Partly allowed

Mohammed Nisham @ Nisham v. State of Karnataka

Karnataka HC11 Jul 2022WP/16494/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition partly. It quashed proceedings for rape, abduction by cheating, and cyber-offence charges due to failure to prove essential ingredients and delay. The case was remanded to the Magistrate for trial on remaining offences.

What did the court decide?

Quashing of proceedings under Sections 376, 354, 420 IPC and Section 66A IT Act; Transfer to Magistrate for other offences.

Mohammed Nisham @ Nisham Vs State of Karnataka — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JULY, 2022

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BEFORE

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THE HON’BLE Mr. JUSTICE HEMANT CHANDANGOUDAR

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WRIT PETITION No.16494 OF 2017 (GM-RES)

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BETWEEN :

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MOHAMMED NISHAM @ NISHAM S/O LATE ABDUL KHADER, AGED ABOUT 44 YEARS, R/AT AKKAPARAMBIL HOUSE, MUTTICHOOR, TRISUR DISTRICT, KERALA-680641

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...PETITIONER

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(BY SRI LETHIF.B, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY PULAKESHINAGAR POLICE, BENGALURU, REPRESENTED BY SPP HIGH COURT BUILDING, BENGALURU-560001

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MS.KARAN ALEX,

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D/O CAPT. ALEX A. MATHEW (RETD), AGED ABOUT 33 YEARS, FLAT NO.G-002, ELEGANT ASPIRE APARTMENT,

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COX TOWN, BENGALURU-560005

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...RESPONDENTS

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(BY SRI ROHITH B.J, HCGP, SRI ARJUN REGO, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CRIMINAL PROCEDURE CODE PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.1223/2016 (CRIME NO.254/2014) OF PULAKESHINAGAR POLICE, BENGALURU PENDING ON THE FILE OF ADDITIONAL LIII ADDL. CITY CIVIL AND SPECIAL JUDGE, BANGALORE (CCH-54) VIDE ANNEXURE-A AND ETC.

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THIS WRIT PETITION COMING ON FOR 'FURTHER HEARING' THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The 2^nd respondent lodged the First Information Report (FIR) on 24.07.2014 alleging that she was in a relationship with the petitioner/accused for the last two and half years and he abused and assaulted her and threatened to kill her. The police registered the FIR for the

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offences punishable under Sections 504, 506, 323, 324 and 354 of IPC.

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During the course of the investigation, the statement of the 2^nd respondent/informant was recorded and in the said statement, she has alleged that she was repeatedly raped by the petitioner/accused from June 2012 till the date of the alleged incident. The police after investigation submitted the charge sheet for the offence punishable under Sections 323, 324, 354, 504, 506, 420 and 376 of IPC and Section 66A of the Information Technology Act, 2000.

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The learned Magistrate after taking cognizance of the aforesaid offences committed the case to the learned Sessions Judge. Taking exception of the same, this petition is filed.

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Sri. B.V.Acharya, learned Senior counsel appearing for the petitioner would make the following submissions:

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a) The First Information Report was lodged on 24.07.2014, wherein the allegations of assault were made against the petitioner/accused and in the further statement which was recorded after two months from the date of registration of the FIR, the 2^nd respondent has alleged that the petitioner/accused had forcible sexual intercourse from 2012 to 2014 and she was forcibly made to terminate the pregnancy in the year 2012. Hence, the allegations made against the petitioner/accused in the further statement is an afterthought so as to falsely implicate the petitioner/accused.

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b) The 2^nd respondent had lodged the First Information report before the Ernakulam Central Police Station on 24.02.2013 alleging that she was abused and assaulted by the petitioner/accused. The FIR was lodged by the 2^nd respondent before the Ernakulam Central Police Station on 24.02.2013 alleging that the petitioner/accused by promising to marry her, assaulted and abused her in filthy language and he did not honour the said promise.

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Hence, he submits that the second FIR as well as the further statement is an afterthought so as to falsely implicate the petitioner/accused to wreak vengeance and with a revengeful intent. Hence, the charge sheet filed for the offence punishable u/s 376 and 420 IPC for the offences which is also the subject matter of investigation by the Ernakulam Central Police Station is an abuse of statutory power of investigation and infringes the right guaranteed under Article 21 of the Constitution of India.

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c) The allegations of the petitioner/accused having forcible sexual intercourse was made after two months from the date of registration of the FIR without offering any plausible explanation and in the absence of any explanation, the charge sheet filed against the petitioner/accused is without any substance.

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d) Hence, he submits that the allegations made in the impugned FIR as well as the further statement is an afterthought so as to falsely implicate the

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petitioner/accused to wreak vengeance and with a revengeful intent.

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On the other hand, learned counsel appearing for the 2^nd respondent makes the following submissions:

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a) The charge sheet material clearly discloses that the petitioner/accused by promising to marry her with an intention to cheat had forcible sexual intercourse which clearly constitutes the commission of offence punishable under Sections 420 and 376 of IPC. In support, he places reliance on the decisions of the Hon’ble Supreme Court in the case of DEELIP SINGH VS. STATE OF BIHAR reported in 2005 (1) SCC 88, DR.DHRUVARAM MURLIDHAR SONAR VS. STATE OF MAHARASHTRA AND OTHERS reported in AIR 2019 SC 327 and PRAMOD SURYABHAN PAWAR VS. STATE OF MAHARASHTRA AND ANOTHER reported in 2019 (9) SCC 608.

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b) The petitioner/accused is a habitual offender involved in commission of crimes and was also convicted for the offence punishable under Section 302 of IPC and is serving life imprisonment.

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c) The delay in alleging that petitioner/accused

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had forcible sexual intercourse was due to the inaction of the police in not recording the further statement immediately after registration of the FIR. The question of delay is a matter to be decided after full-fledged trial. In support he places reliance on the decisions of the Hon’ble Supreme Court in the case of P.RAJAGOPAL AND OTHERS VS. STATE OF TAMIL NADU reported in 2019 (5) SCC 403, RAMDAS AND OTHERS VS. STATE OF MAHARASHTRA reported in 2007 (2) SCC 170, DILWAR SINGH VS. STATE OF DELHI reported in 2007 (12) SCC 641, STATE OF PUNJAB VS.RAMDEV SINGH reported in 2004 (1) SCC 421 and STATE OF H.P. VS. GIAN CHAND reported in 2001 (6) SCC 71.

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I have considered the submissions made by the learned counsel for the parties.

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On 24.02.2013 the 2^nd respondent lodged a

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FIR before the Ernakulam Central Police Station alleging that the petitioner having promised to marry her in the

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month of January 2020, however, did not come forward to register the marriage and on 22.02.2013 the petitioner assaulted, abused, and threatened her with dire consequences and forcibly took the passport of 2^nd respondent. The FIR was lodged for the offences punishable under Sections 323, 324, 294B, 506(1), 354 of IPC.

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The present FIR was lodged by the 2^nd respondent on 24.07.2014 alleging that she was assaulted and abused by the petitioner/accused and the police registered the FIR for the offences punishable under Sections 504, 506, 323, 324, 354 of IPC. The 2^nd respondent has produced several communications addressed to the higher police and the also the State Women Commission complaining that the police have not recorded the further statement of the 2^nd respondent. It is only after the complaint was made with the higher officials, the police recorded the further statement on 22.09.2014 wherein she has alleged that the petitioner with an

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intention to cheat her, promised to marry and exploited her sexually and also forced to have sexual intercourse.

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The allegations of having forcible sexual

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intercourse by the petitioner/accused by promising to marry her was made in the further statement recorded on 22.09.2014 and in the FIR lodged before the Ernakulam Central Police Station on 24.02.2013 and in the FIR lodged on 24.07.2014 before the respondent police station, there was no allegation made against the petitioner/accused that he had sexual intercourse by promising to marry her with an intention to cheat. The specific allegation against the petitioner/ accused with regard to forcible intercourse and promising to marry her is an afterthought to wreak vengeance against the petitioner/accused and with revengeful intent. The perusal of the further statement under Section 161 of Cr.P.C. indicates that the consent of the de-facto complaint was not obtained by fraud and misconception of fact through a false promise of marriage

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to constitute the commission of offence punishable under Sections 420 and 376 of IPC.

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The FIR was lodged by the 2^nd respondent

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alleging that she was assaulted and abused by the petitioner/accused and the police registered the FIR for the offences punishable under Sections 506, 504, 323, 324 and 354 of IPC. To constitute the commission of offence punishable under Section 354 of IPC, there must be a specific allegation that the Petitioner must have assaulted or abused the de-facto complainant with criminal force intending to outrage or knowing, seems to be likely that will thereby outrage her modesty.

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In the present case, there is no material produced along with charge sheet that the

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petitioner/accused with an intention to outrage the modesty of 2^nd respondent has assaulted or abused her in filthy language. In the absence of any essential ingredients so as to constitute the commission of offence punishable under Sections 354 of IPC, the charge sheet filed for the

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offence punishable under Sections 354, 420 and 376 of IPC is impermissible.

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The validity of Section 66A of the Information Technology Act, 2000 has been struck down by the Hon'ble Apex Court in the case of SHREYA SHINGAL VS. STATE OF MAHARASHTRA reported in 2015 (5) SC 1 and in view of the same, the charge sheet filed against the petitioner/accused for the said offence is impermissible.

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Insofar it relates to offences punishable under 323, 324, 354, 504 and 506 IPC, charge sheet materials prima facie discloses the commission of the aforesaid offences and the various contentions raised by the Petitioner to substantiate the claim that the said allegations are falsie requires to be considered after full fledged trial.

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Accordingly, I pass the following:

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ORDER

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i. The writ petition is allowed in part.

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ii. The proceeding in S.C.1223/2016 pending on the file of LIII Additional City Civil and Special Judge, Bengaluru is hereby quashed insofar it relates to the offences punishable under Sections 376, 354, 420 of IPC and 66 A of the Information Technology Act.

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iii. The learned Sessions Judge to transfer the case to the learned Magistrate having jurisdiction to try the offences punishable under sections 323, 324, 354, 504 and 506 IPC.

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Sd/JUDGE

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Mohammed Nisham @ Nisham v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Mohammed Nisham @ Nisham v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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