Dismissed

Priyanka W/O Nishan Dodagoudar v. the State of Karnataka

Karnataka HC15 Sept 2022CRL.P/100483/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a petition under Section 407 of Cr.P.C. seeking transfer of a criminal case. The petitioner, residing in the USA, failed to file a mandatory affidavit supporting her allegations of threat, distinguishing cited precedents as inapplicable due to concealment of her location and lack of proof of harassment.

What did the court decide?

The petition seeking transfer of the criminal case under Section 407 of Cr.P.C. is dismissed.

Priyanka W/O Nishan Dodagoudar Vs the State… — Civil Procedure and Limitation | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 15^TH DAY OF SEPTEMBER, 2022 BEFORE

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THE HON’BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL PETITION No.100483 OF 2022

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BETWEEN

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PRIYANKA W/O NISHAN DODAGOUDAR AGE. 30 YEARS, OCC. NIL, R/O. NO. 1420/38, MATA KRUPA A-BLOCK, SARASWATI NAGARA, DAVANGERE

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...PETITIONER

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(BY SRI. S. S. YADRAMI, SENIOR COUNSEL FOR SRI. RAKESH S HATTIKATAGI, ADVOCATE)

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AND

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1 . THE STATE OF KARNATAKA BY MAHILA POLICE STATION BELAGAVI REPRESENTED BY ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA DHARWAD BENCH – 580011

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2 . NISHAN S/O NAGARAJ DODAGOUDAR AGE. 34 YEARS, OCC. SOFTWARE ENGINEER, PERMANENT RESIDENT OF PLOT NO. 2305, RAMTEERTHANAGARA, BELAGAVI 590001.

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…RESPONDENT

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(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1; SRI. B. S. KUKANAGOUDAR, ADV., FOR R2)

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THIS CRIMINAL PETITION IS FILED U/S 407 OF CR.P.C., SEEKING TO TRANSFER THE CRIMINAL CASE NO.450/2021 PENDING ON THE FILE OF II ADDITIONAL JMFC COURT BELAGAVI TO THE COURT OF PRINCIPAL JMFC DAVANAGERE FOR TRIAL AND DISPOSAL IN ACCORDANCE WITH LAW.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 06.09.2022, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, who is complainant in C.C.No.450/2021 on the file of the II-Additional JMFC

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Court, Belagavi has filed this petitioner under Section 407 of Cr.P.C. to transfer the said case to the court of Principal JMFC, Davanagere for trail and disposal.

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The contention of the petitioner is that her marriage with respondent No.2 took place on 14.12.2017 at Davanagere. At the time of marriage, her father spent Rs.20,00,000/- for her marriage and cash of Rs.15,00,000/-, gold ornaments weighing 15 tolas, silver article weighing 3 kg and Rs.10,00,000/- towards purchase of marriage cloths were given to respondent

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No.2 as dowry. It is alleged that immediately after the marriage, respondent No.2 and his family members started harassing and ill-treat the petitioner to bring additional dowry and in fact Rupees 8 to 10 Lakhs was paid by the petitioner’s father to respondent No.2 and with the same he purchased stocks and after selling the said stocks, out of the returns, he purchased a house at U.S.A.

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2.1. The petitioner has alleged that in spite of all this, respondent No.2 and his family members were not happy and therefore, without any alternative she filed a complaint against him, his parents and sister before Davanagere Police. However, Davanagere Police have transferred the said case to Belagavi police and after conducting investigation, Belagavi Police have filed charge sheet only against respondent No.2. However, his parents and sister were non-chargesheeted. Alleging that there is a threat to her life, the petitioner is seeking transfer of the criminal case to Davanagere.

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Learned HCGP took notice for respondent

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No.1.

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Respondent No.2 appeared before the Court

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through his counsel and filed objections admitting the marriage between petitioner and respondent No.2. However, he has denied that at the time of marriage, there was any demand for dowry by him and his family members and payment of the same as detailed in the complaint. Respondent No.2 has specifically pleaded that after the marriage, petitioner hardly stayed for a week in the house of respondent No.2 at Belagavi and the remaining period was spent for taking Visa and also for some time they stayed together at Davanagere and thereafter they left for U.S.A. They stayed together for two years at U.S.A.

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4.1. There was no demand for any dowry and unnecessarily to harass respondent No.2 and his family members, the petitioner has chosen to file false complaint. Based on the point of jurisdiction, the

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Davanagere Police have transferred the case to Belagavi Police and accordingly the jurisdictional police have conducted investigation and filed charge sheet only against respondent No.2. The parents and his sister, who is a medical student, are rightly non-charge sheeted. So far as petitioner seeking transfer of the case is concerned, respondent No.2 has specifically pleaded that on 25.07.2021 itself the petitioner has left to U.S.A. and now she is staying there and only to harass respondent No.2 and his family members, she has filed a false complaint and she has also filed Crl.Misc.550/2020 before the JMFC, Davanagere under Section 12 of the Protection of Women from Domestic Violence Act. These petitions are filed as a counter-blast to the divorce sought by respondent No.2 in MC No.191/2020 for dissolution of marriage before the Family Court, Belagavi.

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4.2. Respondent No.2 has denied that there is a

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threat to the life of petitioner or her family members for

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attending the case before the Trial Court at Belagavi. In fact, the said case has reached the stage for evidence and in one or two hearing dates, the recording of evidence of the petitioner and her parents may be completed. On the other hand, majority of witnesses are from Belagavi and it is the respondent and other witnesses, who would be put to more difficulty. Similar petition filed by the petitioner seeking transfer of M.C.No.191/2020 is rejected by this Court in Civil Petition No.100080/2021 dated 14.03.2022.

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Heard the arguments and perused the

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records.

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At the outset, it is relevant to note that it is mandatory for a petition filed under section 407 of Cr.P.C. to be supported by an affidavit or affirmation.

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The petitioner has not chosen to file such affidavit. In fact, the office has raised objection to that effect. The learned Senior Counsel representing petitioner submitted that he would get the affidavit from the

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petitioner from U.S.A. and file the same. However, this would not cure the defect. It is relevant to note that in a case for transfer of any criminal or civil proceedings, invariably there would be allegations of threat etc. and therefore, the law requires that such petition is to be supported by affidavit.

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Learned Senior Counsel arguing on behalf of

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the petitioner submitted that since the petitioner is in U.S.A. she could not file an affidavit in support of the petition. In support of his arguments, the learned Senior

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Counsel has relied on following decisions:

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1. In Sesamma Phillip and etc. vs. P. Phillip¹ (Sesamma’s Case)

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1. In Neelamma Kanwar v. Devinder Singh Kanwar² (Neelamma’s case)

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1. In Smt. Mauna M. H. W/o. Shivaprasad v. K. G. Mahesh Murthy³ (Mauna’s Case)

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1 (1973) 1 SCC 405

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2 2010 (10) SCC 589

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3 Criminal Petition No.101443/2017

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Radesh Chandra Vs. State of Rajasthan⁴ .

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(Radhesh’s Case)

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It is pertinent to note that in the petition, the

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petitioner has not disclosed the fact of she being in U.S.A. She mentioned her occupation as nil. In civil petition, she has mentioned her occupation as housewife. In fact, while rejecting the Civil Petition No.100080/2021, the Co-ordinate Bench of this Court

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has observed that when the petitioner is able to travel from and to U.S.A. alone, it would not be difficult for her to travel to Belagavi for the purpose of giving evidence

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in the petition pending at Belagavi. The allegations that there is a threat to the life of petitioner is also not supported by any material. In fact, the petitioner is not ready to file an affidavit in support of such allegations. In the complaint, she has made allegations that respondent No.2 has retained her passport and marks cards. The very fact she has already reached U.S.A.,

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4 S.B.Crl.Misc.Petn.No.699/1994 decided on 19.05.1995 of Rajasthan High Court

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shows that it is a false allegation. In fact, the travel history report produced by respondent No.2 go to show that since 2018, several times she travelled out of country.

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On account of condition imposed while

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granting bail, though respondent No.2 is also employed in U.S.A., he is unable to go to U.S.A. to attend his work. If at all there is any difficulty for the petitioner to attend the Court for giving evidence, her evidence may also be recorded through V.C. Since in a criminal case the respondent No.2 is required to attend the Court on every date of hearing and also at the time of recording evidence, the comparative hardship would be more to respondent No.2. As rightly pointed out by the learned counsel for respondent No.2, most of the witnesses are from Belagavi. Therefore, it would also be difficult for the witnesses to travel to Davanagere.

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10. So far as Sheshamma’s, Neelamma’s and

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Mauna’s cases are concerned, on facts the transfer

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petition came to be allowed. However, in the present case, the petitioner has failed to prove that there is any justification for her to move this Court for transfer of petition and therefore, the principles laid down in the above cases are not applicable to the case on hand.

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In Radesh’s case , the Rajasthan High Court

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has held that since respondent therein has also filed a petition under section 482 of Cr.P.C., the said Court has observed that there is no need for filing of affidavit. However, in the present case, the petitioner has made serious allegations against respondent No.2. At the same time, she has concealed the fact that she is outside India and in the cause title she has shown her occupation as nil and going through all these aspects, it was necessary for her to file affidavit. Therefore, the Radhesh’s case relied upon by the petitioner is also not helpful to her case.

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Thus, from the above discussions, I am of the

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considered opinion that the intention of the petitioner is

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only to harass respondent No.2 in getting the petition transferred to Davanagere rather than prosecuting the same to its logical conclusion. Therefore, I hold that this is not a fit case to transfer the petition and accordingly,

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I proceed to pass the following:

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ORDER

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The petition is dismissed.

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In view of disposal of the matter,

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pending interlocutory applications, if any, do not survive for consideration and are

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disposed of accordingly.

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Sd/JUDGE

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YAN

Priyanka W/O Nishan Dodagoudar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Priyanka W/O Nishan Dodagoudar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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