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498A filled in personal vengeance and intended to harass, Quashed with u/s.482

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF MARCH 2017

BEFORE

THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION NO.2722 OF 2015

BETWEEN:

1. Naveen Kumar J.,
S/o. P Javara Setty,
Aged about 31 years,
Occ: Consultant in RBS,
No.117, Chester Road,
Seven Kings, Ilford, Essex – IG3 8PX, United Kingdom.

Also residing at,
No.439, III Main, 4th Cross,
AMS Layout,
Vidyaranyapura,Bengaluru – 560 097

2. Smt. Rathnamma,
W/o. P Javara Setty,
Aged about 53 years,
Residing at No.439,
4th Cross, AMS Layout,
Vidyaranyapura,Bengaluru – 560 097… Petitioners

(By Sri.K.B. Monesh Kumar, advocate For Smt. Vijetha R Naik, advocate)

AND:

1. State of Karnataka
Through Vidyaranyapura
Police Station,
Rep. by State Public Prosecutor,
High Court of Karnataka Bldg., Bengaluru – 560 001.

2. Smt. R. Shruthi,
W/o J. Naveen Kumar,
Aged about 24 years,
R/at No. 1516/B (46/3),
“Rajavasantha”, 2nd Floor,
8th Main Road, A Block, 2nd Phase,
Rajajinagar,Bengaluru – 560 010….Respondents

(By Sri. Vijayakumar Majage, Addl. SPP for R-1
Sri. Y.R. Sadasiva Reddy Senior Advocate for R-2)

This Criminal petition is filed U/S.482, Cr.P.C
praying that this Hon’ble Court may be pleased to quash
the entire proceedings in C.C.No.19653/2014, pending on
the file of the IV-ACMM Court at Bengaluru registered on
22.07.2014 against the petitioner by the respondent No.1
police on the complaint filed by the respondent No.2 for
the offences P/ U/S 498(A), 323, 504 and 506 R.w 34 of
IPC and u/S 3 and 4 of the D.P.Act.

This criminal petition coming on for hearing this day, the court made the following:-

ORDER

This petition is filed under Section 482 of Cr.P.C. seeking to quash the proceedings in C.C.No.19653/2014 pending on the file of the IV Additional CMM at Bengaluru for the offences punishable under Section 498(A), 323, 504 and 506 read with 34 of IPC and Section 3 and 4 of the Dowry Prohibition Act.

2. The petitioner No.1 is the husband of the complainant (respondent No.2) and petitioner No.2 is the mother-in-law of the complainant.

3. The engagement of the petitioner No.1 and the respondent No.2 (complainant) took place on 29.05.2011. Their marriage was performed on 04.12.2011. The petitioner No.1 is a Software Engineer. The complainant/respondent No.2 is a housewife. It is not in dispute that at the time of the marriage, the petitioner No.1 was working in London. After the marriage, on 12.01.2012, he took respondent No.2 with him to London and both of them stayed together in London till 13.11.2013. After her return to India, respondent No.2 lodged a report before the respondent No.1 on 10.03.2014. The said report was lodged against 6 persons, namely her husband/petitioner No.1, her father-in-law, mother-in-law (petitioner No.2), wife of her brother-in-law and the sister of the petitioner No.1 and her husband. Based on this report, the FIR was registered in Crime No.76/2016 against the aforesaid 6 persons for the offences punishable under Section 498 A read with 34 of IPC and under Section 3 and 4 of Dowry Prohibition Act. However, after investigation, the charge sheet came to be laid only against petitioner Nos.1 and 2 under Section 498 (A), 323, 504, 506 read with 34 of IPC and Section 3 and 4 of Dowry Prohibition Act.

4. The contentions of the petitioners are that the initiation of the proceedings against them is malafide, out of spite and to wreak personal vengeance against the petitioners. According to the petitioners, after the marriage, respondent No.2 lived with petitioner No.1 happily and during her stay the petitioner No.1 provided her with an Audi Car and also bought a house in London in their joint names and there was absolutely no occasion for her to complain against petitioner No.1. Even after her return to India she mostly stayed in her parents’ house except for 2 or 3 days she was in the matrimonial house. Therefore, there was no occasion whatsoever to subject her to cruelty or ill-treatment as alleged in the F.I.R.

5. The learned counsel for the petitioners submits that in the complaint it is alleged that the incident took place at Mathikere but the complaint is lodged before Vidyaranyapura Police, apparently for the reason that the Investigating Officer was amenable to the advice of the 2nd respondent. It is the submission of the learned counsel that the Investigating Officer exceeded his powers and conducted a biased investigation which is evident from the fact that even though the petitioner No.1 had obtained an anticipatory bail, the Investigating Officer arrested him in the Airport and took him to another Police Station and thereafter, produced him before the Magistrate which prompted the Magistrate to issue show-cause notice to the Investigating Officer.

6. The learned counsel further submits that the high handed acts of the Investigating Officer, in this case, have been taken note by the superior officers of the Investigating Officer and a report has been submitted to the Commissioner of Police about the highhanded acts and the biased investigation conducted by the Investigating Officer and the personal interest taken by him in the entire proceedings at the instance of the respondent No.2. It is submitted that though separate proceedings are initiated against the Investigating Officer for appropriate relief and for compensation, yet this is also one of the circumstances to show that the police machinery is misused by the respondent No.2 to settle personal scores with the petitioners.

7. With regard to the allegations made in the complaint, the learned counsel for the petitioners submitted that initially there were omnibus and general allegations against the entire family members, but eventually Investigating Officer having failed to gather necessary evidence, proceedings against four of the family members have been dropped. Though the charge sheet is filed against the husband and the mother-in-law of respondent No.2, there is absolutely no material making out the offenses alleged against them. The learned counsel submits that at no point of time there was a demand for dowry by the petitioners, on the other hand, the petitioner No.1 himself has bought gold jewelry to respondent No.2, which is evident from the receipts produced before the court along with the petition.

8. With regard to the other allegations leveled against the mother-in-law, the learned counsel submits that the mother-in-law is sickly and an aged lady, who has undergone by-pass valve replacement and the allegations made in the complaint that she assaulted respondent No.2 and committed the offences under Sections 323, 506 of IPC is highly improbable and cannot be believed from any score. In support of his submission, the learned counsel has referred to the following decisions of the Hon’ble Supreme Court of India,

1. Dr. Rini Johar Anr. Vs. The State of Madhya Pradesh Ors in Writ Petition (Criminal) No.30 of 2015.

2. Preeti Gupta Anr. Vs State of Jharkhand Anr in Criminal Appeal No.1512 of 2010.

3. Arnesh Kumar Vs State Of Bihar Anr in Criminal Appeal No.1277 of 2014.

9. Refuting the above argument, the learned counsel for respondent No.2 would submit that the allegations made in the complaint prima-facie disclose the commission of the offence alleged against the petitioners. Moreover, the investigation having been completed and the Investigating Officer having collected necessary materials in support of the charges, there is absolutely no reason or justification to quash the proceedings on the purported plea set up by the petitioners.

10. The learned counsel places reliance on the decision rendered by the Hon’ble Supreme Court in the case of Renu Kumari Vs Sanjay Kumar and Others, (2008) 12 SCC 346, wherein it is held as under, “The court must be careful to see that its decision, in exercise of this power, is based on sound principles.

The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and haze, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of couse, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.”

11. The learned Addl. SPP, has supported the arguments of the learned senior counsel for respondentNo.2 contending that sufficient material having been brought on record, this is not fit case for quashing of the proceedings.

12. I have carefully considered the rival submissions and have perused the grounds urged in the petition and the documents produced by the parties. There is no dispute regarding the inter-se relationship between the parties. It is also not in dispute that until 13.11.2013, the petitioner No.1 and respondent No.2 stayed in London. Admittedly, respondent No.2 did not complain against her husband when they were staying in London. It is only after her return to India, the present proceedings appear to have been initiated. A reading of the complaint discloses that the matrimonial relationship between the complainant and petitioner No.1 has strained since then. But what is material to be seen for the purpose of this petition is whether the accusations made against the petitioners make out the offences alleged against them or whether the criminal law is set in motion solely with a view to harass the petitioners?

13. Firstly coming to the allegations of dowry demand is concerned, I do not find anything in the records to show that there were any specific demand for dowry by the petitioners attracting the ingredients of the offences under Section 3 and 4 of the Dowry Prohibition Act, 1961.

14. The allegations made in the complaint and in the statement of the witnesses even if believed on their face value, would only suggest that there was some financial transaction between the parties with regard to the share business said to have been carried on by the father of the petitioner No.1. There is nothing in the entire compliant indicating that the petitioners had demanded dowry either from respondent No.2 or from her parents in connection with the marriage. On the other hand it is stated in the compliant that at the time of the marriage there was exchange of jewellery, gifts and other presents, which implies that other than the customary presents there was no giving or taking of dowry between the parties. In this context, it is pertinent to extract the portion of the compliant wherein it is alleged that,

This statement points out that the father of the petitioner No.1 was involved in share business and in that context the father of petitioner No.1 persuaded the father of respondent No.2 to invest in share business. This request cannot be construed as dowry demand within the meaning of Section 3 and 4 of Dowry Prohibition Act, 1961. Therefore, these allegations even if accepted as true takes the case out of the ambit of Section 3 and 4 of the Dowry Prohibition Act, 1961. Therefore, the prosecution of the petitioners on this count would be wholly illegal and would turn out to be an abuse of process of Court.

15. Apart from the above allegations, there is nothing in the entire compliant to show that at any point of time, any of the petitioners demanded any dowry from the complainant within the meaning and definition provided in the Dowry Prohibition Act. Therefore, in my opinion the accusations made against the petitioners in this regard do not make out the offences under the provisions of Dowry Prohibition Act, 1961.

16. Coming to the allegations invoking Sections 323 and 506 of IPC are concerned, it is relevant to note that respondent No.2 returned to India only on 13.01.2013. The circumstances under which she returned to India are detailed in the compliant which indicate that she came to India to see her ailing mother. According to her own version, after returning to India she stayed in her parents house until 13.01.2014. In the compliant she has specifically stated that she came to the matrimonial house on 13.01.2014 along with her co-sister by name Bindu. Regarding the incident that alleged to have taken place in the matrimonial house, the version of the compliant reads as under,

The above averments even if believed on their face value would go to show that the in-laws of the complainant wanted her to have a child and therefore they suggested to have an ‘Arathi’ from her sister-in-law. No doubt, it is true that she has stated in the complaint that when she refused to heed to their request, the mother-in-law and the father-in-law abused her and throttled her neck, but in appreciating these allegations it is relevant to note that even though these allegations are leveled against the mother-in-law and father-in-law of the complainant, respondent No.1 has dropped the charges against the father-in-law. When common charges are leveled against the father-in-law and the mother-in-law in respect of the same transactions, it is difficult to reconcile as to how the above charges could be sustained only against the mother-in-law of the complainant.

17. That apart the complaint was lodged only on 14.03.2014 more than two months after the alleged incident and there is absolutely no explanation whatsoever for the delay in reporting the matter to the police. When it is the grievance of the complainant that an attempt was made on her life and she could not stay in the matrimonial house after the said incident, the unexplained delay renders her story susceptible to doubt.

18. In this context it may be apt to refer to the observations made by the Hon’ble Supreme Court of India in the case of Bhajan Singh @ Harbhajan Singh Ors. Vs State of Haryana, (2011) 7 SCC 421, which is extracted as under, “Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same.

Undoubtedly, delay in lodging the FIR does not make the complainant’s case improbable when such delay is properly explained.

However, deliberate delay in lodging the complaint may prove to be fatal.

In such case of delay, it also cannot be presumed that the allegations were an after thought or had given a coloured version of events. The court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with mala fide intentions or with ulterior motive of wreaking vengeance. The court proceeding ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law.”

19. The aforesaid delay coupled with the baseless allegations made against the petitioners alleging dowry demand and cruelty in the matrimonial house leads to the inevitable conclusion that the criminal law is set in motion by respondent No.2 after much deliberation with a view to spite the petitioners because of the strained matrimonial relationship between her and petitioner No.1. In this context, the observations made by the Hon’ble High Court of Allahabad in the case of Dharm Raj Yadav and others Vs State of U.P. and others are worth to be extracted.

“The common experience shows that most of the cases of differences and dissensions between married couples result only in dowry demand by the husband and by all his family members. The provisions of the Act are being callously misused by the wives and their parents with different kinds of stories. The disputes, though pending in the Courts for decisions, still give rise to the complaints and F.I.Rs of the wive’s victimization of dowry demand. So long the status of the husband is enchanting, as was the case in hand with the informant’s own allegation that her father was mesmerized with the status of Sanjeev Kumar – presents and gifts comprising colour T.V., generator sets, maruti cars or even that of better brand, houses, cash – are offered to grab over the bridegroom. He is forced to be attracted of all allurements of huge cash and numerous gifts of household utility, but with the disruption of ties between the husband and wife or slight dissensions on account of their colliding temperaments, strained relationship of the wife with her parents-in-law, difference in the culture of the two families of wife and husband, distances of the education between the two including the difference of mental levels, and extra-marital relationship of either of the two spouses – everything is channelized into a dowry tunnel and the wife is said to be victimized of the dowry demand.

20. It is not uncommon that when the relationship between spouses gets sour, recourse is taken to criminal court to settle personal scores, but as observed by the Hon’ble Supreme Court in the case of Preeti Gupta  Another Vs State of Jharkhand Another (2010) 7 SCC 667 such proceedings have to be understood in the overall context in which the allegations are made. In para 28, 31 33 the Court observed as under, “It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem.

They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

The allegations of harassment of husband’s close relations who had been living in different cities an never visited or rarely visited the place where the complainant resided would have an entirely different complexion.”

21. Thus, having regard to the overall facts and circumstances of the case, I find that the proceedings initiated against the petitioners are fraught with a personal vengeance and are intended to harass and bring the petitioners to agree to the terms of respondent No.2. The materials placed before the court in support of the charge sheet do not make out the offences alleged against the petitioners. In the said circumstances, the continuation of the proceedings would only turn out to be a weapon of harassment and persecution to the petitioners and consequently an abuse of the process of the court. Therefore, I am of the firm opinion that the proceedings initiated against the petitioners deserve to be quashed.

22. Before parting with this order it is necessary to note that serious allegations are made in the petition against the Investigation Officer and the partisan role played by him in conducting the investigation. But as the petitioners have taken independent action against the Investigating Officer, I have refrained from making any comments on the conduct of the Investigating Officer. Nonetheless, for the reasons discussed above, the proceedings initiated against the petitioners in C.C. No.19653/2014 are liable to be quashed and hence the said proceedings pending on the file of the IV Additional Chief Metropolitan Magistrate Court at Bengaluru in C.C.No.19653/2014 are hereby quashed.

Petition stands allowed accordingly.

SD/-

JUDGE Akv/vbs

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