Partly allowed

Jameel Ahamad S/O Mehaboob Sab Punekar v. Smt. Rubina D/O Raje Sab Muddebihal

Karnataka HC7 Nov 2023CRL.P/101128/2023

Case brief

AI extract

What is this about?

High Court allowed criminal petition under Section 482 Cr.P.C partly. Quashed orders referring private complaint for bigamy offences to police for investigation and consequent FIR. Directed Magistrate to proceed under Section 200 Cr.P.C as Sections 494/495 IPC require private complaint.

What did the court decide?

Quashed orders referring complaint to police; quashed FIR and notice; directed Magistrate to proceed under Section 200 Cr.P.C.

Jameel Ahamad S/O Mehaboob Sab Punekar Vs Smt. Rubina D/O… — Quashing and FIR | Karnataka HC (2023)

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 101128 OF 2023

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BETWEEN:

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JAMEEL AHAMAD S/O MEHABOOB SAB PUNEKAR, AGE. 41 YEARS, OCC. BANK EMPLOYEE, R/O. DARGA ROAD, BARA TANG MASJID, SHAKTI NAGR, BIJAPURA, PRESENTLY WORKING AT KVG BANK, KHEDAGI BRANCH, TQ. INDI, DIST. VIJAYAPURA.

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… PETITIONER

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(BY SRI. S.S. YADRAMI, SR. COUNSEL FOR KUM. PALLAVI MOHAN PALEKAR, ADVOCATE)

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AND:

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VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Date: 2023.11.10 11:48:31 +0530

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SMT. RUBINA D/O RAJE SAB MUDDEBIHAL, AGE. 40 YEARS, OCC. LECTURER IN GOVT. POLYTECHNIC GOVT. POLYTECHNIC COLLEGE, SECTOR NO.43 NAVA NAGAR BAGALKOT-587103, AND ALSO AT. C/O. ABDUL HUSSAIN SHEIKH, HULYAL LAYOUT VINAYAK NAGAR, BAGALKOT-587101.

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THE STATE OF KARNATAKA, BY BAGALKOT TOWN POLICE, R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD-580011.

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… RESPONDENTS (BY SRI. PRAKASH N. HOSAMANE, ADVOCATE FOR R1; SRI. P.N. HATTI, HCGP FOR R2)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO ALLOW THE PETITION AND QUASH THE IMPUGNED COMPLAINT AND ANNEXURE-A AND IMPUGNED ORDER DATED 11.07.2022 REFERRING THE COMPLAINT TO 2ND RESPONDET

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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POLICE FOR INVESTIGATION FOR THE OFFENCES PUNISHABLE UNDER SECTION 494 AND 495 OF IPC AND THE IMPUGNED ORDER DATED 29.09.2022 RE REFERRING THE COMPLAINT FOR INVESTIGATION VIDE ANNEXURE-B AND THE IMPUGNED FIR REGISTERED BY RESPONDENT POLICE IN THIER P.S. CRIME NO.11/2022 FOR THE OFFENCES UNDER SECTION 494 AND 495 OF IPC VIDE ANNEXURE-C AND THE IMPUGNED NOTICE ISSUED UNDER SECTION 41 OF CR.P.C. DATED 18.04.2023 VIDE ANNEXURE-D AND ALL FURTHER PROCEDDINGS IN PCR NO.06/2022 PENDING ON THE FILE OF LERNED SENIOR CIVIL JUDGE AND CJM BAGALKOT.

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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 filed under Section 482 of Cr.P.C seeking quash of

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1. Complaint in P.C No.6/2022 (Annexure-A)

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1. The order dated 11.07.2022 referring a complaint of respondent No.2/Police for investigation for offences punishable under Section 494 and 495 of IPC and the impugned order dated 29.09.2022 referred a complaint for investigation.

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1. FIR registered by respondent No.2/Police in Bagalkote Town Police Station in Crime No. 11/2022 for offences punishable under Section 494 and 495 of IPC

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1. Notice issued under Section 41 of Cr.P.C on 18.04.2023 .

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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1. All further proceedings in P.C.No.6/2022 pending on the

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file of the learned Senior Civil Judge and CJM, Bagalkote.

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Heard learned Senior Counsel for the petitioner,

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learned counsel for respondent No.1 and learned High Court Government Pleader for respondent No.2-State.

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Respondent No.1 has filed a complaint in P.C.No.6/2022 against the petitioner and another under Section 200 of Cr.P.C for offences punishable under Section 494 and 495 of IPC. On receipt of the said complaint the learned Senior Civil Judge and CJM, Bagalkote has referred the complaint under Section 156(3) of Cr.P.C to PSI, Bagalkote Town Police Station for investigation by order dated 11.07.2022. The police returned the said complaint stating that they have no jurisdiction to investigate offences punishable under Section 494 and 495 of IPC and the offence has taken place in Akkalakote, Maharastra District. Thereafter, learned Senior Civil Judge and CJM, Bagalakote by order dated 29.09.2022 has re-referred the complaint to PSI, Bagalkote Town Police Station under Section 156(2) of Cr.P.C for investigation. The Bagalkote Town Police Station

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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on receipt of the said complaint sent by the learned Senior Civil Judge and CJM, Bagalkote registered case in crime No.11/2022 against the petitioner and another for offences punishable under Section 494 and 495 of IPC. Thereafter, the Bagalkote Town Police have issued notice to the petitioner and another under Section 41 of Cr.P.C dated 18.04.2023 to appear before the police for enquiry. The petitioner sought above said reliefs in this petition.

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Learned Senior Counsel for the petitioner would contend that the investigation of the offences punishable under Section 494 and 495 of IPC cannot be referred to the Police and as per Section 198 of Cr.P.C the Court has to take cognizance only upon receipt of complaint made by some person aggrieved. He further contend that the Magistrate has to follow procedures under Section 200 Cr.P.C and investigation by police under Section 155(2) of Cr.P.C is not permissible and on that he relied on the decision of the Division Bench of this Court in the case of State of Karnataka Vs Byraiah - ILR 1987 Karnataka 730 and on that point he also placed reliance on decision of the Coordinate Bench of this Court in the case of State of

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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Karnataka Vs Chandrakantha Mogera and Ors - ILR

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1999(6) Karnataka 3006.

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He also contend that the alleged second marriage has taken place in Akkalkote, Sollapur District, Maharastra State and therefore, learned CJM, Bagalkote has no jurisdiction to take cognizance for the offences punishable under Sections 494 and 495 of IPC and per Section 177 of Cr.P.C “ Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed ”. He further contends that the petitioner has given divorce to respondent No.1 and therefore, the alleged offences are not attracted against the petitioner. With this, he prays to allow the petition.

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Per contra, learned counsel for respondent No.1 and learned High Court Government Pleader for respondent No.2-State would submit that the order of the learned Senior Civil Judge and CJM, Bagalkote referring a complaint to the Police for investigation under Section 156(3) of Cr.P.C is not in accordance with law. They further contend that as per Section 182(2) of Cr.P.C, the Senior Civil Judge and

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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CJM, Bagalkote is having jurisdiction since, the petitioner is last resided with respondent No.1 in Bagalkote and respondent No.1 is taken permanent resident in Bagalkote. With this, they prayed for directing the learned Senior Civil Judge and CJM, Bagalkote to follow procedures as contemplated under Section 200 of Cr.P.C.

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Respondent No.1 has filed private complaint in P.C.No.6/2022 against the petitioner and another under Section 200 of Cr.P.C for offences punishable under Section 494 and 495 of IPC. As per averments in the said complaint the petitioner has married one Haseena(accused No.2 in P.C.No.6/2022) during subsistence of his marriage with respondent No.1. The offences alleged against the petitioner and another in the said private complaint are offences punishable under Section 494 and 495 of IPC. As per Section 198(1) of Cr.P.C “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code(45 to 1860) except upon a complaint made by some person aggrieved by the offence.” In view of the said provision respondent No.1 has filed private complaint under Section 200 of Cr.P.C.

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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Learned Senior Civil Judge and CJM, Bagalkote on receipt of the said complaint filed by respondent No.1 ought to have followed procedures under Section 200 of Cr.P.C, in view of the decision of the Division Bench of this Court in the case of State of Karnataka Vs Byraiah in ILR 1987 Karnataka 730 (Supra) and State of Karnataka Vs Chandrakantha Mogera and Ors in ILR 1999(6) Karnataka 3006 (Supra). On receipt of a complaint the Magistrate himself has to take cognizance and go on with the case and follow the procedure under Section 200 of Cr.P.C. The learned Senior Civil Judge and CJM, Bagalkote has erred in referring and re-referring the complaint filed by respondent No.1 to the Police for investigation. Therefore, the said orders dated 11.07.2022 and 29.09.2022 and consequent registered FIR in Bagalkote Town Police Station in Crime No.11/2022 for investigation for offences punishable under Sections 494 and 495 of IPC and issuance of notice under Section 41 of Cr.P.C on 18.04.2023 by respondent No.2/Police to the petitioner are not sustainable and they are required to be quashed.

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NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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Learned Senior Counsel for the petitioner has contend that the alleged second marriage has taken place in Akkalakote, Solapur District, Maharastra State and the Court of learned Senior Civil Judge and CJM, Bagalkote has no jurisdiction to entertain the complaint. In view of the said contention it is necessary to refer provisions under Section 182 of Cr.P.C which reads as under

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“(1) Any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.”

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(2) Any offence punishable under Section 494 or Section 495 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender

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9 - NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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last resided with his or her spouse by the first marriage or the wife by first marriage has taken up permanent residence after the commission of offence.”

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In view of Section 182(2) of Cr.P.C “ Any offence punishable under Section 494 or Section 495 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage or the wife by first marriage has taken up permanent residence after the commission of offence.”

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In para No.9 of P.C.No. 6/2022, respondent No.1 has stated that she is working in Bagalkote Government Polytechnic College as Lecturer and she is permanent resident of Bagalkote District. Respondent No.1 who is wife by first marriage has taken permanent residence in Bagalakote after the commission of offence. In view of the same, the learned Senior Civil Judge and CJM, Bagalkote is having jurisdiction to entertain complaint for offences punishable under Sections 494 and 495 of IPC. In view of the above, following

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10 - NC: 2023:KHC-D:12985 CRL.P No. 101128 of 2023

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ORDER

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The petition is allowed in part.

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Impugned orders dated 11.07.2022 and 29.09.2022 passed by the learned Senior Civil Judge and CJM, Bagalkote referring the complaint for investigation to respondent No.2/Police, FIR in Bagalakote Town Police Station in Crime No.11/2022 registered for offences punishable under Section 494 and 495 of IPC and notice issued by respondent No.2/Police under Section 41 Cr.P.C dated 18.04.2023 to the petitioner are hereby quashed.

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The learned Senior Civil Judge and CJM, Bagalkote is directed to proceed with P.C No.6/2022 by following procedures under Section 200 of Cr.P.C.

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Sd/JUDGE

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DSP CT:BCK List No.: 1 Sl No.: 19

Jameel Ahamad S/O Mehaboob Sab Punekar v. Smt. Rubina D/O Raje Sab Muddebihal

Case brief

What is this about?

What did the court decide?

Jameel Ahamad S/O Mehaboob Sab Punekar v. Smt. Rubina D/O Raje Sab Muddebihal

Case brief

What is this about?

What did the court decide?

What the court decided

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