/O JAMALUDDIN AGED 44 YEARS RESIDING AT JAMMA MASJID

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Crl.P.No.3140/2017

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BELLARE, SULLIA TALUK D K DISTRICT – 574 212

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SMT.JOHARA W/O ABDUL REHMAN HAJI AGED 48 YEARS NEAR PHILOMINA COLLEGE DARBE, PUTTUR DAKSHINA KANNADA DISTRICT – 574 201

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SMT.B.B.KALANDER W/O ABDUL RAZAK AGED 34 YEARS RESIDING AT PANANGADI HOUSE MANJESHWAR, KASARAGOD DISTRICT KERALA STATE …PETITIONERS

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(BY SRI.M.VINOD KUMAR, ADVOCATE)

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AND :

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STATE OF KARNATAKA REP. BY S.H.O. ALL WOMEN POLICE STATION MANGALORE DAKSHINA KANNADA DISTRICT REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA VIDHANASOUDHA, BANGALORE

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SMT.FATHIMA SHAHISTHA D/O M.HUSSAIN AGED 33 YEARS NEAR NADUPALLI KALALA ROAD, KUIDROLI DAKSHINA KANNADA … RESPONDENTS

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(BY SMT.NAMITHA MAHESH B.G., HCGP FOR R1; SRI.T.I.ABDULLA, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.66/2016 (FIR IN CRIME NO.15/2015 OF WOMEN POLICE STATION, MANGALURU) PENDING ON THE FILE OF III ADDITIONAL JMFC, MANGALURU FOR THE OFFENCES PUNISHABLE UNDER

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Crl.P.No.3140/2017

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SECTIONS 498A, 504, 506, 323 READ WITH 34 OF IPC AND SECTION 4 OF D.P.ACT.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 7^TH JUNE 2021, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in C.C.No.66/2016 on the file of III Additional JMFC, Mangaluru against the petitioners amount to abuse of the process of the Court?” is the question involved in this case.

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The petitioners are accused Nos.1 to 7 in C.C.No.66/2016 on the file of the III Additional JMFC, Mangaluru. The said case was initiated on the basis of the charge sheet filed by the first respondent-Police in Crime No.15/2015 of Women Police Station, Mangaluru. Crime No.15/2015 was registered against the petitioners on the basis of the complaint filed by the second respondent for the offences punishable under Sections 323, 498A 504, 506 read with 34 IPC.

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The marriage of the first petitioner with second respondent was solemnized on 17.06.2000. Petitioner No.2 is the father, Petitioner No.3 is the

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Crl.P.No.3140/2017

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brother and petitioner Nos.5 and 6 are the married sisters and petitioner Nos.4 and 7 are the relatives of the first petitioner. Out of their marriage, petitioner No.1 and the second respondent have two children aged 13 years and 5 years. After their marriage, petitioner No.1 and the second respondent lived in Saudi Arabia from December 2000 to 23.05.2012. On their return to India, the first petitioner and the second respondent lived separately from the other petitioners in Bengaluru and Mangaluru.

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The second respondent filed complaint alleging that the first petitioner drove her out of matrimonial home about 7 to 8 months prior to the complaint. Since then she is living in her parental home at Mangaluru.

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The allegations in the complaint are as follows:

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i) The first petitioner sold 250 grams of gold jewellery given to her by her parents at the time of marriage and squandered that money.

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Crl.P.No.3140/2017

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ii) The accused subjected her to physical and mental cruelty in connection with their demand for additional dowry and threatened that they will burn her if she fails to fulfil their demand.

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iii) The first petitioner was addicted to alcohol, Narcotic drugs, had extra marital relationship with sales girl and was harassing her in that background.

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iv) That on 19.04.2015 at about 1.30 p.m. when she had been to see her father in Unity hospital Mangaluru, the first petitioner came there, assaulted her and her brothers and caused injuries.

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On the basis of the said complaint, the first respondent-Police registered FIR in Crime No.15/2015, conducted the investigation and filed the charge sheet as aforesaid. On receiving the charge sheet, the trial Court took cognizance of the offences, summoned the petitioners to face the trial.

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The petitioners seek quashing of the proceedings on the following grounds:

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i) Absolutely there is no material to constitute

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the offence alleged against them;

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Crl.P.No.3140/2017

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ii) Petitioner Nos.2 to 7 are implicated only with an intention to harass them. No case is made out against them.

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iii) Petitioner Nos.5 and 6 the sisters of the first petitioner were married much prior to the marriage of the first petitioner and second respondent and living separately in their matrimonial homes.

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iv) Petitioner Nos.3, 4 and 6 are also living at different places and they were falsely implicated in the case.

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v) It was the second respondent and her brothers who assaulted the first petitioner on 19.04.2015. On the basis of the complaint filed by the first petitioner in that regard, the first respondent-Police registered Crime No.36/2015 against the brothers of the second respondent. Thus Crime Nos.15/2015 and 36/2016 are the case and counter cases.

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vi) The wound certificate of the first petitioner shows that he had suffered the injuries. The statement of the second respondent shows that herself and her

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brother had not suffered any injury and they have not taken any treatment.

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vii) The matrimonial dispute is given the colour of criminal case, therefore liable to be quashed.

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Reiterating the grounds of petition, learned

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counsel for the petitioner relies upon the following judgments:

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i) State of Haryana and others vs. Bhajanlal and others¹

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ii) Indian Oil Corporation vs. NEPC India Ltd and others²

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Per contra, learned HCGP and learned

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counsel for the second respondent oppose the petition on the following grounds:

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i) The charge sheet is already filed. At this stage, the Court cannot embark on enquiry to find out whether the case for conviction is made out.

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ii) It is open to the petitioners to raise all such

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contentions in defence during trial.

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1 AIR 1992 SC 604

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2 (2006) 6 SCC 736

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Crl.P.No.3140/2017

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It is settled position of law that the power under Section 482 of Cr.P.C., shall be sparingly exercised to quash the criminal proceedings. However, the larger Bench of the Hon’ble Supreme Court as long back as in 1992 in Bhajanlal’s case referred to Supra held that if the High Court is satisfied that the criminal proceedings amount to abuse of the process of the Court can quash the proceedings to prevent the failure of justice.

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The Hon’ble Supreme Court in para No.108 of the judgment in Bhajan Lal’s case referred to Supra identified categories of cases in which power could be exercised to prevent abuse of process of the Court and to secure ends of justice. For the purpose of this case, paragraphs 108(1),(3),(5),(7) are relevant which read as follows:

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“108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers

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Crl.P.No.3140/2017

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under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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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.

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Where the uncontroverted

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allegations made in the FIR 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 ;

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Where the allegations made in the

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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 ;

Crl.P.No.3140/2017

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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(Emphasis supplied)

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Regarding tendency of the parties cloaking

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the family dispute into criminal case, the Hon'ble Supreme Court in para 13 of the judgment in Indian Oil Corporation ’s case referred to supra held as follows:

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“While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal

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Crl.P.No.3140/2017

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prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [2000(2) SCC 636], this Court observed :

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"It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

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(Emphasis supplied)

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In the light of the guidelines laid in the

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above judgments, this Court has to examine whether there was material to proceed against the petitioners. Admittedly, the second respondent is pressing the first

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petitioner for divorce. Admittedly after the marriage she lived in her matrimonial home hardly for about 6 months. Thereafter for about 12 years petitioner No.1 and the second respondent lived in Saudi Arabia. It is not her case that during her stay in Saudi Arabia, any other petitioners visited their house.

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Second respondent alleged that petitioner Nos.2 to 7 after the marriage harassed her for the sake of additional dowry. But, after lapse of 15 years, the complaint is purportedly filed on 19.04.2015. The FIR was registered on 20.04.2015 at 7.30 p.m. and was delivered to the Magistrate on 21.04.2015 at 11.00 a.m.

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Even in the complaint it is stated that she delayed filing of complaint expecting that the accused would come for a Panchayat/settlement. The particulars of time and place of cruelty by petitioner Nos.2 to 7 in connection with alleged demand of 25,00,000/- are absent.

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Crl.P.No.3140/2017

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Admittedly, petitioner Nos.5 and 6 the sisters of the first petitioner, were married much prior to the marriage of the petitioner and second respondent and living in far off places in their respective matrimonial homes. Admittedly, the other petitioners were also not living with the first petitioner and the second respondent.

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Then what is left with regard to the cruelty is the incident dated 19.04.2015 at 1.30 p.m. at Mangaluru. Neither the complainant nor any of the charge sheet witnesses impute any role to petitioner Nos.2 to 7 in the said incident. Therefore, on looking into the complaint and charge sheet material itself, it can be said that the case of petitioner Nos.2 to 7 is covered under paragraphs 108(1)(3)(5) and (7) of Bhajanlal’ s case and para 13 of Indian Oil Corporation’s case referred to supra and the proceedings against them are liable to be quashed.

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So far as the first petitioner, there are

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specific allegations that on a particular date, time and

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Crl.P.No.3140/2017

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place, he assaulted the second respondent and her brothers. He himself has filed complaint against the brothers of the second respondent alleging assault on him at the same time and place. Therefore, Crime Nos.15/2015 and 36/2015 are the case and counter cases. Who were the agressors has to be decided on trial. Under the circumstances, so far as the first petitioner it is not a fit case to quash the proceedings. Therefore the petition is partly allowed.

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The proceedings in C.C.No.66/2016 on the file of the III Addl. JMFC Court at Mangaluru in Crime No.15/2015 against petitioner Nos.2 to 7 are hereby quashed. The petition of the first petitioner is dismissed.

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Sd/JUDGE

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akc

Mohammed Rafi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mohammed Rafi v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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