Allowed

Mohammad Salim S/O Amirsab Mujawar v. the State of Karnataka

Karnataka HC11 Dec 2023CRL.P/100765/2023

Case brief

AI extract

What is this about?

Criminal petitioner sought quashing of FIR and complaint under Section 482 Cr.P.C. regarding Section 498A and other IPC offences. The High Court held that since the complaint lacked a supporting affidavit, violating directions for Section 156(3) Cr.P.C. cases, the proceedings amounted to abuse of process and ordered quashing.

What did the court decide?

Complaint and FIR in Crime No.8/2023 of Sirsi New Market Police Station quashed so far as the petitioners are concerned.

Mohammad Salim S/O Amirsab Mujawar Vs the State of… — Quashing and FIR | Karnataka HC (2023)

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NC: 2023:KHC-D:14479 CRL.P No. 100765 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF DECEMBER 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 100765 OF 2023

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BETWEEN:

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MOHAMMAD SALIM S/O AMIRSAB MUJAWAR, AGE. 42 YEARS, OCC. PRIVATE EMPLOYEE, R/O. KALAMMA NAGAR, YELLAPUR, DIST. UTTAR KANNADA, PIN-581359.

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SMT. KHATUNABI W/O AMIRSAB MUJAWAR, AGE. 70 YEARS, OCC. HOUSEHOLD, R/O. KALAMMA NAGAR, YELLAPUR, DIST. UTTAR KANNADA, PIN -581359.

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MOHAMMAD JAFAR S/O AMIRSAB MUJAWAR, AGE. 46 YEARS, OCC. PRIVATE EMPLOYEE, R/O. KALAMMA NAGAR, YELLAPUR, DIST. UTTAR KANNADA, PIN-581359.

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… PETITIONERS

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(BY SRI. T.R. PATIL, ADVOCATE)

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VIJAYALAKSHMI M KANKUPPI

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Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.12.16 11:11:59 +0530

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AND:

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THE STATE OF KARNATAKA, SIRSI NEW MARKET P.S., R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENCH DHARWAD, PIN-580011.

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SMT. RUKHAYYABI W/O MAHMMAD SALIM MUJAWAR, R/O. SONIYAGALLI, KASTURABA NAGAR, SIRSI, DIST. UTTARA KANNADA, PIN -581402.

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… RESPONDENTS

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(BY SRI. P.N. HATTI, HCGP FOR R1; SRI. VAGEESH R. HEGDE, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED U/EC. 482 OF CR.P.C. SEEKING TO QUASH THE COMPLAINT AND FIR DATED 01.02.2023 AND CRIME NO.08/2023 OF SIRSI NEW MARKET P.S. (IN PRIVATE COMPLAINT NO.14/2023) PENDING ON THE FILE OF THE COURT OF I ADDL. CIVIL JUDGE AND J.M.F.C. COURT, SIRSI FOR AN OFFENCE P/U/SEC. 498-A, 354, 323, 504, 506, 147 R/W 34 OF IPC IN SO FAR THE PETITIONERS HEREIN/ARRAYED AS ACCUSED NOS. 1 TO 3 RESPECTIVELY, IN THE INTEREST OF JUSTICE.

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

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ORDER

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This petition is filed praying to quash the complaint and FIR dated 01.02.2023 in Crime No.8/2023 of Sirsi New Market Police Station (PC No.14/2023) registered for the offences punishable under Sections 498A, 354, 323, 504, 506 and 147 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘the IPC’, for short) so far as the petitioners are concerned.

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Heard the learned counsel appearing for the petitioners, the learned High Court Government Pleader appearing for respondent No.1-State and the learned counsel appearing for respondent No.2.

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Respondent No.2 filed PC No.14/2023 on the file of the learned I Additional Civil Judge and JMFC, Sirsi,

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against these petitioners and another for offences under Section 498A, 354, 323, 504, 506 and 147 read with Section 34 of IPC. The learned Magistrate by his Order dated 27.01.2023 acting under Section 156(3) of Cr.P.C. referred the complaint to the jurisdictional police for investigation. The jurisdictional police i.e., Sirsi New Market Police, after receipt of the complaint, registered the same in Crime No.8/2023 for the aforesaid offences arraying the petitioners as accused Nos.1 to 3 and another as accused No.4. The petitioners have sought quashing of said FIR and the complaint.

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The learned counsel appearing for the petitioners would contend that, the allegations made in the complaint by respondent No.2 are false. The husband of respondent No.2 i.e., petitioner No.1 is not residing in India and he went to Abroad after 27 days of marriage. The said complaint filed by respondent No.2 is not supported by the affidavit of respondent No.2 as required. On that point, he places reliance on the decisions of the Hon’ble Apex Court in the case of Priyanka Srivastava and another v. State of

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Uttar Pradesh and others¹ and Babu Venkatesh and others

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v. State of Karnataka and another² and on the decision of

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the Co-ordinate Bench of this Court in the case of Sri.Sheshanna B. v State of Karnataka³ . He contends that the learned Magistrate, without there being compliance with regard to filing an affidavit by respondent No.2, has exercised his powers under Section 156(3) of Cr.P.C. and therefore, the proceedings initiated against the petitioners are required to be quashed.

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The learned counsel for respondent No.2 and the learned Government Pleader both would contend that the husband of respondent No.2 left her after 27^th day of marriage and went to Abroad and he did not keep up his promise of staying in India. Thereafter, she has been harassed by mother-in-law and family members of her husband and therefore she has filed the complaint against the petitioners. They contend that respondent No.2 earlier

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1 (2015) 6 Supreme Court Cases 287

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2 Criminal Appeal No.252/2022 decided on 18.02.2022

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3 Criminal Petition No.1627/2022 C/w Crl.P.Nos.145/2002 and 1462/2022 decided on 12.04.2022

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approached the police but they did not entertain her complaint and therefore she sent a complaint to the Superintendent of Police by registered post and as no action was taken by the police against the petitioners, she filed a complaint.

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Learned counsel for respondent No.2 submits that

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non-filing of the affidavit of respondent No.2 along with the complaint is an irregularity and it can be cured at any time. He prays for permitting respondent No.2 to file an affidavit.

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Having heard the learned counsel for the parties,

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the Court has perused the records and the decisions relied upon by the counsel for the parties.

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The marriage of respondent No.2 with the first petitioner has taken place on 07.11.2021. As per the averments made in the complaint, the first petitioner went to Kuwait on 27^th day after the marriage without informing respondent No.2-his wife. Thereafter, respondent No.2 started residing with accused No.2-mother-in-law (petitioner No.2) and was managing family expenses with the money

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brought by respondent No.2 from her parents. Even on enquiry with accused Nos.1, 3 and 4 over phone, they also asked her to bring money and ornaments from her parents. There is an allegation that petitioner Nos.1 and 2 were manhandling respondent No.2 and took her in a rented car to Sirsi, assaulted her with hands on 05.01.2023 that too near the house of her parents situated at a distance of 50 meters.

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The counsel for the petitioners has produced copy of the representation dated 28.12.2022 filed by 2^nd petitioner to Santavana Mahila Sahayavani Kendra making allegations against respondent No.2 and harassment meted out to her and threatening to file a complaint and to take their life. There is an endorsement on the said representation by Santavana Mahila Sahayavani Kendra for having received the said representation. As per the averments in the complaint, the alleged incident has taken place on 05.01.2023.

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The learned counsel for respondent No.2 has placed on record the representation dated 04.01.2023

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given by respondent No.2 before the Mahila Santawana Kendra, Yellapur. There is reference of filing representation by petitioner No.2 before the Santavana Mahila Sahayavani Kendra, Yellapur against respondent No.2. In the complaint, there is mention that accused No.1 came to India on 30.12.2022 but there is no mention of such averment in the representation given by respondent No.2 on 04.01.2023 to Mahila Santawana Kendra, Yellapur. Even in the complaint, there is no reference of respondent No.2 approaching Mahila Sahayavani Kendra, Yellapur, on 04.01.2023. The relief sought by respondent No.2 in the said representation dated 04.01.2023 is to restrain her husband from going Abroad and to stay with her in any other place other than Yellapur and to lead life. There is no allegation against the petitioners of harassing her in the said representation dated 04.01.2023. It appears that the complaint is filed on coming to know of petitioner No.1/accused No.1 coming to India to restrain him from going Abroad. Therefore, filing of the complaint by

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respondent No.2 against the petitioners is an abuse of process of law.

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The Co-ordinate Bench of this Court in the case of Sri. Sheshanna B. (supra), after referring to the judgments of the Apex Court in Priyanka Srivastava’s and Babu Venkatesh’s case (supra) and on the decision in the case of Krishna Lal Chawla v. State of U.P.⁴ has issued certain directions to the Magistrates which are as under:

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(a) The learned Magistrates shall look into the complaint and its narration with regard to compliance of Section 154(1) and (3) of Cr.P.C.

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(b) When complaints/applications are filed invoking Section 200 of the Cr.P.C. r/w Section 156(3) of the Cr.P.C. and a direction is sought at the hands of the learned Magistrates for investigation at the hands of the police, only such complaints shall accompany an affidavit and not otherwise, as time has come to ‘nip frivolous registration of crime, in its bud’.

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The Co-ordinate Bench in the said case noting

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non-compliance of filing of affidavit in support of the complaints/application invoking Section 200 of CR.P.C. read

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4 (2021) 5 SCC 435

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with Section 156(3) of Cr.P.C., has quashed the

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proceedings.

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In the case at hand, the complaint filed by respondent No.2 is not supported by the affidavit of respondent No.2. The learned Magistrate invoking powers under Section 156(3) of Cr.P.C. has referred the matter to the jurisdictional Police for investigation. The learned Magistrate ought to have complied the directions issued in the aforesaid case. Therefore, the registration of FIR based on the complaint filed by respondent No.2 and the order passed by the learned Magistrate under Section 156(3) of Cr.P.C. requires to be quashed.

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The prayer of the learned counsel for respondent No.2 seeking permission to rectify the defect cannot be considered since it is held that filing of the complaint by respondent No.2 is an abuse of process of law.

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