Partly allowed

Mr Salvador Fernandes v. the State of Karnataka

Karnataka HC10 Aug 2022CRL.P/3587/2022

Case brief

AI extract

What is this about?

In a criminal petition under Section 482 Cr.P.C. seeking quashing of proceedings under Sections 498A IPC and the Dowry Prohibition Act arising from matrimonial disputes, the Court distinguished between petitioners facing specific allegations and those subjected to general omnibus allegations. Proceedings against Petitioners 1, 5, and 6 were quashed due to lack of foundational facts, while proceedi

What did the court decide?

Quashed proceedings against Petitioners 1, 5, and 6; dismissed petition against Petitioners 2, 3, and 4.

Mr Salvador Fernandes Vs the State of Karnataka — Matrimonial and Divorce | Karnataka HC (2022)

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CRL.P No. 3587 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 3587 OF 2022

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BETWEEN:

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MR.SALVADOR FERNANDES S/O ALEX FERNANDES AGED ABOUT 77 YEARS R/AT NO.1652/1, NEAR ST.IGNATIOUS HOSPITAL PRABHATH NAGAR, HONNAVARA UTTARA KANNADA DISTRICT – 581 334.

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SMT. FULLA FERNANDES @ FLORINE FERNANDES W/O SALVADOR FERNANDES AGED ABOUT 67 YEARS R/AT NO.1652/1, NEAR ST.IGNATIOUS HOSPITAL PRABHATH NAGAR, HONNAVARA UTTARA KANNADA DISTRICT – 581 334.

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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SMT.GRETTA ALVAN LOUIS D/O SALVADOR FERNANDES W/O ALVAN JAMES LOUIS AGED ABOUT 48 YEARS R/AT B/75 CHEDDA COMPLEX NEAR CHARKOP VILLAGE CHARKOP VILLAGE KANDIVALI WEST, MUMBAI MAHARASTRA – 400 067.

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SRI ALVAN JAMES LOUIS AGED ABOUT 54 YEARS R/AT B/75 CHEDDA COMPLEX NEAR CHARKOP VILLAGE CHARKOP VILLAGE

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CRL.P No. 3587 of 2022

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KANDIVALI WEST, MUMBAI

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MAHARASTRA – 400 067.

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SMT.SUNITHA SALVADOR NORONHA D/O SALVADOR FERNANDES W/O ANIL NORMAN NORONHA AGED ABOUT 48 YEARS R/AT 4-61(2), KIRIYADKA HOUSE SHANTHI MANSION, BELLE VILLAGE PAMBOOR POST, SHIRVA, UDUPI – 574 116.

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SRI ANIL NORMAN NORONAH S/O WILIAM NORONAH AGED ABOUT 48 YEARS R/AT 4-61(2), KIRIYADKA HOUSE SHANTHI MANSION, BELLE VILLAGE PAMBOOR POST, SHIRVA, UDUPI – 574 116.

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…PETITIONERS

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(BY SRI MURTHY D., SR.COUNSEL FOR SRI ARIKESARI K.K., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA

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BANASAWADI POLICE STATION

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BENGALURU 560 043.

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REPRESENTED BY ITS S.P.P

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KARNATAKA HIGH COURT BUILDINGS HIGH COURT, BENGALURU – 560 001.

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SMT.NADIA NISHA D’SOUZA D/O BENZAMIN PAL D’SOUZA

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AGED ABOUT 34 YEARS

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R/AT NIRMALANIVASA

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3^RD MAIN ROAD, KEERTHI LAYOUT

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CRL.P No. 3587 of 2022

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OLD NEELAGIRIS ROAD KAMMANAHALLI BENGALURU – 560 084.

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…RESPONDENTS

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(BY SMT.K.P.YASHODHA, HCGP FOR R1; SRI MELANIE SEBASTIAN BY M/S TOMY SEBASTIAN ASSTS., ADVCOATES FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS AGAINST PETITIONER NO.1 TO 6/ACCUSED NO.2 TO 7 IN CR.NO.515/2020 WHICH IS NOW AS C.C.NO.53919/2021 PENDING ON THE FILE OF THE XI ACMM, MAYO HALL, BANGALORE FOR THE ALLEGED OFFENCES P/U/S 498A R/W 149 OF IPCA DN SEC.3, 4 OF D.P ACT.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court calling in question the proceedings in C.C.No.53919/2021 registered for offences punishable under Sections 498A r/w Section 149 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961.

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Heard the learned senior counsel Sri.Murthy.D.Naik appearing for petitioners, Smt.K.P.Yashodha, learned High Court Government Pleader for respondent No.1, and Sri.Melanie Sebastian, learned counsel appearing for respondent No.2.

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CRL.P No. 3587 of 2022

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Before embarking upon consideration of the case on its merits, I deem it appropriate to notice the relationship between the parties to the lis . Accused No.1 is the husband of the complainant, the 2^nd respondent who is not before the Court. Accused No.2 is the father-in-law, accused No.3 is the motherin-law, accused No.4 sister-in-law, accused No.5 is the husband of the said sister-in-law, accused No.6 another sister-in-law and accused No.7 is the husband of the said sister-in-law. Marriage between accused No.1 and the 2^nd respondent takes place on 29.10.2017 and it transpires that the couple after marriage shifted to Dubai on 14.11.2017 itself. The narration in the complaint would depict that the couple came back to India in the year 2020 and on 27.10.2020 an incidence of altercations or a squabble happens between the complainant, her family members and the petitioners herein. This leads to registration of a crime by both the mother-in-law of the 2^nd respondent and the 2^nd respondent. The mother-in-law of the 2^nd respondent registers a complaint on 17.12.2020 which becomes a crime in Crime No.259/2020 for offences under Sections 504, 506, 143, 147, 323, 448, and 354 of the IPC. Likewise, a little earlier on 26.11.2020 the complainant registers a complaint against the petitioners and her husband

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for offence punishable as afore-quoted. Therefore, two complaints spring from the incidents that takes place on 26.10.2020 and 27.10.2020.

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It transpires that the complaint registered by the mother-in-law of the complainant has resulted in police filing a charge sheet after investigation for the aforesaid offences and in the case at hand the police here again have filed a charge sheet for the offences punishable under Sections 498A r/w Section 149 of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act against all accused including husbandaccused No.1. Filing of the charge sheet is what drives the petitioners to this Court in the subject petition.

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Learned senior counsel Sri.Murthy.D.Naik would contend with vehemence that there are no allegations that would touch upon the offence that would become punishable under Section 498A of the IPC and therefore, the proceedings should be quashed, as the petitioners 1 and 2 are residing at Honnavara, petitioners 3 and 4 are residents of Maharashtra and petitioners 5 and 6 are residents of Udupi. The

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CRL.P No. 3587 of 2022

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complainant and the husband-accused No.1 were initially residing at Dubai and then come to India in the year 2020 and would submit that the entire charge sheet is based upon omnibus statements of all the witnesses and there is no semblance of truth in any of the allegations so made.

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On the other hand, learned counsel for the 2^nd respondent - complainant would refute the submissions to contend that the mother-in-law and the petitioners 3 and 4 were in fact present at the alleged scene of crime on 26.10.2020 and 27.10.2020 as they themselves had registered the complaint which has now resulted in charge sheet against the complainant and her family, though he would admit that there are no allegations against the father-in-law and accused Nos.6 and 7.

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Learned High Court Government Pleader would toe the lines of the 2^nd respondent.

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I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.

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CRL.P No. 3587 of 2022

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The afore-narrated facts are not in dispute and need not be reiterated. The subject criminal case arises out of a complaint which becomes a crime in Crime No.515/2020 by the 2^nd respondent-complainant. The complaint insofar as the first petitioner father-in-law and the petitioners 5 and 6 – accused Nos.6 and 7, sister-in-law and her husband have no foundational facts laid in the complaint with regard to the ingredients that would become offences punishable under Section 498A of the IPC and their names are not even mentioned with regard to any overt act performed by them.

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Insofar as petitioners 2, 3 and 4 are concerned, the mother-in-law, sister-in-law and her husband, there are allegations which would attract the ingredients of the offence punishable under Section 498A of the IPC, as the complaint clearly narrates that the sister-in-law and her husband were at the house of the mother-in-law on 26.10.2020 and had demanded dowry and had tortured the complainant. In fact, the mother-in-law has herself registered a complaint against the 2^nd respondent-complainant and her family members alleging assault and several other offences as afore-quoted.

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Therefore, the presence of the petitioners 2, 3 and 4 in the alleged scene of crime is and cannot be ruled out. Therefore, proceedings against them cannot be interjected or interfered with, as both the complaint and the charge sheet does narrate certain offences that would undoubtedly become an offence under Section 498A of the IPC.

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Insofar as petitioners 1, 5 and 6 are concerned as observed hereinabove, a close scrutiny of the complaint and summary of the charge sheet would indicate no offence that would permit further proceedings to be continued against them for an offence punishable under Sections 498A of the IPC and under Sections 3 and 4 of the Dowry Prohibition Act and permitting further proceedings to continue against them would run foul of the judgment of the Apex Court in the case of KAHKASHAN KAUSAR @ SONAM VS. STATE OF BIHAR¹

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wherein the Apex Court has delineated the aspect of the complainants dragging all the members of the family without there being any allegations against them. The Apex Court holds as follows:

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1 2022 SCC OnLine 162

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CRL.P No. 3587 of 2022

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“Issue Involved

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11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?

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12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives.

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13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr. (2018) 10 SCC 472, has observed:-

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“14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over

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CRL.P No. 3587 of 2022

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trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.”

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14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr. (2014) 8 SCC 273), it was also observed:-

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“4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-AIPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-AIPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.”

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15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr. (2010) 7 SCC 667, it has also been observed:-

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“32. It is a matter of common experience that most of these complaints under section 498AIPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

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33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents

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CRL.P No. 3587 of 2022

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should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498Aas a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

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34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

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35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.

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36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if

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CRL.P No. 3587 of 2022

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the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.”

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16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr. (2012) 10 SCC 741, it was observed:-

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“21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Raovs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

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“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes.”

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17. Recently, in K. Subba Rao v. The State of Telangana (2018) 14 SCC 452, it was also observed that:-

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“6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to

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matrimonial dispute sand dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.”

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18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

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19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.

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20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.

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21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.

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22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.”

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(Emphasis supplied)

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Therefore, finding some allegations against

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petitioners 2, 3 and 4, mother-in-law, sister-in-law and her

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CRL.P No. 3587 of 2022

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husband, I deem it appropriate to sustain the proceedings against them while permitting them to avail of such remedy as is available in law at the appropriate time and obliterate the proceedings against petitioners 1, 5 and 6, as permitting further proceedings against accused Nos.1, 5 and 6 would result in miscarriage of justice.

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For the aforesaid reasons, the following:

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ORDER

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(i) Criminal Petition is allowed in part.

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(ii) Criminal Petition, insofar as petitioners 1, 5 and 6 are concerned, is allowed and the impugned proceedings pending in C.C.No.53919/2021 pending before the XI Additional Chief Metropolitan Magistrate, Bangalore stands quashed.

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(iii) Criminal Petition, insofar as petitioners 2, 3 and 4 are concerned, is dismissed.

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(iv) It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioners under Section 482 of the Cr.P.C. This would not bind or influence the proceedings pending against the parties before any other Court.

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Sd/JUDGE

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BKP

Mr Salvador Fernandes v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Salvador Fernandes v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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