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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 16TH DAY OF JULY, 2021

BEFORE

THE HON’BLE MR.JUSTICE RAJENDRA BADAMIKAR

CRIMINAL PETITION NO. 201286/2019

BETWEEN:

1. Anand S/o Bhimsha Potaraj, Age:38 years,
Occ:Private work R/o Kolsafile Shahabad,
Tq:Shahabad Dist:Kalaburagi-585228.

2. Ashamma W/o Bhimsha Potaraj, Age:46 years,
Occ:Household R/o Kolsafile Shahabad,
Tq:Shahabad Dist:Kalaburagi-585228.

3. Bhimshya S/o Ashappa, Age:60 years,
Occ:Nil R/o Kolsafile Shahabad,
Tq:Shahabad Dist:Kalaburagi-585228.

4. Bodemma @ Hanmanti W/o Hanmanth
Age:65 years,Occ:Household R/o H.No.E/11/174
Near Railway Water Tank Banjara Nagar
Hanuman Tanda Shahabad,
Tq:Chitapur Dist:Kalaburagi.

5. Anantamma @ Hanmanti W/o Bhimaraya,
Age 49 years Occ:Household R/o Near Hanuman
Temple Banjara Nagar Hanuman Tanda Shahabad
Shahabad Tq:Shahabad Dist:Kalaburagi-585228.

… Petitioners
(By Sri.Bhimashankar Basanna, Advocate)
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AND:

1. The State of Karnataka through
Shahabad Town Police Station Shahabad,
R/by Special Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench-585102.

2. Rajeshwari Anand Potaraj Age:21 years,
Occ:Household R/o Kolsa File Shahabad,
Tq:Shahabad Dist:Kalaburagi-585228.

… Respondents

(By Sri. Gururaj V. Hasilkar, HCGP for R1
Sri.S.B.Sangolagi, Advocate for R2)

This criminal petition having been heard and
reserved for Orders on 09.07.2021, coming on for
‘Pronouncement of Orders’ this day, the Court made the
following:
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ORDER

The petitioners/accused Nos.1 to 5 have filed this

proceedings in C.C. No.46/2019 arising out of the

Shahabad Town Police Station in Crime No.135/2018 for

Civil Judge and JMFC, Shahabad.

2. The factual matrix leading to the case are that

the respondent No.2 herein has lodged a complaint against

the present petitioners for the offences punishable under

IPC.

3. It is alleged that the petitioner No.1 is the

husband of the complainant/respondent No.2 and their

marriage was solemnized on 09.05.2016. It is also alleged

that during the marriage as per demand sufficient amount

of dowry in the form of cash and gold was paid and for 15-

20 days the complainant stayed in her matrimonial house
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and thereafter petitioner No.1 went to foreign for work.

However she continued to stay with petitioner Nos.2 and 3

and then they started to ill-treat her making allegations

that she was not getting any children. It is also alleged

that one year prior to lodging the complaint her husband

returned from foreign and he asserted that she was not

good looking, she do not know cooking and she is not

taking care of his parents. Hence, he abused her and

threatened her that he will contract second marriage and

physically and mentally assaulted her. Thereafter he again

went back to foreign. Thereafter petitioner Nos.2 and 3

started to ill-treat her both physically and mentally and

petitioner Nos.4 and 5 have instigated her. It is alleged

that on 08.10.2018 evening at 5.00 p.m., the petitioner

Nos.2 and 3 have driven her out of the house and as such

she lodged a complaint. On the basis of the complaint, the

investigating officer has investigated the matter and

submitted a charge sheet. The learned magistrate after

submission of the charge sheet has taken cognizance and

issued process. Being aggrieved by this aspect the
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petitioners have filed this petition for quashing the entire

proceedings.

4. Learned counsel for the petitioners would

contend that after marriage only for 20 days they resided

together and thereafter petitioner No.1 is residing in Saudi

Arabia for work and did not returned to India and

allegations against him are completely false. He would

further submit that petitioner Nos..4 and 5 are not the

relatives of the husband by blood, marriage or any other

way and they are sisters of petitioner No.3 and ingredients

them. That the allegations of the complaint does not

disclose any cognizable offence and submission of the

charge sheet and continuation of proceedings is nothing

but abuse of process of law. It is contended that

allegations made are patently absurd and inherently

improbable. Hence, it is prayed for quashing the

proceedings against the petitioners.

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5. Per contra the learned counsels appearing for

respondents have seriously disputed the claim and

contended that the petitioner Nos.4 and 5 are the sisters

of petitioner No.3 who is father-in-law of present

complainant /respondent No.2 herein and hence, they are

close relatives of the husband as they are paternal aunts.

It is further contended that at the instigation of petitioner

No.1, petitioner Nos.2 and 3 have subjected the

victim/complainant to ill-treatment and even the petitioner

No.1 has subjected her to ill-treatment during his visit to

India and hence, the offence is a continuing offence and as

such there is prima-facie material. Hence, they have

sought for rejection of the petition.

6. Having heard the arguments and perusing the

records, it is to be noted here that the petitioner No.1 is

the husband of complainant/respondent No.2 while

petitioner Nos.2 and 3 are the mother-in-law and father-

in-law of the complainant, being the parents of petitioner

No.1. The petitioner Nos.4 and 5 are the sisters of the
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petitioner No.3. The contention of the learned counsel for

the petitioners is that they does not fall in the definition of

close relatives of husband but the said argument cannot be

accepted as they are paternal aunts of petitioner No.1.

Further the allegations of the complaint and statement of

witnesses specifically disclose that petitioner No.1 has

subjected the complainant to ill-treatment and petitioner

Nos.2 and 3 have continued the ill-treatment and driven

her out of the house. Hence, there is prima-facie material

as against the petitioner Nos.1 to 3 and for proceeding the

law does not require that the learned magistrate while

taking cognizance should be satisfied, that it should end in

to the conviction, but he is only required to satisfy himself

that the allegations made in the complaint prima-facie

constitute the offence as alleged. Hence, the allegations in

the complaint clearly establish that the ingredients of the

offences alleged against the petitioner Nos.1 to 3 are

attracted.

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7. Learned counsel for the petitioners has placed

reliance on the decision reported in 2009 14 SCC 466 in

Another. But the facts and circumstances are entirely

different and it is observed that when the complaint or the

charge sheet does not disclose or the complaint is found

out frivolous, vexatious or oppressive, it is required to be

out but the said principles are not applicable as in the

instant case there is sufficient material evidence.

8. He has further placed reliance on the decision

of the Hon’ble Apex Court in Crl.A.No.938/2009 in the

Another. But the facts are entirely different and in the

said case, it is clearly observed that the recitals of the

complaint does not attract the ingredients of the offence.

Further the complaint was also lodged against the

Kankubai (kept Mrs) and she was held to be not related to

husband but in the instant case the petitioner Nos.4 and 5
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are sisters of petitioner No.3 and hence, the said principles

does not come to the aid of the petitioners in any way.

9. He has further placed reliance on the decision

Gupta and Another vs. State of Jharkhand and

Another. But the facts are entirely different and in the

said case, Hon’ble Apex Court has held that the Court

should not exercise the inherent powers to stifle a

legitimate prosecution but Courts failing to use power for

advancement of justice can also lead to grave injustice. In

the instant case, there is sufficient evidence as against

petitioner Nos.1 to 3. He has also relied on the decision in

vs. State of Madhya Pradesh but the facts are entirely

different as there parties were residing separately and

there it was clearly held that prosecution was only

apparently to harass the appellants after initiation of the

other proceedings before the family Court. Hence, the said

principles cannot be made applicable to the case in hand.
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10. He has also relied upon the decision in (2017)

State of Telangana but again the facts are entirely

different and cannot be made applicable. The learned

counsel for the petitioners further placed reliance on the

decision reported in (2019) 1 SCC (Cri) 605 in the case

Rep. by its Secretary, Department of Home and

others, wherein it is observed that the Court should be

careful in proceeding against distant relatives in crimes

pertaining to matrimonial disputes and dowry deaths and

relatives of the husband should not be roped in on the

basis of omnibus allegations unless specific instances of

their involvement in the crime are made out. In the instant

case, there are specific allegations against the petitioner

Nos.1 to 3. However, as against the petitioner Nos.4 and 5

it is alleged that they use to abuse the complainant and

abetted petitioner Nos.2 and 3. But when they have

abetted the parties, in whose presence that was happened

is not at all forthcoming. Except omnibus allegations no
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specific instances were quoted in this regard and

admittedly both the petitioner Nos.4 and 5 are the married

sisters. Petitioner No.4 is aged about 65 years and

petitioner No.5 is aged about 49 years and only omnibus

allegations have been made against them. Hence, in view

of the above cited decisions continuing prosecution against

them is only an abuse of process of law. Hence, as regards

them, the petition requires to be allowed, but as regards

petitioner Nos.1 to 3 there is material evidence.

11. Learned counsel for the petitioners has further

placed reliance on the decision reported in KCCR 2014 4

Karnataka and Another and unreported decision of this

Court in Crl.P.No.200884/2019 dated 28.01.2021

(Droupati W/o Kashinath Olakindi and others vs. The

State of Karnataka through Woman Police Station

Kalburgi and Another). But the facts and circumstances

are entirely different and the said principles cannot be

made applicable to the facts in hand. However, as against
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petitioner Nos.4 and 5, only omnibus allegations have been

made without quoting any specific instances and further

they are quite aged and not residing with petitioner Nos.1

to 3. Hence, continuing the proceedings against them

amounts to abuse of process of law and hence, the petition

requires to be allowed only as against the petitioner Nos.4

and 5. However, as against petitioner Nos.1 to 3, there is

sufficient material evidence to proceed and hence, I

proceed to pass the following:

ORDER

The petition is partly allowed.

Insofar proceedings against petitioner No.4

Bodemma @ Hanmanti W/o Hanmanth and petitioner No.5

Anantamma @ Hanmanti W/o Bhimaraya are concerned,

the proceedings in C.C.No.46/2019 arising out of

Shahabad Town Police Station in Crime No.135/2018

pending on the file of the Civil Judge and JMFC, Shahabad

However, the petition as against the petitioner Nos.1

to 3 is dismissed and the learned magistrate is directed to

proceed as against the petitioner Nos.1 to 3 in accordance

with law.

Sd/-

JUDGE

NS