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Looking at other Women will not attract IPC 498A

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION No.100569/2014

BETWEEN:

SUNIL SANDUR
S/O. LATE VISHNU THEERTHACHAR
AGE: 44 YEARS,
R/O. COLLEGE ROAD, HOSPET
DIST: BELLARY
PRESENT PERMANENTLY R/AT: UNITED ARAB EMIRATES… PETITIONER

(BY SRI. K L PATIL S S BETURMATH, ADVS.)

AND:

STATE OF KARNATAKA
TOWN POLICE STATION,HOSPET,
R/BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA
DHARWAD… RESPONDENT

(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)

THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDINGS
IN C.C.NO.866/2012 PENDING ADJUDICATION ON THE
FILE OF PRL. CIVIL JUDGE JMFC COURT, HOSPET, FOR
THE OFFENCES P/U/S 498-A, 323, 504 R/W 34 OF IPC 3
4 OF D.P. ACT.

THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

ORDER

The present petition is preferred seeking quashing of the entire proceedings in C.C.No.866/2012 pending on the file of the Principal Civil Judge and JMFC, Hospet for the offences punishable under Sections 498A, 323, 504 r/w. Section 34 of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act.

2. The brief factual matrix that emanate from the records are that:

A lady by name Vani Sandur lodged a private complaint in PC No.72/2010 for the offence punishable under Section 498A, 323, 341, 504, 504 r/w. Section 34 of the IPC and Section 3 and 4 of the Dowry Prohibition Act against three accused persons. This petitioner is arrayed as accused No.3.

The learned Magistrate on receipt of the complaint referred the matter for investigation and report to the jurisdictional police under Section 156(3) of the Cr.P.C. The police have submitted the charge sheet and the accused persons, particularly accused Nos. 1 and 2 appeared before the Court by virtue of summons issued against them. The trial Court due to the absence of this petitioner arrayed as accused No.3, split up the case against him and tried the other accused persons i.e., accused Nos. 1 and 2 by name Pavan Kumar Sandur and Smt. Rama Sandur, W/o. Late Vishnuthirthanchar. After due contest, the said case ended in acquittal of the accused Nos. 1 and 2 vide judgment dated 12.02.2013 in C.C.No.29/2011. It appears the spilt up case is registered against this petitioner in C.C.No.866/2012 which is pending on the file of the Addl. Civil Judge and JMFC, Hospet. In C.C.No.866/2012, the learned Magistrate has issued Non-Bailable Warrant against the petitioner herein on several occasions and the case is pending before the trial Court at present. At this juncture, present petition is filed seeking quashing of the entire proceedings in C.C.No.866/2012.

3. Though the main case i.e., C.C.No.470/2012 was sought to be quashed, in view of the spilt up charge sheet filed against this petitioner and separate case registered by the trial Court against this petitioner in C.C.No.866/2012, the learned Counsel for the petitioner seeks permission of the Court by filing a memo requesting this Court to permit the petitioner to amend the prayer column to mention C.C. No.866/2012 instead of C.C.No.470/2012. The memo is recorded and the learned Counsel is permitted to amend the petition accordingly.

4. The learned Counsel for the petitioner strenuously contends that there is absolutely no allegation of whatsoever against this petitioner. Moreover, the allegations made against the other petitioners were also not proved to the satisfaction of the Court. Therefore, the trial Court after considering the detail evidence adduced by the prosecution before the trial Court, came to the conclusion that the prosecution has not proved the case against the accused Nos. 1 and 2. This petitioner also stands on the same footing as that of accused Nos. 1 and 2. Even if it is ordered that the petitioner to undergo an ordeal of trial, no ideal purpose would be served in doing so and it is mere waste of valuable time of the Court. Therefore, he contends that the said proceedings deserved to be quashed.

5. I have carefully perused the judgment of the trial Court, wherein the accused Nos. 1 and 2 are acquitted. The trial Court has formulated four points for consideration, which are as follows:

i. Does prosecution proves that, the accused have ill-

treated the complainant mentally and physically from 13.5.2001 to 2005 in Hospet?

ii. Does prosecution further proves that in between 2005 to 2008, accused have further ill-treated the complainant physically and mentally in Bangalore?

iii. Does filing of the complaint at belated stage is a fatal to the prosecution case?

iv. Does prosecution able to prove the guilt of the accused beyond all reasonable doubts?

v. What order?

6. The trial Court while meticulously discussing the evidence of the complainant and also other witnesses has categorically held that the prosecution has not proved the case beyond all reasonable doubt and hence acquitted the other accused persons. The trial Court has observed that the accused No.1 and the complainant Smt. Vani are the husband and wife and this petitioner is the younger brother of accused No.1. Accused No.2 is the mother of accused No.1. It is observed that the husband has filed a matrimonial petition in M.C.No.50/2009 on the file of the jurisdictional Court for restitution of conjugal rights and thereafter, that too after 1 ½ years this complaint came to be filed by the wife after leaving her husband’s conjugal company. Even after analyzing the evidence of the complainant and on careful examination of the prosecution case, the trial Court has observed that the complainant has set forth two instances of matrimonial ill-treatment firstly at Hubli and secondly at Bangalore. The learned Magistrate has also considered both the incidents as explained by the complainant and observed that after 2005, the accused No.1 had been to Bangalore for eking his livelihood. The complainant also joined him at Bangalore and it is alleged that she was ill-treated continuously by the accused No.1. The learned Magistrate has disbelieved the said version of the complainant for want of proof, comparing her evidence with that of other witnesses. Further allegation of the complainant that she was driven out by the first accused from the house at Bangalore was also appreciated by the trial Court and disbelieved the complainant. There is absolutely no mention in the judgment about any allegation made against this petitioner. The evidence placed before the Court, particularly of Vani Sandur is also made available by the learned Counsel for the petitioner herein. Except stating that accused Nos. 2 and 3 were also residing with accused No.1 in the joint family, no serious allegations have been made against this petitioner. Throughout her evidence the complainant has not made any allegations against accused No.3 (petitioner) in order to show that he was ill-treating and harassing her except stating that he had an evil eye against her. Just looking at a lady with an evil eye cannot be sufficient constitute an offence under Section 498A of the IPC or other offences alleged. Except this single sentence in the evidence of PW1 before the trial Court, no other allegations are made in the examination-in-chief.

7. Therefore, looking to the above said factual aspects, even if the split up case lodged against this petitioner is ordered to be tried, as rightly observed by the learned Counsel it would not serve any purpose and it would be simply waste of valuable judicial time of the trial Court.

8. In the above said context, the legal position propounded in some of the decisions of the Hon’ble Apex Court as well as this Court are to be looked into, regarding the Jurisdiction and power of this Court under Section 482 of the Cr.P.C.

In a decision reported in AIR 2005 SC 268 in the case of Central Bureau of Investigation Vs. Akhilesh Singh, the Hon’ble Apex Court has categorically held that:

“Quashing of charge and discharge of co-accused – offence of criminal conspiracy and murder – main accused who had alleged to have hatched conspiracy and who had motive to kill deceased was already discharged – That matter had attained finality – Discharge of co-accused by High Court by holding that no purpose would be served in further proceedings with case against co-accused – held proper”

In another ruling reported in 2001 (3) Kar.L.J.551 in the case of Mohammed Ilias Vs. State of Karnataka, this Court has categorically held that:

“The petitioner is the accused in the case and he is shown to be absconding. Therefore, the case against the petitioner was split up and charge- sheet was laid against the other available accused 1 to 3 for committing an offence punishable under Sections 498-A and 307 of the IPC read with Section 34 of the IPC. After the trial, the Sessions Judge acquitted the accused 1 to 3. The petitioner was arrested and proceedings were revived against him in the split charge-sheet.. In the instant case also the full-fledged trial was held against accused 1 to 3 in respect of the same offence. In the second round of trial against the petitioner, the evidence to be produced cannot be different from the one that was produced by the prosecution in the earlier case. Therefore, in that view of the matter the proceedings is quashed.”

9. The above said factual aspects are similar to the factual aspects involved in this particular case. Moreover as I have already referred to the evidence of PW1, the allegations made against accused Nos. 1 and 2 are little serious than the allegations made against this petitioner. When accused Nos. 1 and 2 have already been acquitted by the trial Court, in my opinion the present proceedings against accused No.3 is not maintainable.

10. Under the above said circumstances, I am of the opinion, the proceedings in C.C.No.866/2012 pending on the file of the Addl. Civil Judge and JMFC, Hospet against this petitioner deserves to be quashed. Accordingly, the following order is passed:

ORDER The petition is allowed. Consequently, the split up charge sheet pending before the Addl. Civil Judge and JMFC, Hospet in C.C.No.866/2012 against this petitioner for the offences punishable under Sections 498A, 323, 506 R/w. Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, is hereby quashed.

I.A.1/2014 does not survive for consideration and the same is also disposed of.

Sd/-

JUDGE gab/-

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