Karnataka High Court
Sri. Ajay V Krishnan vs State Of Karnataka on 13 July, 2023
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JULY 2023
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.11847 OF 2022
BETWEEN
1 . SRI. AJAY V KRISHNAN
S/O V S KRISANAN
AGED 41 YEARS
2 . SRI V S KRISNAN
S/O SUBRAMNIAN
AGED 74 YEARS
3 . SMT USHA KRISHNAN
W/O V S KRISHNAN
AGED 70 YEARS
PETITIONERS NO.1 TO 3 ARE
R A/T NO.120,
MAHAVEER SPRINGS
15TH MAIN, 17TH CROSS
SARAKKI KERE
J P NAGAR, 5TH PHASE
BENGALURU - 560 078
4 . SMT RANJINI V K
W/O SHANKAR RAMANI
AGED 35 YEARS
5 . SRI SHANKAR RAMANI
S/O V N RAMANI
AGED 39 YEARS
PETITIONERS NO.4 AND 5
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ARE R A/T FLAT NO.303
3RD FLOOR, ABHEE LOTUS
RADHA REDDY LAYOUT
SARJAPURA ROAD
DODDAKANANALLI
CAMELRAN
BENGALURU - 560 035
... PETITIONERS
(BY SRI SHAIJU KUMAR, ADVOCATE)
AND
1. STATE OF KARNATAKA
BY BASAVANAGUDI WOMEN POLICE STATION
BENGALURU
REPRESENTED BY SPP
HIGH COURT COMPLEX
BENGALURU 560001
2. ARCANA N J
D/O N S JAYARAM
AGED 40 YEARS
R/AT B 5-1404
BDA INDRAPRASTA
VALAGERE HALLI 5TH PHASE
MYSORE ROAD
BENGALURU - 560 059
... RESPONDENTS
(BY SRI KIRAN S. JAVALI, SPP-I ALONG WITH
SRI S. VISHWA MURTHY, HCGP FOR R1
SRI K. ABHINAV ANAND, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE CHARGE SHEET IN
C.C.NO.33672/2022 DATED 27.10.2022 AND PROCEEDINGS IN
C.C.NO.33672/2022 ON THE FILE OF THE 37TH A.C.M.M.
COURT, BENGALURU UNDER SECTION 498A AND 417 OF THE
IPC 1860 VIDE ANNEXURE-D.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.6.2023, THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
This petition filed by the petitioners/accused Nos.1 to 5 under section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.33672/2022 pending on the file of 37th ACMM Bengaluru, arising out of Crime No.238/2022 registered by Basavanagudi Women police station and charge sheeted for the offence punishable under Sections 498A, 417 of Indian Penal Code (herein after referred as IPC).
2. Heard the arguments of the learned counsel for the petitioners, learned SPP-I, learned HCGP for the State and learned counsel for respondent No.2.
3. The case of the prosecution is that on the complaint of respondent No.2 filed on 11.8.2022 alleging that the first petitioner had married respondent No.2 on 26.5.2019 at Rangaswamy Kalyana Mantapa, Bengaluru after the marriage she resided at matrimonial home. The petitioner No.4 who is sister and petitioner No.5 is brother-in-law of the petitioner No.1. The petitioner No.4 came to maternal home for second delivery and stayed at the house of petitioner No.1 for 4 months. 4 The relationship between petitioner No.1 and respondent No.2 was normal till February 2021. However, inspite of completion of one and half years of marriage, respondent No.2 had not become pregnant, hence the family approached the doctor for medical checkup and the doctors informed that she do not have any problem in getting pregnancy, but they informed the count in the sperm of the petitioner no.1 was less, hence he has been provided some tablets. Later, they also advised petitioner No.1 to approach the fertility hospital, accordingly, treatment was given. Further, respondent No.2 also undergone a surgery for Polyps on 21.06.2021 and after the same, she was perfectly ready for pregnancy. The petitioner No.1 was shown to Dr. Tarun where it was diagnosed that petitioner No.1 was suffering from Varicocele, Grade 3-4 disease and he his suffering from the same for last 12 years. But he has not intimated the same to the complainant and he has suppressed the same and married complainant. It was also decided to go for ICSI treatment and at that time, the father of the petitioner No.1 i.e. petitioner No.3 asked the respondent No.2 to leave the petitioner no.1 and adopt a child from any of the ashrama. She informed the same 5 to the petitioner No.1, he also told to leave him and the petitioner Nos.4 and 5 supported the petitioner no.1.
4. She further alleged that on 8.10.2021, both petitioner No.1 and complainant undergone ICSI surgery and three fetus were formed and frozen and kept in Milan Hospital. They also informed the petitioner No.1 to go for surgery for varicocele but he has refused. After 18.12.2021 the petitioner No.1 neglected the complainant when petitioner No.4 came to second delivery. Both petitioner Nos.1 and 3 abused her and shouted at her. When the petitioner no.1 was requested to come to Milan hospital for regular treatment, he refused to come to the hospital. She further alleges that on 1.1.2022, the petitioner Nos. 1 and 5 came to her guardian's flat and started abusing her in filthy language and acted in indiscipline manner and went back. Her father contacted the petitioner No.2 (father of petitioner No.1) and requested for transmission of eggs and complained against petitioner No.1 for not taking proper treatment, however, petitioner No.1 refused to accept the said transmission. That on 29.4.2022 herself and her parents went 6 to Palakkad to attend the 100th Birth day of grandfather of petitioner No.1 where petitioner No.1 was present and insulted them by saying that they were not invited and hence the complainant family came back from the door step.
5. It is further alleged that from 30.11.2021 she stayed in the parents house due to physical and mental harassment of petitioner No.1, she took various treatment in the hospital and now the petitioner No.1 was blackmailing after the ICSI treatment. In order to keep the petitioner No.4/sister of petitioner No.1, in the house, they did not allow the complainant to enter the matrimonial house and used to declare she is not the wife of petitioner No.1. Later a panchayat was held on 7.7.2022 with the family members of the petitioner and her relatives. All the petitioners insulted the complainant during the panchayat, hence she filed a complaint to take action after registering the FIR. The police investigated the matter and filed the charge sheet. hence, the petitioner challenged the same by filing this petition.
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6. The learned counsel for petitioner has contended that the allegation made in the complaint will not attract Section 498A of IPC. Absolutely there is no evidence against the petitioner Nos.2 to 4. The petitioner no.1 said to be suffering from varicocele disease which is common in men/male person. That is not a ground for attracting Section 498A of IPC. The petitioner No.2 is 75 years old and petitioner No.3 is a diabetic patient , her leg was amputated. The petitioner No.4 married to petitioner No.5 and are residing separately and in order to harass them, a false complaint has been filed to harass the petitioners hence prayed for allowing the petition.
7. Per contra, learned SPP-I objected the petition mainly on the ground, the police investigated the matter and filed charge sheet. If at all any grievance, the petitioner shall approach Magistrate for discharge under Section 239 of Cr.P.C but without approaching the Magistrate filing petition for quashing is not correct. There is sufficient material placed on record to show that the petitioner committed the offence, therefore prayed for dismissing the petition. In support of his 8 contention the SPP-I relied upon the judgment of Hon'ble Supreme court in the case of , [1] Kaptan Singh Vs. State of Uttar Pradesh reported in (2021) 9 SCC 35, [2] XYZ Vs. State of Gujarat reported in 10 SCC 337, [3] CBI Vs. Arvind Khanna reported in (2019) 10 SCC 686, and [4] Neeharika Infrastructure Pvt.
Ltd. Vs. State of Maharashtra reported in 2021 SCC Online SC 315.
8. The learned counsel for respondent No.2 contended that there are four relatives who were examined by Investigating Officer other than the family members of the complainant. They have spoken about the mental cruelty caused by the petitioners. The matter was thoroughly investigated by the police and filed charge sheet and therefore prayed for dismissing the petition. 9
9. Having heard the arguments, perused the records, on perusal of the same, the petitioner No.1 married the respondent No.2, both of them were divorcees and it was second marriage for both of them. After the marriage, it was revealed that the petitioner No.1 is suffering from Varicocele, Grade 3-4 disease and respondent No.2 was unable to become pregnant due to the medical condition of petitioner No.1 and he was unfit for marriage life. Both of them took treatment in various hospital and also they took treatment in Milan's Fertility hospital, undergone ICSI treatment and with the consent, three embryos were formed and stored in the freezer and it has to be transferred to respondent No.2, but the petitioners refused and they harassed her mentally. They created ugly scenes and there was continuous quarrel between petitioner No.1 and respondent No.2 which reveals the petitioner No.1 was suffering from Varicocele disease and his medical condition is unfit for begetting a child, therefore with the help of scientific treatment, the embryos were formed by way of ICSI treatment and it was to be transferred to respondent No.2. But the same was resisted by petitioners which led to mental harassment to respondent No.2. 10 Though petitioner no.1 filed a case, but he has not stated that he was suffering from Vericocele and unable to beget the child, but he has given other reasons for divorce.
10. From the statements of the victim and family which reveals the family especially petitioner No.1 was continuously harassing the complainant even though he was having some problem with him, but he was making allegation against the complainant respondent. The petitioner Nos.2 and 3 are the parents of the petitioner No.1. The real dispute between the husband and wife in respect of their family sexual affairs may not be known to them and they might have supported accused No.1 who is a son. But infact the Vericocele problem with the petitioner No.1 who might have not disclosed to his parents and he was purposely avoiding the IVF treatment by going to the hospital. Therefore, it cannot be said the accused Nos.2 to 5 were having knowledge about the suffering of the accused No.1 regarding Vericocele problem and any other problem with him. Therefore, the parents and family members are not liable to be prosecuted without any sufficient material placed on record to 11 show they actually harassed the complainant physically or mentally. On the other hand, there is sufficient material placed on record to show that the petitioner No.1 committed offence for facing the trial for the offence punishable under Section 498A of IPC by suppressing the fact, married the complainant is nothing but cheating the complainant.
11. Though the SPP-I produced various judgment of the Hon'ble Supreme Court that the petitioners shall approach the Magistrate and thereafter the Session judge then only the accused shall approach this court under 482 of Cr.p.C is not sustainable as the power of High court for quashing the criminal proceedings under Section 482 of Cr.P.C is permissible in view of the judgment of Hon'ble Supreme Court State of Haryana Vs Bhajan lal's reported in AIR 1992 SC 604 and various pronouncement of Hon'ble Supreme Court. Even in the recent judgment Hon'ble Supreme Court has said the family members cannot be dragged unnecessarily by implicating them in 498A of IPC cases.
Accordingly, I pass the following order, 12 The petition is allowed in part.
The petition filed by petitioner No.1 is dismissed. The petition filed by the petitioner Nos.2 to 5, are hereby allowed.
The criminal proceedings against petitioner Nos.2 to 5, in C.C.No.33672/2022 pending on the file of 37th ACMM Bengaluru, arising out of Crime No.238/2022 registered by Basavanagudi Women police station, is hereby quashed.
Sd/-
JUDGE AKV