Family Member Staying Seperately – 498A Quash

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 7th DAY OF FEBRUARY 2008

BEFORE

THE HON’BLE Dr. JUSTICE K. BHAKTHAVATSALA

CRIMINAL PETITION No. 1289/2006

BETWEEN:

1. Shivakumar Shetty,
S/o. T. Vittal Shetty,
Major,
R/o. ‘Sri Vasuki’,
Manial-Perampalli Road,
Ambagilu,
Santhekatte Post,
Udupi Taluk.

2. Balasubramnya Shetty,
S/o. T. Vittal Shetty,
Major,
R/o. ‘Sri Vasuki’,
Manial-Perampalli Road,
Ambagilu,
Santhekatte Post,
Udupi Taluk.

3. Sri. Jeenendra Shetty,
S/o. T. Vittal Shetty,
Major,
R/o. ‘Sri Vasuki’,
Manial-Perampalli Road,
Ambagilu,
Santhekatte Post,
Udupi Taluk.

4. Niranjan Shetty
S/o. T. Vittal Shetty,
Major,
R/o. ‘Sri Vasuki’,
Manial-Perampalli Road,
Ambagilu,
Santhekatte Post,
Udupi Taluk.

5. Shalika Shetty
W/o. Niranjan Shetty
Major,
R/o. ‘Vishwaroopa’,
Parapu, Nakre Road,
Karkala Taluk,
Udupi Dist.

6. T. Vittal Shetty,
S/o. late Thimmappa Shetty,
Major,
R/o. ‘Vishwaroopa’,
Parapu, Nakre Road,
Karkala Taluk,
Udupi Dist.

7. Savithri Shetty,
W/o. Vittal Shetty,
R/o. Parapu, Nakre Road,
Karkala Taluk,
Udupi Dist.

8. Geetha Shetty,
W/o. Sampathkumar Shetty,
Major,
Occ: Veterinary Inspector,
Kalya, Kaup Post,
Udupi Taluk & Dist.

9. Sampathkumar Shetty
S/o. Mr.Shetty
Major,
Occ: Veterinary Inspector,
Kalya, Kaup Post,
Udupi Taluk & Dist.

10. Mohini Shetty,
D/o. Gulabi Shetty,
Major,
R/o. Kotwalaguttu,
Uliyargoli Post,
Udupi Taluk & Dist.

11. Kum. Rohitha Shetty,
D/o Amba Shetty,
Major,
R/o. Adve, Nandikur via
Padubidri Post,
Palimaru,
Udupi Taluk & Dist.,
At present residing at
“Sri Vasuki:,
Manipel-Perampalli Road,
Ambagilu,
Santhekatte Post,
Udupi Taluk & Dist. …PETITIONERS

(By Sri. P. Prasanna Kumar, Adv.)

AND:

1. Smt. Anusuya,
W/o. Shivakumar Shetty,
Major,
Occ: Service,
C/o. Rajashekar,
Shiva Padma Compound,
N.H.No. 17,
Kundapura-576 201.

2. The State of Karnataka,
By Udupi Town Police Station,
Udupi,
Rep. by the SPP,
High Court Building,
Bangalore-560 001. …RESPONDENTS

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(By Sri. A. Ramakrishna, HCGP for R-2,
Sri.A.Anand Shetty &
Sri.N.Rajashekar, Advs. For R-1)

This Criminal Petition is filed under Section 482 Cr.P.C., praying to set aside the order dt.28.1.06 passed in Cr.RP No.70/05 on the file of the S.J, Udupi, thereby dismissing the revision petition filed by the petro, & confirming the order dt.20.7.05 in C.C.No.5043/02 on the file of the Addl.C.J (Jr.Dn) & JMFC, Udupi & quash the entire proceedings pending thereon.

This Criminal Petition coming on for admission, this day, the Court made the following:-

ORDER

The petitioners/Accused Nos.1 to 11 in C.C.No.5043/2002 on the file of JMFC at Udupi, are before this Court under Section 482 of Cr.P.C., praying for quashing the proceedings for the offence under Sections 323, 406, 498(A), 504 and 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of Dowry Prohibition Act.

2. Heard arguments for final disposal.

3. The brief facts of the case leading to the filing of the petition may be stated as under;

The Respondent No.1/complainant filed a private complaint in P.C.R.No.716/2000 on the file of JMFC at Udupi, alleging that the accused have committed offence under Sections 323, 406, 498(A), 504, 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of the Dowry Prohibition Act. The learned Magistrate referred the matter for investigation and report under Section 156(3) of Cr.P.C. The police, after investigation, laid charge-sheet against Accused No.1/husband, Accused No.3/brother of the Accused N.1 and Accused No.11/distant relative of Accused N. 1 for the offence under Section 498(A). As against that report, the complainant filed a protest petition. The learned Magistrate, again referred the matter to Dy.S.P for further investigation. The Dy.S.P also, after investigation, filed a report stating that the report already filed is correct. But the learned Magistrate, after perusing the protest petition, taken cognizance for the offence under Sections 323, 406, 498(A), 504, 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of the Dowry Prohibition Act and ordered to issue process. Therefore, the petitioners are before this Court, praying for quashing the proceedings.

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4. The learned counsel for the petitioners submita that the Respondent No.1/complainant is working as a Superintendent in Social Welfare Department and the marriage of the complainant with the Accused No.1 is a love marriage and their marriage was performed on 26.12.1993. The present complaint came to be filed on 13.11.2001. There was no issue out of the marriage. He further submits that as per the averment of the complaint I Para No.3, the complainant and her husband were living separately in a rented house, but the other accused used to visit her house and instigate the Accused No.1 to ask for dowry and to ill-treat the complainant. The allegation that the relatives of the Accused No.1 often visited the house of the complainant and the statement that they instigated Accused No.1 is a bald statement. He also submits that the relatives of the Accused No.1 did not oppose the marriage of the complainant with the Accused N.1. Since the complainant herself is a Government servant, the question of any demand for dowry is false. Therefore, he prays for quashing the proceedings against the petitioners.

5. The learned counsel for the Respondent No.1/complainant submits that the averments made in the complaint are true and correct and it is only in evidence she will be in a position to prove her case and at this stage, it cannot be said that the complainant has not made out a prima facie case for the offences alleged against the accused.

6. In the light of the arguments addressed by the learned counsels for the parties, it is crystal clear that the marriage of the complainant with the Accused No.1 was a love marriage and they were living separately in a rentd house. Under such circumstances, the allegation that Accused Nos.2 to 11 were frequently visiting the house of the complainant and they instigated Accused No.1 to demand dowry and ill-treat her, is nothing but a self-serving statement with an intention to harass them. In my view, the complainant has not made out a prima facie case for the offences alleged against the Accused Nos.2 to 11. In so gar as the Petitioner No.1/Accused No.1 is concerned, there appears to be a prima facie case for the alleged offences. I see no good ground to quash the proceedings as against Accused No.1.

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7. For the reasons stated supra, the petition in so far as Petitioners 2 to 11 (Accused Nos.2 to 11) is allowed. The Petitioner No1’s petition is rejected and the proceedings in C.C.No.5043/2002 on the file of JMFC at Udupi, for the offence under Sections 323, 406, 498(A), 504 and 506(2) read with Section 34 of IPC and under Sections 3, 4 and 6(A) of Dowry Prohibition Act as against Petitioners 2 to 11(Accused Nos.2 to 11), is quashed.

Sd/-
Judge
bnv*

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