Allowed

Shri Maheshwar S/O Shivanand Shankarappanavar v. the State of Karnataka

Karnataka HC6 Dec 2023CRL.P/103154/2022

Case brief

AI extract

What is this about?

High Court allowed criminal petition under Section 482 Cr.P.C. to quish proceedings in a matrimonial dispute involving Sections 498A and related IPC offences, finding the complaint to be an abuse of process due to malafide intentions and harassment during the pendency of divorce proceedings.

What did the court decide?

Proceedings in C.C.No.7635/2021 pending before the III Additional Civil Judge and JMFC, Hubballi, are quashed.

Shri Maheshwar S/O Shivanand Shankarappanavar Vs… — Matrimonial and Divorce | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:14281 CRL.P No. 103154 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^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. 103154 OF 2022 (482-)

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BETWEEN:

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SHRI. MAHESHWAR S/O SHIVANAND SHANKARAPPANAVAR, AGE. 41 YEARS, OCC. ENGINEER, R/O H.NO. 103, 1^ST FLOOR, SHRI. DATTA APARTMENT, APURVA NAGAR, 2^ND CROSS, HUBBALLI, NOW RESIDING AT: NO. 2624, RIGDE MONT HILL ROAD, CARY NORTH CAROLINA USA, R/BY HIS GENERAL POWER OF ATTORNEY HOLDER, SMT. RATNA W/O SHIVANAND SHANKRAPPANAVAR, AGE. 67 YEARS, OCC. ENGINEER, R/O H.NO.103, 1^ST FLOOR, SHRI DATTA APARTMENT, APURVA NAGAR, 2^ND CROSS, HUBBALLI-580020, DIST. DHARWAD.

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPIDate: 2023.12.11 11:17:06 +0530

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SMT. RATNA W/O SHIVANAND SHANKRAPPANAVAR, AGE. 67 YEARS, OCC. HOUSEHOLD WORK/ENGINEER, R/O H.NO.103, 1^ST FLOOR, SHRI DATTA APARTMENT, APURVA NAGAR, 2^ND CROSS, HUBBALLI-580020, DIST. DHARWAD.

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SMT. MAMATA W/O GIRISH HUGAR, AGE. 43 YEARS, OCC. DOCTOR, PERMANENT R/O. H.NO.103, 1^ST FLOOR, SHRI DATTA APARTMENT, APURVA NAGAR, 2^ND CROSS, HUBBALLI-580020, DIST. DHARWAD, NOW RESIDING AT: 2036, STAN WOOD, DR APEX, NORTH CAROLINA, USA 27502/4785

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… PETITIONERS

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(BY SRI. A.C. CHAKALABBI & SRI. S.B. DODDAGOUDAR, ADVOCATES)

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AND:

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THE STATE OF KARNATAKA, THROUGH WOMEN POLICE STATION, HUBBALLI, R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD-580001.

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SMT. SWAPNA W/O MAHESHWAR SANKRAPPANAVAR, AGE. 34 YEARS, OCC. PRIVATE SERVICE, R/O. C/O. SHIVAKUMAR AWATE, KALE BUILDING, DURGA COLONY, SAPTAPUR, DHARWAD-580008.

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… RESPONDENTS

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(BY SRI. P.N. HATTI, HCGP FOR R1; SRI. N.P. VIVEK MEHTA, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONERS IN CC NO.7635/2021 PENDING ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, HUBBALLI, FOR THE COMMISSION OF THE ALLEGED OFFENCES PUNISHABLE U/S 498(A), 323, 504, 506 R/W 34 OF IPC, 1860.

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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 entire proceedings in C.C.No.7635/2021, pending on the file of learned III Additional Civil Judge and JMFC, Hubballi registered for the offences punishable under Sections 498A, 323, 504 and 506 read with Section 34 of Indian Penal Code (hereinafter referred as ‘IPC’ for brevity).

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

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Respondent No.2 has filed First Information and the same came to be registered in Hubballi-Dharwad Mahila Police Station Crime No.40/2022 for the offences punishable under Sections 498A, 323, 504 and 506 read with Section 34 of IPC. The petitioners have been arrayed as accused Nos.1 to 3 in the charge-sheet. The police after investigation filed charge-sheet against petitioners for the offences punishable under Sections 498A, 323, 504 and 506 read with Section 34 of IPC. On the basis of said charge-sheet, a case came to be registered against these petitioners in C.C.No.7635/2022, pending on the file of learned III Additional Civil Judge and JMFC, Hubballi. The petitioners have sought quashing of the proceedings of said criminal case.

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Learned counsel for the petitioners would contend that the marriage of 1^st petitioner with respondent No.2 has taken place on 26.11.2016 and respondent No.2 after quarrel within 15 days went to her parents house and thereafter, petitioner No.1 i.e., husband of respondent No.2 left India and

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went to United States of America (for short ‘U.S.A’). Petitioner No.1 has filed petition seeking divorce on 14.03.2019 which is pending in M.C.No.17/2019. During the pendency of said divorce petition, there were conciliation and mediations to settle the dispute between 01.02.2020 to 26.03.2020 and at that time, petitioner No.1 has appeared through video conference to the said mediation from U.S.A. During the pendency of said divorce petition, respondent No.2 making false allegations has lodged First Information against the petitioners. Petitioner Nos.1 to 3 are residing in U.S.A and 3^rd petitioner is the citizen of U.S.A since 2004. The proceedings against the petitioners is abuse of process of law. He placed reliance on the decision of Hon’ble Apex Court in the Case of Kahkashan Kausar @ Sonam & Ors Vs State of Bihar & Ors¹ . With this, he prayed to allow the petition.

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Per contra, learned counsel for respondent No.2 and learned HCGP for respondent No.1 both submit that the police after investigation have filed charge-sheet against the petitioners for the offences punishable under Sections 498A, 323, 504 and 506 read with Section 34 of IPC. The Court

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1 2022 (6) SCC 599

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exercising powers under Section 482 of Cr.P.C., cannot hold mini trial. On that point, learned counsel for respondent No.2 has placed reliance on the decision of Hon’ble Apex Court in the

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case of State of Karnataka Vs M. Devendrappa and Another² , wherein it is held as under;

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“5. Aggrieved by the said Order directing quashing of the proceedings, this appeal has been filed. In support of the appeal, it is submitted by learned counsel for the State of Karnataka that the very approach of learned Single Judge is unjustified, illegal and erroneous. He was considering the desirability of continuing the proceeding. He has dealt with the matter as if he was holding a trial. The question whether there was any direct evidence or not is not really relevant at the stage of taking cognizance/framing of charges. Considering the limited scope of consideration in the background of powers exercisable under Section 482 of the Code, the order, it is submitted, is erroneous. Learned counsel for the respondents/accused persons, however, submitted that when there is no scope for conviction, the continuance of the proceedings would have been an abuse of the process of Court. Further, persons whose roles have been

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2 (2022) 3 Supreme Court Cases 89

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highlighted by learned Single Judge to show involvement having not been made accused persons, and having been only indicated to be witnesses, the trial, if any, would ultimately be of no consequence. In substance, it was, therefore, submitted that the order does not suffer from any infirmity to warrant any interference.

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Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of High Courts. All

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Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid aliqui concedit, concedere videtur et id sine quo res ipsae, esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised exdebite justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise serve the ends of justice. When

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no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

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In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of private complainant as unleash vendetta to harass any person needlessly. At the same time

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the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana and others vs. Ch. Bhajan Lal and others (AIR 1992 SC 604). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: -

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior

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motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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Learned counsel has also relied upon the decision of

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Hon’ble Apex Court in the case of Central Bureau of Investigation Vs Aryan Singh ETC³ , wherein it is held as under;

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“4.1. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the

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3 [2023] 2 S.C.R 891

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allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”.

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Learned counsel for respondent No.2 would contend that the version of complainant is supported by the statement of witnesses regarding harassment by the petitioners to respondent No.2. He contends that the 1^st petitioner at this stage also is ready to join her husband to lead marital life.

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Learned counsel for petitioners in reply has contended that the marriage between petitioner No.1 and respondent No.2 is not consummated as she stayed in the house of her husband only for few days and thereafter, she has not made any efforts to join her husband, even she has not got issued any notice in that regard.

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Having heard learned counsel for the parties, the Court has perused the charge-sheet material and documents produced by the parties.

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The marriage of 1^st petitioner with respondent No.2

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was solemnized on 26.11.2016. In the averments of the complaint it is stated that on 14.12.2016 her husband made a phone call and asked her not to come to his house otherwise he will kill her and for the said aspect there is instigation from his family members. The said aspect itself shows that respondent No.2 was residing in her parents’ house on 14.12.2016. Thereafter, on 16.12.2016, the petitioner No.1 went to USA. As per the averments of the complaint, as the parents of the petitioner No.1 did not allow the respondent No.2 in their house. She made phone call to her husband on 11.01.2018 on that time, it is alleged that he asked her to pay dowry to his parents otherwise they will not give visa and passport. In the averments of the complaint, it is stated that without taking respondent No.2 husband’s house and without allowing her to join her husband, they have cheated her. Even it is state in the complaint that on 17.02.2019, when she went to the house of her husband along with elders, when they did not allow her in their house stating that she has to bring dowry and in spite of her efforts, she could not contact her husband. The last incident in the complaint is that on 16.08.2020, on that day,

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when the respondent No.2 along with elders when went to the house of her husband, her mother-in-law told her that if she brings dowry she will entertain her in their house. In the pari materia with the said averments, the mother of respondent No.2 (C.W-4) and elders (CWs.5 to 8) have stated in their statements.

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It is material to note that the petitioner No.1 who is the husband of respondent No.2 went to USA on 16.12.2016. As per the averments of the complaint, prior to the said date, the respondent No.2 went to her parents’ house. The father of the petitioner No.1 died on 17.02.2019 and the petitioner No.1 had came to India at that time to attend funeral ceremony of his father. The petitioner No.1 has filed petition seeking divorce in M.C.No.79/2019 on 14.03.2019 and it was pending as on the date of filing of the complaint by respondent No.2 on 24.08.2020. The order sheet of M.C.No.79/2019 indicates that there was conciliation and mediation was going on and the petitioner No.1 attending the mediation through video conference, as he was in the USA. During pendency of the said divorce petition, the respondent No.2 has filed the complaint on 24.08.2020. The petitioner Nos.1 and 3 were not in India at the

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time of filing the complaint. In the petition seeking divorce the petitioner No.1 has sought divorce on the ground of physical and mental cruelty attributed by the respondent No.2 to the petitioner No.1 and his family members, which caused deterioration in the health of the father of the petitioner No.1 and he died on 17.02.2019. The respondent No.2 has not filed statement of objections to the divorce petition till 12.01.2021. Considering all these aspects, the respondent No.2 with an intention to harass the petitioners has lodged the complaint. The Hon’ble Apex Court in case of Kahkashan Kausar @ Sonam (supra) has observed as under:

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“14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State of Bihar and Anr., 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-A IPC 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-A IPC 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

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arrested under this provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.”

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Recently, in K. Subba Rao v. The State of Telangana, 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 matrimonial disputes and 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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The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A 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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Considering all these aspect, filing of complaint by respondent No.2 is abuse of process of law. Even on perusal of the charge sheet material and statement of witnesses, no case is made out for the offence alleged against them. Therefore proceedings against the petitioners are required to be quashed. In the result, the following:

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ORDER

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The petition is allowed.

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The proceedings against petitioners in

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C.C.No.7635/2021 pending on the file of the III Additional Civil Judge and JMFC, Hubballi, are quashed.

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Sd/JUDGE

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AM & AC CT:BCK List No.: 1 Sl No.: 27

Shri Maheshwar S/O Shivanand Shankarappanavar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Shri Maheshwar S/O Shivanand Shankarappanavar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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