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M Justin Samson vs State Of Karnataka By on 28 December, 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 28TH DAY OF DECEMBER, 2018

BEFORE

THE HON’BLE MR. JUSTICE H. P. SANDESH

CRIMINAL PETITION NO.9561 OF 2018

Between:

M.Justin Samson,
S/o Manoah
Aged about 38 years
R/at Joy-Prayer House,
No.38, Guru Reddy Layout,
Akash Nagar, A.Narayanapura,
Dooravani Nagar Post,
Bengaluru-560 016. …Petitioner

(By Sri.Hashmath Pasha, Senior Advocate for
Sri.Syed Muzakkir Ahmed, Advocate)

And:

State of Karnataka by:
Mahadevapura Police Station,
Bengaluru. …Respondent

(By Sri.Divakar Maddur, HCGP)

This Criminal Petition is filed under Section 439 of
Cr.P.C. praying to enlarge the petitioner on bail in Crime
No.578/2018 of Mahadevapura Police Station, Bengaluru
City for the offence punishable under Sections 498A,
420, 468, 471 read with Section 34 of IPC and Sections 3
and 4 of Dowry Prohibition Act.
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This Criminal petition coming on for Orders this
day, the Court made the following:-

ORDER

Heard the arguments of learned counsel for the

petitioner and learned HCGP.

2. The contention of the petitioner is that police

have registered a case against this petitioner and other

five persons in Crime No.578/2018 for the offences

punishable under Sections 498A, 420, 468, 471 read

with Section 34 of IPC and Section 3 and 4 of Dowry

Prohibition Act.

3. Further, he contends that the marriage of the

petitioner and the complainant was solemnized on

28.09.2014 in Frazer Town Church as per Christian

tradition and customs. It is alleged that at the time of

marriage, as per demand Rs.5,00,000/- and jewels were

given as dowry and after the marriage complainant

resided in the house of the husband for only three
3

months in Bengaluru. Thereafter, the petitioner, who was

working in Malaysia as Lecturer in the College, went

back to Malaysia after three months of marriage along

with the complainant. Thereafter, the other accused are

also said to have gone to Malaysia as tourists for a period

of one month and returned back. The complainant

continued to reside in Malaysia with her husband till

2016 for a period of two years and thereafter, returned

back to India.

4. In the meanwhile, petitioner got fresh

appointment in Qatar Country. Therefore, he went to

Qatar from Malaysia and started working there. In the

year 2016, the petitioner came to Bengaluru and got

examined the complainant medically because her

pregnancy was not sustaining. Since, the petitioner went

back to Qatar, the complainant went back to her parents

house and started to reside there. Since, the petitioner

did not maintain her nor sent money to her for

maintenance and since he had asked her for divorce and
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go away, the complainant filed a complaint before

Mahadevapura Police on 11.11.2017, upon which NCR

No.942/2017 was registered. Thereafter, again on

25.08.2018, she lodged one more complaint before

Women Police Station, East zone, Bengaluru, which is

also registered in NCR No.420/2018.

5. The petitioner returned from Qatar Country to

Bengaluru on 03.11.2018 and resided with his parents.

Since, complainant-wife had lodged a complaint in

Mahadevapura Police Station, Bengaluru and also

Women Police Station, East Zone, Bengaluru, which was

registered in NCR, the Police had called him for enquiry.

Then, the petitioner explained as to how the complainant

has not led the marital life with him. Therefore, they

applied for decree of divorce before the Hon’ble IV

Additional Family Court, Bengaluru in

M.C.No.5408/2016 by raising various grounds including

the ground that she is suffering from HIVS and has

produced various medical records in this regard. The
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Family Court after hearing the arguments of both the

parties and on considering the relevant materials on

record, dismissed the divorce petition filed by the

petitioner against his wife. The Advocate, who was

appearing for petitioner before the trial Court, in the

month of January 2018, had informed the petitioner

telephonically that divorce petition was allowed. The

complainant had lodged a complaint before the

Mahadevapura Police Station alleging that petitioner was

insisting for divorce and she wants her husband and she

does not want divorce. Since, the petitioner was in

Malaysia, his father Mr.Manoah was called by the

respondent-Police and he explained the fact that the

petitioner being employed in Malaysia is unable to attend

immediately but, he will try to secure him.

6. In the meanwhile, the complainant lodged

another complaint on 25.08.2018, before the Women

Police Station, East Zone, Bengaluru, which was also

treated as NCR.No.420/2018. Then the petitioner had
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produced the Xerox copy of the decree of divorce before

the Police which was given by his Advocate to his father

and stated that the marriage between himself and the

complainant has been dissolved by virtue of decree of

divorce. When the petitioner was called upon to appear

before the Police Station on 03.12.2018, his appearance

being secured, come to know that M.C. case in

M.C.No.5408/2016 was dismissed. Petitioner was

shocked to hear the fact of dismissal of his divorce

petition. Till then, he was not aware of the fact that his

divorce petition was dismissed. He was under the

bonafide belief that his divorce petition has been allowed

and decree has been passed in his favour as told by his

Advocate. He was not indulged in any such activities of

tampering any document. Copies are produced at

Annexures-A to D to this petition.

7. Learned counsel for the petitioner contends

that accused Nos. 2 to 5 have been granted anticipatory

bail and this petitioner, who is a Lecturer working at
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Malaysia, was not aware of the dismissal of decree of

divorce and the Advocate gave a copy of the decree of

divorce substituting the dismissal as allowed. This

petitioner has not played any fraud on his part in

preparing document of allowing the decree petition and

he is ready to abide by any conditions that may be

imposed by this Court. He is already in judicial custody

and police have interrogated him since 03.12.2018. There

is no necessity to keep the petitioner in judicial custody

for further interrogation. Hence, he prays that petitioner

may be enlarged on bail.

8. Learned counsel for the petitioner in support

of his arguments referred to the judgment of Hon’ble

Apex Court in the case of Arnesh Kumar V/s. State of

Bihar and another reported in (2014) 8 SCC 273.

9. Per contra, learned HCGP opposes the bail

application contending that the petitioner has indulged

in creating false document of decree of divorce even
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though the Family Court has dismissed the divorce

petition. He also tendered the copy of the order of the

Court before the Police Station. And further submits that

he had gone to the extent of creating false Court

document of decree of divorce and he has committed

heinous offence and the same is punishable for seven

years. Hence, he is not entitled for grant of bail.

10. Learned HCGP contends that this Court

cannot show any lenience to the petitioner as he has not

only committed the offence punishable under Section

498A but has also involved in tampering the document

and forgery. Hence, he prays for dismissal of the petition.

11. After hearing the arguments of learned

counsel for the petitioner and learned HCGP for the

respondent-State, the point that arise for my

consideration is whether the petitioner has made out

grounds to grant the bail for the alleged offences in

respect of Crime No.578/2018?

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12. The main contention of the petitioner’s

counsel in his arguments, is that his presence is not

required now since he is already in judicial custody and

police have already investigated the petitioner and as a

measure of punishment, he cannot be kept in judicial

custody. This Court has to consider the nature of the

allegations and gravity of the offences and since the

petitioner is a Lecturer by profession and working in

Malaysia, he has not caused any kind of cruelty to his

wife. Petitioner is ready to abide by any conditions that

may be imposed by this Court.

13. Per contra, learned HCGP in his arguments

contended that when divorce petition was dismissed, the

petitioner has indulged in creating the document that it

was allowed.

14. In reply to the arguments of learned HCGP,

petitioner’s counsel contend that the document of Family

court are verified and there is no tampering or creating of
10

the Court documents. Only at the instance of the

Advocate who has been arraigned as accused No.6,

document came into existence. Petitioner has no

knowledge about the manipulation of said document.

15. Considering the grounds urged by the

petitioner’s counsel and respondent’s counsel, this Court

has to examine the allegations made in the complaint.

On perusal of the complaint, the complainant in her

complaint has narrated the date of marriage, subsequent

development and also mentioned about the registration

of NCR Nos.942/2017, 420/2018 registered before

jurisdictional Police and also before Women Police

Station. But, in the complaint, she contends that her

husband came to Bengaluru in the year 2018 when he

was called upon to appear before the Police Station. He

produced the copy of the decree of divorce passed by the

Family Court in MC.No.5408/2018 and stated that the

divorce petition was allowed and gave copy of the said

order to the Police. Immediately, the complainant went
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and verified the records of the Family Court. On

verification, it was noticed that divorce petition before the

Family Court was rejected and same was altered and

manipulated as allowed. Hence, complaint was registered

against this petitioner and others including Advocate of

the petitioner in trial Court who has been arraigned as

accused No.6 in this petition.

16. Now, it is the contention of the petitioner’s

counsel that the Family court records was not tampered

and the learned counsel did not dispute the fact that

document was tendered before the Police which shows

decree of divorce allowed instead of dismissed. Learned

counsel also submits that the petition filed by this

petitioner before the Family Court was rejected. Now the

question is, who has manipulated the documents.

17. The learned counsel for the petitioner has

made an allegation against the learned counsel, who has

appeared before the trial Court has manipulated the
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document and has given the same to the petitioner.

Petitioner is in judicial custody and investigation is not

yet completed. During the course of investigation, the

police have to investigate the matter that at whose

instance the document came to be manipulated and was

indulged in forgery of making petition as allowed instead

of dismissal. No doubt, document of Family Court was

not the document which was produced before the Police

by the petitioner when he was called upon to appear

before the Police but the manipulated document is

produced.

18. On perusal of allegation, document is

manipulated that too Court Order and offence is serious

in nature and I am of the opinion that when the Court

order was tampered substituting the dismissal as

allowed, it requires detailed investigation that at whose

instance document has been manipulated. The learned

counsel appearing for the petitioner has relied upon the

judgment of Apex court in the case of Arnesh Kumar
13

(Supra) wherein a direction was given that if the offence

is under Section 498A of IPC, the right of liberty of the

accused cannot be contained. But the factual aspect is

different from the offences alleged against the petitioner

herein. In this case, not only the offence of Section 498A

of IPC is invoked but also the other offences of Sections

468 and 471 of IPC are invoked apart from Section 420 of

IPC.

19. Having considered the nature and gravity of

the offence and since all allegations are against this

petitioner that he has indulged in preparing the decree

copy by substituting dismissal as allowed, I am of the

opinion that provision under Section 439 of Cr.P.C.

cannot be invoked to enlarge the petitioner on bail during

the course of investigation and hence, I pass the

following order.

ORDER

i) The criminal petition is dismissed.
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ii) The petitioner can approach the Court

after completion of the investigation.

SD/-

JUDGE

SB

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