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Amitabh Sinha vs State Of Karnataka on 27 May, 2019

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27th DAY OF MAY, 2019

BEFORE

THE HON’BLE MR. JUSTICE ARAVIND KUMAR

CRIMINAL PETITION NO.4887/2018

BETWEEN:

AMITABH SINHA
S/O LATE M.C. SINHA
AGED ABOUT 41 YEARS
R/AT NO.179, TIWARIPUR FIRST
P.O. SEWANS TANNERY
ADARSH NAGAR
KANPUR – 208 010
U.P. – INDIA.
… PETITIONER
(BY SRI. PRITHVI RAJ B.N., ADVOCATE)

AND:

1. STATE OF KARNATAKA
BY ELECTRONIC CITY
POLICE STATION
BENGALURU CITY – 560 100
REP. BY S.P.P.
HIGH COURT OF KARNATAKA
BANGALORE – 1.

2. SUNITA MOTWANI
W/O AMITABH SINHA
AGED ABOUT 52 YEARS
R/AT NO.F-1801
AJMERA INFINITY
SY. NO.89/1, NEELADRI
ROAD, ELECTRONIC CITY
PHASE-I, BENGALURU – 560 100.
… RESPONDENTS
(BY SRI. S.T. NAIK., HCGP FOR R-1;
SMT. SUNITA MOTWANI – R-2, PARTY-IN-PERSON)
2

THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS IN C.C.NO.15552/2017, PENDING BEFORE
IV ADDITIONAL METROPOLITAN MAGISTRATE FOR THE
OFFENCE P/U/S 498A, 406, 420, 324 AND 506 OF SectionIPC.

THIS PETITION HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Petitioner has sought for quashing of proceedings

pending in C.C.15552/2017 on the file of IV Additional

Chief Metropolitan Magistrate, Bengaluru registered for

the offences punishable under Section 498A, Section406, Section420,

Section324 Section506 IPC.

2. Facts in brief which has led to filing of this

petition are as under:

Petitioner and second respondent got married on

15.04.2001 at Arya Samaj Mandir, New Delhi and a

male child was born out of the said marriage on

12.02.2003. During 2007, petitioner, second

respondent along with their son went to United States

of America and on account of certain disputes having
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arisen between them, second respondent is said to have

lodged a complaint, resulting in petitioner being

arrested by police at USA and later on released.

Second respondent is said to have returned back to

India along with their son during September, 2007.

3. When this was the factual matrix, second

respondent filed a petition under Sections 12, Section18, Section19,

Section20, Section22 and Section23 of the Protection Of Women From

Domestic Violence Act, 2005 before the Metropolitan

Magistrate, New Delhi registered as C.C.No.2580/2007

(Annexure-F).

4. On 08.09.2015, second respondent lodged a

complaint before the first respondent alleging that after

marriage, petitioner was harassing her both physically

and mentally and he was not taking care of her and her

son and till date, he is absconding from India and

hiding in USA. On the basis of the said complaint, an

FIR came to be registered in Crime No.651/2015 for the

offence punishable under Section 498A IPC.
4

5. Petitioner on arriving in India on 04.04.2016

was arrested and brought to Bangalore and produced

before jurisdictional Magistrate and later released on

bail. On 11.04.2016 charge sheet came to be filed by

first respondent against the petitioner for the offence

punishable under Section 498A IPC in

C.C.No.3357/2016.

6. There are several disputes pending between

the parties and the present one is an off shoot of the

matrimonial discord. Petitioner – husband as already

noticed herein above, is seeking for quashing of the

proceedings pending in C.C.No.15552/2017.

7. I have heard the arguments of Sri Prithviraj,

learned Advocate appearing for petitioner, Sri S.T.Naik,

learned HCGP for respondent-1 and Smt.Sunita

Motwani, respondent-2 – party appearing in person.

8. It is the contention of Sri Prithviraj, learned

Advocate appearing for petitioner that learned trial

Judge ought not to have taken cognizance of the same
5

as the same was barred under Section 468(1) Cr.P.C. as

it was filed beyond the period of limitation prescribed

under Section 468(2) Cr.P.C. He would also contend

that trial Court ought to have considered whether it had

territorial jurisdiction to take cognizance of the offence

since according to the charge sheet material, the alleged

incidents have taken place at Delhi, Guragon and USA.

Hence, order taking cognizance is contrary to Sections

177 and Section178 Cr.P.C. He would also contend that

second respondent had given a false complaint against

petitioner in USA and same came to be dismissed

(Annexure-N) which would clearly indicate that

allegation made in the complaint is frivolous and

without any basis.

8.1 He would also submit that learned trial

Judge erred in framing additional charges on

09.02.2018 for the offence punishable under Sections

406, Section420, Section323 Section506 IPC on the ground that petitioner

intentionally defaulted in repayment of the loan

obtained from LIC Housing Finance Limited and the
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cause of action for the said incident having arisen at

Guragon/Delhi, there was no territorial nexus of the

alleged offences at Bengaluru.

8.2 He would also elaborate his submission by

contending that additional charge framed for offence

punishable under Section 324 IPC is clearly barred by

law since alleged incident took place on 20.06.2001 and

charges are framed on 19.02.2019 and as such, entire

proceedings are liable to be quashed.

9. Per contra, learned HCGP appearing for

respondent-1 would support the case of prosecution

and prays for dismissal of the petition.

10. Whereas, second respondent has filed

objections to the petition and by reiterating the

contentions and grounds urged thereunder, she would

contend that there is no merit in the petition and she

was staying in the matrimonial home at Gurgaon-India

and petitioner is attempting to flee from justice and

hence, she has prayed for dismissal of the petition.
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11. Having heard the learned Advocate

appearing for petitioner, learned HCGP appearing for

respondent-1 and second respondent – party appearing

in person, it requires to be noticed that there is no

dispute with regard to relationship between the parties.

The facts relating to marriage, birth of son, petitioner

and second respondent staying for some time in USA

and disputes having arisen between them as also

several cases pending before jurisdictional Courts are

also not in dispute. Hence, these aspects are not delved

upon this petition as it would be repetition of facts and

would burden the records.

12. In the instant case, the proceedings pending

against petitioner which is based on the complaint

lodged by second respondent has been sought for being

quashed on the grounds already narrated herein above.

13. There cannot be any dispute to the

proposition of law that powers under Section 482

Cr.P.C. are to be exercised sparingly and in exceptional
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cases, though the jurisdiction exists and is wide in its

scope, it is a rule of practice to exercise such power

only exceptional circumstances to prevent abuse of

process of law. The power available under Section 482

Cr.P.C. can be exercised under three circumstances:

(a) to give effect to an order under the Code;

(b) to prevent abuse of the process of the Court;

(c) to otherwise secure the ends of justice.

Thus, there cannot be any inflexible rule which would

govern the exercise of inherent jurisdiction. Said power

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. In other

words, it has to be exercised ex debito justitiae – to

do real and substantial justice. At the same time,

inherent power would not be exercised to stifle a

legitimate prosecution. In the process of scrutinizing

the material placed by the prosecution, while

considering the prayer for quashing, this Court would

refrain from giving a primafacie opinion or decision,
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particularly where facts are incomplete or where the

evidence has not been collected and no hard and fast

rule can be laid in this regard. This doctrine of

inherent power merely recognizes and preserves said

power of this court. 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

your wrong in the course of administration of justice on

the principle quando lex aliquid alicui concedit,

concedere videtur et id sine quo res ipsae esse non

potest” – when the law gives the person anything,

it gives him that which it cannot exist.

14. Keeping these principles in mind, when the

complaint in question is perused, it would disclose that

second respondent has been claiming to have been

harassed by the petitioner not only in India but also

abroad, which is the sum and substance of the

complaint.

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15. As regards the issue relating to jurisdiction

is concerned, it requires to be noticed that she has

clearly stated in her complaint to the following effect:

7 – After marriage xxx living of me. His
bad temperament surfaced. He abused
me physically, sexually and emotionally.
Used me and my family only for money
by fulfilling his dream of reaching USA.

8 – After marriage xxx IT Job. In April,
2001 (immediately after marriage), he
without any rhyme or reason he gave
severe beatings to me, when the I
insisted upon meeting his parents. It is
stated that after about 45 days after
marriage and he started and picked
quarrel with me when I refused to ask
my parents for any financial help.

11 – That during last six and half years
of marriage has been screaming,
shouting and blackmailing that I should
ask for money from my parents.

13 – That due to apathetic and
indifferent attitude of Mr.Amitabh Sinha,
I was not interested in second child but
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Amitabh Sinha forced and compelled by
physical hitting to bear second child.

16 – That again xxx repeating cont. He
insisted for buying furniture in the
house and demanded that my parents
should bear the expenses towards the
same. It is stated that my old mother
came down from Bombay and she got
sofa with center table worth Rs.60,000/-
from Gurgaon and left for Bombay.

21 – Mr.Amitabh Sinha used to get
violent on one pretext or the other. It is
stated whenever, the I refused to take
money from her parents, Mr.Amitabh
Sinha used to abuse me physically and
sexually and emotionally. On 23 Sept.
2007 Amitabh hit me with fists, blows
and also with steel plate inflicting
injuries on the face due to which I had
to call USA police. Since my face was
swollen and bleeding. Mr.Amitabh
Sinha was arrested by police on
23.09.2007 and he was behind the bars
for 3 days and finally released on bail on
1500 US $. It is stated that I was so
12

scared and traumatized by the incident
dt. 23.9.2007 that the I along with the
minor child was constrained to leave
Atlanta for India on 26.9.2007 and even
the tickets were arranged by the parents
of the I. It is stated that the inhuman
and barbarous behaviour of Mr.Amitabh
Sinha and threatened me of dire
consequences to such an extent such
my and my son were compelled to leave
USA. He was a threat to me and my
minor son. It is stated that I am
traumatized by the haunting memories
of those six and half years and is unable
to forget the emotional and mental
trauma caused by Mr.Amitabh Sinha.

16. It is no doubt true that no part of the cause

of action arose in the city of Bengaluru. However, it

requires to be noticed that in a complaint filed for the

offence under Section 498A IPC, a liberal approach

requires to be adopted and under similar

circumstances, Hon’ble Apex Court in SectionBHUDEB

CHANDRA KARMAKAR vs STATE OF WEST BENGAL
13

reported in (2001)9 SCC 226 has held that in order to

meet the ends of justice, the complaint should be

treated as one presented before appropriate Court. It

has been held that :

“Heard learned counsel for the
parties. xxx taken place at Calcutta. It
however, appears to us that it has been
specifically stated by the complainant that
she is in a pitiable financial position and
her brother being poor cannot support her.
In such circumstances, even if the
complaint had been lodged in the
appropriate court in Calcutta, the
respondent could have made an application
for transfer of the said case to Bankura
which is her usual place of residence so
that she can effectively pursue the case on
the basis of the complaint lodged by her. In
the facts of the case, it appears to us that
such application for transfer, if made,
deserves to be allowed. Taking a pragmatic
view of the matter, we feel that the
complaint should not be dismissed on the
score of jurisdictional impropriety. In the
special facts of the case, we direct that it
would be treated as if the complaint was
presented to the appropriate court in
Calcutta and the same has been transferred
in the Court of Chief Judicial Magistrate,
Bankura. Such direction is given for ends
of justice and to avoid dismissal of the
complaint filed in Bankura for want of
jurisdiction and filing another complaint in
Calcutta and then to get the same
transferred to Bankura for the reasons
indicated.”

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17. In the light of above authoritative

pronouncement of Hon’ble Apex Court, this Court is not

inclined to accept the contention raised by learned

Advocate appearing for petitioner that the learned

Magistrate at Bengaluru not having jurisdiction to take

cognizance of the offence alleged or proceedings being

continued at Bengaluru. Said contention stands

rejected.

18. Learned Advocate appearing for petitioner

has contended that complaint in question which has

been lodged by the second respondent before first

respondent on 08.09.2015 is barred by limitation on

the ground the alleged acts of cruelty ceased to exist

from 23.09.2007 (last day when the petitioner and

second respondent stayed together) and therefore, the

complaint after 8 years is barred by limitation as

prescribed under Section 468A Cr.P.C. requires to b e

considered for the purposes of rejection, inasmuch as,

Hon’ble Apex Court somewhat under similar

circumstances in the case of SectionVANKA
15

RADHAMANOHARI vs VANKA VENKATA REDDY

reported in (1993)3 SCC 4 has held that matrimonial

offences relating to cruelty of husband on wife are in

the nature of continuing offences to which bar under

Section 468A Cr.P.C. cannot be applied in the interest

of justice. It was held:

“7. It is true that the object of
introducing Section 468 was to put a bar of
limitation on prosecutions and to prevent
the parties from filing cases after a long
time, as it was thought proper that after a
long lapse of time, launching of prosecution
may be vexatious, because by that time
even the evidence may disappear. This
aspect has been mentioned in the statement
and object, for introducing a period of
limitation, as well as by this Court in the
case of SectionState of Punjab v. Sarwan Singh .

But, that consideration cannot be extended
to matrimonial offences, where the
allegations are of cruelty, torture and
assault by the husband or other members
of the family to the complainant. It is a
matter of common experience that victim is
subjected to such cruelty repeatedly and it
is more or less like a continuing offence. It
is only as a last resort that a wife openly
comes before a Court to unfold and relate
the day-to-day torture and cruelty faced by
her, inside the house, which many of such
victims do not like to be made public. As
such, Courts while considering the question
of limitation for an offence under Section
498-A i.e. subjecting a woman to cruelty by
her husband or the relative of her husband,
should judge that question, in the light
16

of Section 473 of the Code, which requires
the Court, not only to examine as to
whether the delay has been properly
explained, but as to whether “it is necessary
to do so in the interest of justice”.

8. In the case of SectionBhagirath Kanoria v.
State of M.P., this Court even after having
held that non-payment of the employer’s
contribution to the Provident Fund before
the due date, was a continuing offence, and
as such the period of limitation prescribed
by Section 468 was not applicable, still
referred to Section 473 of the Code. In
respect of Section 473 it was said:

“…That section is in the nature of
an overriding provision according
to which, notwithstanding
anything contained in the
provisions of Chapter XXXVI of the
Code, any Court may take
cognizance of an offence after the
expiry of the period of limitation if,
inter alia, it is satisfied that it is
necessary to do so in the interest
of justice. The hair-splitting
argument as to whether the
offence alleged against the
appellants is of a continuing or
non-continuing nature, could have
been averted by holding that,
considering the object and purpose
of the Act, the learned Magistrate
ought to take cognizance of the
offence after the expiry of the
period of limitation, if any such
period is applicable, because the
interest of justice so requires. We
believe that in cases of this nature,
Courts which are confronted with
provisions which lay down a rule
of limitation governing
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prosecutions, will give due weight
and consideration to the
provisions contained in Section
473 of the Code.”

9. Coming to the facts of the present
case, the appellant is admittedly the wife of
the respondent. She filed the petition of
complaint in the year 1990, alleging that
she was married to the respondent, who
subjected her to cruelty, details whereof
were mentioned in the complaint aforesaid.
She further stated that on May 4, 1990 he
has married again, deserting the appellant.
In view of the allegation regarding second
marriage, an offence under Section 494 of
the Penal Code was also disclosed which is
punishable by imprisonment for a term
which may extend to seven years. The High
Court taking into consideration Section
468, has come to the conclusion that the
complaint in respect of the offence
under Section 498A which prescribes
imprisonment for a term up to three years,
was barred by time. Nothing has been said
by the High Court in respect of the offence
under Section 494 of the Penal Code, to
which Section 468 of the Code is not
applicable, the punishment being for a term
extending up to seven years. Even in
respect of allegation regarding an offence
under Section 489A of the Penal code, it
appears that the attention of the High Court
was not drawn to Section 473 of the Code.
In view of the allegation that the
complainant was being subjected to cruelty
by the respondent, the High Court should
have held that it was in the interest of
justice to take cognizance even of the
offence under Section 498A ignoring the bar
of Section 468.”

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19. Even if there has been delay, if same stands

explained, such delay would recede to the background

and the magistrate would be empowered to examine as

to whether such delay exists and if so, same having

been explained or not. Hence, this Court would refrain

from examining the claim of delay on merits and it is

left open for the learned Magistrate to examine the

same.

20. In the instant case, the jurisdictional Court

has framed charge for the offences punishable under

Sections 406, Section498A, Section420, Section324 and Section506 IPC. In the teeth

of offence punishable under Section 420 IPC for seven

years, petitioner cannot be heard to contend that

Section 468 Cr.P.C. is attracted and contention raised

in that regard stands rejected.

21. The plea for quashing of proceedings on the

basis of the probable defence that the accused may set

up would not be in the domain of consideration by this

Court. It would be apt and appropriate for the
19

jurisdictional Magistrate to examine the same after

prosecution tenders evidence and as such, proceedings

before the trial Court cannot be stifled even before

evidence could be recorded.

For the reasons aforestated, I proceed to pass the

following:

ORDER

(i) Criminal petition is dismissed.

(ii) It is made clear that no opinion is

expressed on merits of the case.

SD/-

JUDGE

*sp

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