Karnataka High Court
Mrs Manish Bajpe vs The State Of Karnataka on 19 September, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 19th SEPTEMBER, 2014
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO.8130/2013
BETWEEN
MRS. MANISH BAJPE,
D/O. B.MUNDAPPA,
HINDU, AGED 26 YEARS,
H-43, "KRISHNA", 1ST MAIN,
MANJUNATH LAYOUT, M.G.PALLYA,
BOMMANAHALLI,
BANGALORE- 560 068. ... PETITIONER
(BY SRI.K. SHASHIKANTH PRASAD, ADV.,)
AND
1. THE STATE OF KARNATAKA,
BY MANGALORE EAST POLICE STATION,
BY STATE PROSECUTOR,
BANGALORE- 560 001.
2. MR. MADHUKAR.B,
S/O MR.UMESH KUMAR,
AGED 34 YEARS,
107, IRISH APARTMENT,
BEJAI NEW ROAD,
MANGALORE- 575 001. ... RESPONDENTS
(BY SRI.B.J.ESHWARAPPA, HCGP FOR R1
SRI B.N. SURESH, ADV. FOR R2.)
2
THIS CRL.P IS FILED U/S.482 OF CR.P.C
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.305/2013 ON THE FILE OF II A.C.M.M.,
MANGALORE.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for petitioner, learned counsel for respondent No.2 and the learned High Court Government Pleader for respondent No.1 - State. Perused the records.
2. Though the learned counsel for the respondent No.2 has filed an Application for vacating the stay Order granted by this Court, by consent of the counsels appearing for the parties, the matter is heard on merits of the case.
3. The present petition is filed seeking quashing of the entire proceedings in CC No.305/2013 on the file of the II Addl. Chief Judicial Magistrate, Mangalore in 3 registering a case against the petitioner and another for the offence punishable under sections 497, 415, 504, 506 read with Section 34 of IPC.
4. The brief factual matrix that emanate from the records are that:
4.1 The complainant (second respondent herein) is none other than the husband of the Accused No.1. It is alleged in the complaint that accused Nos.1 & 2 have developed illicit intimacy with each other. Therefore, the complainant has filed a complaint alleging offence of adultery u/s.497 of IPC and also alleged other offences being committed by them.
5. The learned counsel for the petitioner herein contends that wife cannot be prosecuted for the offence punishable under section 497 of IPC. Even if the entire allegations made in the complaint is translated into evidence, at this stage, it does not disclose any allegations which can constitute an offence u/s.415, 4 504 or 506 of IPC. Therefore, the complaint itself is not maintainable and the same is liable to be quashed.
6. The learned counsel for respondent No.2 tried to convince me that the allegations made in the complaint are sufficient and broadly attract the alleged offences. Therefore, at this stage, the proceedings cannot be quashed.
7. After hearing the arguments of the learned counsel for the parties, this Court has to consider whether the allegations made in the complaint attract any of the penal provisions or not, so far as it relates to this petitioner is concerned. There is no dispute with regard to the relationship between the complainant and the petitioner as husband and wife.
8. The complainant has filed a case in PC No.52/2012. It is just and necessary to have few facts on which the complainant would like to prosecute the 5 accused persons. At paragraph 7 of the complaint, it is specifically averred that -
"on 16.7.2012 at around 2.30 p.m., when the complainant had come to lunch to his home at Bejai, the entrance door of the house was closed. A1 had opened the door of the house and when the complainant went to the toilet, the door was shut from inside and when he asked A1, A1 with afraid tone, frightened said that door might be tight. Complainant got suspicion knocks the door, at that time A2 came out of the toilet and when the complainant enquired about the person, A2 replied that "you better ask your wife who I am" and while going he also threatened the complainant with filthy language that he will kill him if he come to his matter."
Except this, nothing is there on record to show that A1 threatened the complainant at any point of time or abused him with filthy language so as to attract either Section 415 or 504 or 506 of IPC.
6
9. The next important question that is raised here is:
"Whether, husband can prosecute his wife for the offence punishable under Section 497 of IPC."
Section 497 of IPC reads thus -
"497. Adultery - Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."
10. On meticulous and meaningful reading of the above said provision, it attracts only against a person who knowing fully well and reason to believe that the 7 lady with whom he had sexual intercourse is the wife of another, such person is only liable for punishment. It is only a male person, who is liable to be prosecuted under this particular provision.
11. It is worth to note a decision of the Hon'ble Apex Court reported in AIR 1988 SC 835 between Revathi Vs. Union of India and another wherein the Hon'ble Apex Court has categorically held that -
"Section 497, Penal code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and wife are disabled from striking each other with the weapon of criminal law."
12. Looking to the above said facts and circumstances of the case and the legal aspects 8 involved, in my opinion the learned Magistrate has committed a serious error in taking cognizance of the above said offence and also registering a case against the petitioner herein who is none other than the wife of the complainant.
13. It is also worth to note a decision of the Hon'ble Apex Court between State of Haryana & Others Vs. Bhajan Lal and others reported in 1992 (1) SCC 355, wherein the Hon'ble Apex Court has made certain guidelines which reads thus -
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where, the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a 9 just conclusion that there is sufficient ground for proceeding against the accused.
(3) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
14. In view of the above said principles laid down by the Hon'ble Apex Court and the facts and circumstances of the case of the present case and on perusal of the complaint averments, it is clear that no averments are available in order to attract Section 415 or 504 or 506 of IPC so far it relates to the petitioner is concerned.
15. Further added to that, on meticulous reading of Section 497 of IPC and also in view of the above said decision, there is a bar to take cognizance against the wife to prosecute her on the complaint of the husband 10 u/s.497 of IPC. Hence, in my opinion, the proceedings against the petitioner is an abuse of process of law. Therefore, the same deserves to be quashed.
16. Accordingly, I proceed to pass the following:
ORDER The petition is allowed. Consequently, the entire proceedings in CC No.305/2013 on the file of the II Addl. CJM, Mangalore, so far it relates to the present petitioner is concerned, is hereby quashed.
SD/-
JUDGE PL