Karnataka High Court
Sri Niteen Subhash Yeola vs State Of Karnataka on 21 November, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC:41915
WP No. 26150 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 26150 OF 2022 (GM-RES)
BETWEEN:
SRI NITEEN SUBHASH YEOLA
S/O SUBHASH ANANDA YEOLA
AGED ABOUT 39 YEARS,
R/AT HOUSE NO.2, INDIA HOUSE ESTATE
EMBASSY OF INDIA
THIMPHU, BHUTAN
...PETITIONER
(BY SRI. P P HEGDE, SENIOR COUNSEL FOR
SMT. ANUPARNA BORDOLOI.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA PS
BENGALURU-560 001.
REP. BY STATE PUBLIC PROSECUTER
Digitally signed by B
HIGH COURT BUILDING
K
MAHENDRAKUMAR
BENGALURU-560 001.
Location: HIGH
COURT OF
KARNATAKA 2. SMT VARTIKA KATIYAR
D/O SRI HEMANTH KATIYAR
AGED ABOUT 36 YEARS,
R/A VILLA NO.8, THE RETREAT BLVD
MEENAKUNTE BENGALURU KARNATAKA-562157
ALSO AT SENIOR POLICE OFFICERS RESEARCH
AND TRAINING INSTITUTE
PRIMROSE ROAD, BENGALURU-560 001.
...RESPONDENTS
(BY SRI. VENKATSATYANARAYAN A, HCGP FOR R1;
SRI. MAHESH S, ADVOCATE FOR
SRI. SHIVAJI H MANE, ADVOCATE FOR R2)
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NC: 2023:KHC:41915
WP No. 26150 of 2022
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
THE CRIMINAL PROCEDURE CODE, 1973 PRAYING TO QUASH
THE COMPLAINT DATED 01.06.2021 FILED IN PCR NO.
8855/2021 FOR OFFENCES PUNISHABLE UNDER SECTIONS
166, 506, 509, 504 AND 354(D) OF IPC AND SECTION 51 (B)
OF THE DISASTER MANAGEMENT ACT, 2005(ANNEXURE A)
AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The respondent No.2 filed a private complaint under Section 200 of Cr.PC alleging that, her marriage with the petitioner - accused was solemnized on 7.11.2011, and from the said wedlock, a male child was born on 26.10.2013. The petitioner and respondent No.2 started to reside separately due to marital discord. The petitioner filed a petition for decree of divorce in HMA No.252/2020 in the Family Court, Patiala House, New Delhi. It is further alleged that, on 29.5.2021, the accused came to Bangalore unauthorisedly during the period of lock down violating the government order and had been following the complainant. It is further alleged that the accused is working in the Ministry of External Affairs at New Delhi. He came to the office of the complainant looking for her to cause harm and entered M.S. Building without permission by misusing his official position, and he was informed by the office staff that the complainant was in ADGP, CID chambers. He came there following her, however, the complainant had left the office by that time.
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2. The learned Magistrate referred the matter to the police for investigation under Section 156(3) of Cr.PC. The police, after the investigation, submitted the `B' report to the learned Magistrate. The learned Magistrate rejected the `B' report and the private complaint was referred to the Assistant Commissioner of Police to appoint a new Investigating officer, and directed to conduct investigation afresh under Section 156(3) of Cr.PC, and submitted the final report at the earliest. Thereafter, the police, after the investigation, submitted the charge sheet for the offences punishable under Section 354(D) of IPC.
3. Sri P P Hegde, learned Senior Counsel for the petitioner submits that, even accepting the allegation made against the petitioner on the face of it does not satisfy the essential elements to constitute the offence punishable under Section 354(D) of IPC.
4. The learned counsel for the respondent No.2 files a statement of objections, and the same is placed on record. He submits that the offence under Section 354(D) of IPC can be invoked against the accused - husband, and therefore, the contention of the learned counsel for the petitioner that it cannot be invoked against the husband is without any substance . He places reliance on the decision of the Hon'ble Supreme Court in the case of Independent Thought -vs- Union of India and another (2017) 10 SCC 800. The Hon'ble Supreme Court at para-186 has held as under:
-4-NC: 2023:KHC:41915 WP No. 26150 of 2022 "186. One more ground for holding that Exception 2 to Section 375 IPC is discriminatory is that this is the only provision in various penal laws which gives immunity to the husband. The husband is not immune from prosecution as far as other offences are concerned.
Therefore, if the husband beats a girl child and has forcible sexual intercourse with her, he may be charged for the offences under Sections 323, 324, 325 IPC, etc. but he cannot be charged with rape. This leads to an anomalous and astounding situation where the husband can be charged with lesser offences, but not with the more serious offence of rape. As far as sexual crimes against women are concerned, these are covered by Sections 354, 354-A, 354-B, 354-C, 354-D IPC. These relate to assault or use of criminal force against a woman with intent to outrage her modesty; sexual harassment and punishment for sexual harassment; assault or use of criminal force to woman with intent to disrobe; voyeurism; and stalking respectively. There is no exception clause giving immunity to the husband for such offences. The Domestic Violence Act will also apply in such cases and the husband does not get immunity. There are many other offences where the husband is either specifically liable or may be one of the accused. The husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC. It does not stand to reason that only for the offence of rape the husband should be granted such an immunity especially where the "victim wife" is aged below 18 years i.e. below the legal age of marriage and is also not legally capable of giving consent to have sexual intercourse. Exception 2 to Section 375 IPC is, therefore, discriminatory and violative of Article 14 of the Constitution of India, on this count also."
5. He further submits that the charge sheet material discloses the commission of the offences , and the veracity of the allegations can be gone into only at the time of trial,, and sought for dismissal of the petition.
6. Considered the submissions of the learned counsel for the parties.
-5-NC: 2023:KHC:41915 WP No. 26150 of 2022 Section 354D of the Indian Penal Code deals with the offense of stalking. To constitute an offense under Section 354D, certain essential elements must be satisfied:
1. Following or contacting: The accused must engage in wilful conduct involving following someone or attempting to establish contact against their will, repeatedly. This can be physical or through any form of communication.
2. Creating fear or distress: The accused's actions must cause fear, alarm, or distress to the victim, either by direct or indirect means.
3. Persistence: The act of stalking must be persistent, showing a pattern of behavior that alarms or causes distress to the victim.
4. Against the will of the victim: The victim's lack of consent or explicit objection to the accused's conduct is crucial to establishing the offense. The accused's actions must be unwelcome or against the explicit wishes of the victim.
5. Harassment or Intrusion: The accused's actions must amount to harassment or intrusion upon the victim's privacy, causing emotional or mental distress.-6-
NC: 2023:KHC:41915 WP No. 26150 of 2022
6. Criminal intent: The accused must have the intention to cause the victim to fear for their safety or the safety of others, or to cause emotional distress or harm.
7. In the instant case, the allegation is that, the petitioner without permission entered the M.S. Building to visit the respondent No.2, and there is no allegation that, the petitioner repeatedly followed the respondent No.2 to foster personal interaction repeatedly despite a clear indication of disinterest by the respondent No.2. Even accepting the allegations against the Petitioner on the face of it, the same does not satisfy the essential element to constitute the offence punishable under Section 354D. Therefore, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following:
ORDER
i) Writ petition is allowed.
ii) The impugned proceedings in CC No.37746/2022 pending on the file of the learned XXXIX Addl.Chief Metropolitan Magistrate, Bengaluru, stands quashed.
Sd/-
JUDGE BKM