Smt. Najarin W/O. Mehamood Reshmi Vs State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN C.C. NO.1793/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM COURT, BAGALKOT, DIST. BAGALKOT FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 323, 498A, 504, 506 READ WITH SECTION 34 OF THE I.P.C AND SECTIONS 3 AND 4 OF D.P. ACT AND SECTION 67 OF THE I.T. ACT, 2000 ON COMPLAINT FILED BY THE RESPONDENT NO.2 BY TAKING COGNIZANCE OF THE OFFENCE AND ISSUING SUMMONS TO THE ACCUSED, IN SO FAR AS IT RELATES TO PETITIONERS AND DISMISS THE COMPLAINT AGAINST THE PETITIONERS, AND ETC.

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THIS CRIMINAL PETITION IS COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)

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The petitioners/accused Nos.3 and 4 have filed this petition under Section 482 Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') praying to quash the entire proceedings in Criminal Case No.1793 of 2021 on the file of the learned Principal Senior Civil Judge and Chief Judicial Magistrate Court, Bagalkot, for the offences punishable under Sections 323, 498A, 504 and 506 read with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC'), under Sections 3 and 4 of the Dowry Prohibition Act, 1961, and under Section 67 of the Information Technology Act, 2000.

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For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The petitioners are accused Nos.3 and 4, respondent No.1 is the State and respondent No.2 is the de facto complainant.

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Brief facts of the prosecution case are as under:

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Accused No.1 is the husband of the de facto

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complainant. The marriage of accused No.1 and the de facto complainant was solemnised on 23-4-2017 and after the marriage, the relationship of accused No.1 and the de facto complainant was cordial for couple of years i.e., till 31-10-2020. Thereafter, accused Nos.1 to 4 allegedly began harassing the de facto complainant with respect to bring more dowry. Further, on 31-10-2020 at 9:30 a.m., accused Nos.1 to 4 quarrelled with the de facto complainant, voluntarily caused hurt, intentionally insulted her to provoke breach of peace and also made criminal intimidation to eliminate her. Hence, she lodged a complaint. On the basis of the complaint, respondent No.1-Police registered a case. The Investigating Officer completed investigation and filed the charge-sheet in Criminal Case No.1793 of 2021. Hence, the petitioners being accused Nos.3 and 4 have filed this petition seeking to quash the proceedings.

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Heard Sri Pranav Badagi, learned counsel for the petitioners, Sri Abhishek Malipatil, learned High Court Government Pleader for respondent No.1-State and Sri Shivashankargowda Patil, learned counsel for respondent No.2/ de facto complainant.

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The Learned counsel for the petitioners/accused Nos.3 and 4 contended that the petitioners are innocent of the alleged offences. They have been falsely implicated in this case and the allegations made in the complaint are in the nature of general and omnibus. There are no specific allegations against the petitioners, who are none other than sister-in-law and brother-in-law of the de facto complainant. Hence, he prayed to quash the proceedings.

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Learned High Court Government Pleader for

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respondent No.1-State and the learned counsel for respondent No.2/ de facto complainant have vehemently contended that the petitioners are involved in the offences

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punishable under Sections 323, 498A, 504 and 506 read

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with Section 34 of the Indian Penal Code, 1860, under Sections 3 and 4 of the Dowry Prohibition Act, 1961, and under Section 67 of the Information Technology Act, 2000, and there is prima-facie material against the petitioners. Therefore, at this stage, the proceedings cannot be quashed.

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On perusal of the material available on record, it appears that the learned Magistrate, after perusal of the charge-sheet material, took cognizance of the aforesaid offences and issued summons. From perusal of the complaint as well as the charge-sheet material, it appears that the de facto complainant made allegations against accused Nos.1 to 4. Accused No.3/petitioner No.1 is the sister-in-law of the de facto complainant, and accused No.4/petitioner No.2 is her husband. As per Column No.10 of First Information Report and Column No.17 of the charge-sheet it reveals that the petitioners have instigated accused No.1, husband of the de facto complainant, to commit the offence. Except some omnibus and general

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allegations, there are no specific allegations made against the petitioners, as to how and in what manner they subjected the de facto complainant to cruelty, both physically and mentally, and demand of dowry from her parental house.

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The Hon'ble Apex Court in the case of STATE OF

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ANDHRA PRADESH v. M. MADHUSUDHAN RAO

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reported in (2008) 15 SCC 582 at paragraph No.30 has held as under:

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“30. Time and again, the object and importance of prompt lodging the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious

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doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained."

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Further, the Hon'ble Apex Court in the case of

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KAHKASHAN KAUSAR Alias SONAM AND OTHERS v.

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STATE OF BIHAR AND OTHERS reported in (2022) 6 SCC 599 at paragraph No.18 has held as under:

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“18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 1-4-2019, 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

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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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In the absence of any material to show that the petitioners had subjected the de facto complainant to cruelty, both physically and mentally, and also allegation that there was demand for dowry from the parental home of the defacto complainant, hence, the cognizance taken by the learned Magistrate for the aforesaid offences is abuse of process of law. Further, the ingredients of Sections 504 and 506 of the IPC are also not established in this case. In fact, the prosecution has to show that the petitioners have intentionally insulted the de facto complainant, so as to give her provocation, intending or

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knowing that such provocation would likely result in a breach of the public peace or to commit any other offence. Thus, mere act of insulting a person would not satisfy the ingredients of Section 504 of the IPC.

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The Hon'ble Apex Court in the case of FIONA SHRIKHANDE V. STATE OF MAHARASHTRA AND ANOTHER reported in AIR (2014) SC 957 at paragraph Nos.13 and 14 has held as under:

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"13. Section 504 IPC comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential

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elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.

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14. We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 IPC. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 IPC."

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So far as Section 506 of the IPC is concerned, in

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order to satisfy the ingredients of offence of criminal intimidation, there has to be threat of injury to a person, reputation or property of the complainant by the accused, which should be the intention to cause harm to that person or to cause that person to do any act, which is not legally bound to do, or to omit to do so as to avoid the execution of such threat.

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13. In the case of MANIK TANEJA AND ANOTHER

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v. STATE OF KARNATAKA AND ANOTHER reported in

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(2015) 7 SCC 423 , the Hon'ble Apex Court had an occasion to examine the ingredients of Sections 503 and 506 of the IPC, wherein the observation made by the Hon'ble Apex Court is as under:

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"8. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is also for the Court to take into consideration any special

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features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue. Where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may quash the proceeding even though it may be at a preliminary stage."

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So far as Section 323 of the IPC is concerned, although the de facto complainant has made allegations against the petitioners, neither the de facto complainant, nor the Investigating Officer has furnished the Wound Certificate to show that the petitioners have voluntarily caused bodily injury to the de facto complainant.

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In the instant case, the prosecution has failed to establish the material against the petitioners. Hence, the de facto complainant does not establish the offences under Sections 323, 498A, 504 and 506 read with Section 34 of the Indian Penal Code, 1860, under Sections 3 and 4 of

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the Dowry Prohibition Act, 1961, and under Section 67 of

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the Information Technology Act, 2000, against the petitioners. In view of the above analysis, continuation of criminal proceedings against the petitioners/accused Nos.3 and 4 will be abuse of process of law. Accordingly, I pass the following

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O R D E R

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i. Criminal petition is allowed .

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ii. The proceedings in Criminal Case No.1793 of 2021 on the file of the Principal Senior Civil Judge and Chief Judicial Magistrate Court, Bagalkot, for the offences punishable under Sections 323, 498A, 504 and 506 read with Section 34 of the Indian Penal Code, 1860, under Sections 3 and 4 of the Dowry Prohibition Act, 1961, and under Section 67 of the Information Technology Act, 2000, in so far as the petitioners/accused Nos.3 and 4, are hereby quashed.

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