Smt Afreen vs State Of Karnataka on 19 July, 2024

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Karnataka High Court

Smt Afreen vs State Of Karnataka on 19 July, 2024

Bench: M.Nagaprasanna

Reserved on : 28.06.2024
Pronounced on : 19.07.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF JULY, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.9653 OF 2023
C/W
WRIT PETITION No.19687 OF 2023 (GM-RES)
WRIT PETITION No.23864 OF 2023 (GM-RES)

IN CRIMINAL PETITION No.9653 OF 2023

BETWEEN:

1 . MR. MOHAMED SHAHID
S/O MOHAMED YOUSUFF SAIT
AGED ABOUT 31 YEARS.

2 . MRS. HOORNAZ BANU
W/O MOHAMED YOUSUFF SAIT
AGED ABOUT 58 YEARS.

BOTH ARE RESIDING AT:
FLAT NO.F-01, NO.37/1,
BERLIE STREET
LANGFORD TOWN
INCLOVER HAVEN
BENGALURU - 560 025.
... PETITIONERS
(BY SRI SIDDHARTH B.MUCHANDI, ADVOCATE)
2

AND:

1. STATE OF KARNATAKA
BY BASAVANAGUDI
WOMEN POLICE STATION
BASAVANAGUDI, BENGALURU - 560 070
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560 001.

2. MRS. AFREEN
W/O MOHAMED SHAHID
AGED ABOUT 26 YEARS
FLAT NO.102, 1ST FLOOR
197 FALCON, RENAISSANCE
R.V.ROAD CROSS
OPP. DASS COMPOUND
BASAVANAGUDI
BENGALURU - 560 004.
... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R1;
SRI C.V.NAGESH, SR. ADVOCATE FOR
SRI NAGARAJ R., ADVOCATE FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE CHARGE SHEET AND THE ENTIRE
PROCEEDINGS IN C.C.NO.11622/2023 FOR THE ALLEGED OFFENCE
P/U/S.498-A, 504 R/W SEC.34 OF IPC AND SEC.3 AND 4 OF DP ACT
REGISTERED BY THE RESPONDENT NO.1 POLICE (BASAVANAGUDI
WOMEN P.S.,) PENDING ON THE FILE OF THE LEARNED 37th
ADDITIONAL CMM COURT BENGALURU VIDE ANNEXURE C AND D.
3

IN WRIT PETITION No.19687 OF 2023

BETWEEN:

SMT. AFREEN
W/O MOHAMED SHAHID
AGED ABOUT 26 YEARS
RESIDING AT FLAT NO.102,
1ST FLOOR, 197
FALCON RENAISSANCE
R.V.ROAD CROSS,
OPP. DASS COMPOUND
BASAVANGUDI,
BENGALURU - 560 004.
... PETITIONER
(BY SRI C.V.NAGESH, SR. ADVOCATE FOR
SRI NAGARAJ R., ADVOCATE)

AND:

1 . STATE OF KARNATAKA
SHO, ASHOK NAGAR
POLICE STATION, BENGALURU
REPRESENTED BY HCGP,
HIGH COURT OF KARNTAKA
BENGALURU.

2 . MOHAMED SHAHID
AGED ABOUT 31 YEARS
RESIDING AT: FLAT F-01, INCLOVER
HAVEN NO.37/1, BERLIE STREET
LANGFORD TOWN,
BENGALURU - 560 025.
... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R1;
SRI SIDDHARTH B.MUCHANDI, ADVOCATE FOR R2)
4

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIRST INFORMATION REPORT
REGISTERED IN CRIME NO.251 OF 2023 ANNEXURE-A FOR THE
OFFENCES PUNISHABLE U/S 307, 380, 411, 506 R/W SECTION 511
AND 34 OF THE INDIAN PENAL CODE, 1860 AND SECTION 3 OF
THE KARNATAKA PREVENTION AND ERADICATION OF INHUMANE
EVIL PRACTICES AND BLACK MAGIC ACT, 2017 IN PURSUANT TO
FALSE AND FRIVOLOUS COMPLAINT BY THE R2 ANNEXURE-B IN
PCR NO.51647 OF 2023 QUA THE PETITIONER.

IN WRIT PETITION No.23864 OF 2023

BETWEEN:

SHABAZ MASOOM
(WRONGLY MENTIONED AS
SHAHBAZ @ MASOOM)
S/O OF MR. SADATH ULLA
AGED ABOUT 31 YEARS
RESIDING AT NO. 50
RANAJI RAO ROAD
BASAVANAGUDI
BENGALURU - 560 004.
... PETITIONER
(BY SRI C.V.NAGESH, SR. ADVOCATE FOR
SRI MADHUR A.KALYANSHETTY, ADVOCATE)

AND:

1 . STATE OF KARNATAKA
REPRESENTED BY
STATION HOUSE OFFICER
ASHOK NAGAR POLICE STATION
BENGALURU - 560 025.
5

2 . MOHAMED SHAHID
S/O MOHAMED YOUSEF
AGED ABOUT 31 YEARS
RESIDING AT FLAT F-01
INCLOVER HAVEN
NO. 37/1, BERLIE STREET
LANGFORD TOWN
BENGALURU - 560 025.
... RESPONDENTS
(BY SRI THEJESH P. HCGP FOR R1;
SRI SIDDHARTH B.MUCHANDI, ADVOCATE FOR R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE IMPUGNED COMPLAINT DATED
21.02.2023 FILED BY R-2 PENDING ON THE FILES OF THE
LD.MAGISTRATE IN PCR NO.51647/2023. (ANNEXURE-B). IN SO
FOR AS PETITIONER CONCERN ONLY AND ETC.,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 28.06.2024, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

Protagonists in these cases are wife, husband, mother-in-law

and a friend of the wife. Criminal Petition No.9653 of 2023 is

preferred by the husband and mother-in-law of the wife who are

accused Nos. 1 and 2 calling in question the proceedings initiated in

C.C.No.11622 of 2023 pending before the 37th Additional Chief
6

Metropolitan Magistrate, Bangalore arising out of crime in Crime

No.22 of 2023 registered for offences punishable under Sections

498A, 323 and 34 of the IPC and Sections 3 and 4 of the Dowry

Prohibition Act, 1961 ('the 1961 Act' for short). Writ Petition

No.19687 of 2023 and Writ Petition No. 23864 of 2023 are

preferred by the wife who is accused No.1 and accused No.2 who is

said to be known to the wife calling in question crime in Crime

No.251 of 2023 registered pursuant to the private complaint filed

by the husband in PCR No.51647 of 2023 pending before the 29th

Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru

for offences punishable under Sections 380, 411, 506, 307, 511 and

34 of the IPC and Section 3 of the Karnataka Prevention and

Eradication of Inhuman Evil Practices and Black Magic Act, 2017

('the Act' for short). Since these cases are interlinked, they are

taken up together and considered in this order.

2. Criminal Petition No.9653 OF 2023:

The 1st petitioner is the husband of the complainant/2nd

respondent and the 2nd petitioner is the mother-in-law. They are

accused Nos. 1 and 2 in C.C.No.11622 of 2023. Facts in brief
7

concerning this petition are that the 1st petitioner and the

complainant get married on 30-06-2018. After the marriage

registration in accordance with the Special Marriage Act, 1954 also

is put in place. The 1st petitioner/husband registers a complaint

before the jurisdictional Police which becomes a crime in Crime

No.85 of *2020 for offences punishable under Section 381 of the

IPC. The allegation was theft of money and gold jewels but against

whom was not stated. The police conduct investigation and file a 'C'

report. It is the allegation of the husband that statement of the

complainant was recorded and notwithstanding the said recording

'C' report was deliberately filed. Between 30-07-2020 and

14-04-2022 two children are born from the wedlock. A complaint

comes to be registered by the respondent/wife against the

petitioners alleging offences punishable under Sections 498A, 323

r/w 34 of the IPC and Sections 3 and 4 of the 1961 Act on

24-01-2023. The Police after investigation filed a charge sheet not

for all the aforesaid offences, but for the offence punishable under

Sections 498A, 504 r/w 34 of the IPC and Sections 3 and 4 of the

1961 Act. The learned Magistrate taking cognizance of the offence

on 23-05-2023 issues process to the petitioners. It is then the

*Corrected vide Chamber order dated 28.08.2024
8

petitioners have knocked at the doors of this Court in the subject

petition. This Court, in terms of its order dated 06-10-2023, has

stayed further proceedings before the concerned Court and the

same is in subsistence even today.

3. Writ Petition No.19687 of 2023: This writ petition is

preferred by the wife calling in question registration of a crime by

the husband. The incident that led to filing of the crime is that the

wife is alleged to have been thrown out along with her children at

around 4.00 a.m. on 11-06-2022 even without allowing the wife to

take her documents and belongings, which happened due to

frustration of certain alleged illicit relationship of the husband with

another woman. On 10-07-2022 it is the further allegation that the

complainant/husband barged into the house of the wife's father to

take away the second child who was 9 months then and has

threatened that he would kill the wife and abduct the children and

take them outside India. On 13-01-2023 the wife files a petition

seeking custody of the minor children in G & WC No.26 of 2023. On

16-01-2023 the Family Court grants interim custody of minor

children in favour of the wife. After this comes crime in Crime
9

No.22 of 2023 which is the subject matter of the companion

petition. It appears during the investigation, the Police seized gold

ornaments allegedly belonging to the wife from the house of the

husband. The wife files an application under Sections 451 and 457

of the Cr.P.C., for release of gold and silver ornaments. During the

subsistence of the said application, the wife also initiates

proceedings for annulment of marriage in M.C.No.1031 of 2023. It

is then the husband prefers a private complaint on 21-02-2023 and

the matter was referred for investigation and crime No.251 of 2023

comes to be registered thereto. It is registered for offences

punishable under Sections 380, 411, 506, 307, 511 and 34 of the

IPC and Section 3 of the Karnataka Prevention and Eradication of

Inhuman Evil Practices and Black Magic Act, 2017. The allegation

in the FIR is theft and practice of provisions of the Act. The wife,

after registration of the crime, has knocked at the doors of this

Court in the subject petition.

4. Writ Petition No.23864 of 2023: This petition arises

from the very crime i.e., Crime No.251 of 2023. Accused No.2 in

the crime is the petitioner, friend of the wife. The complainant is
10

again the same viz., the husband. Therefore, bifurcation of the

petitions goes this way. Criminal Petition No.9653 of 2023 is

preferred by the husband and the mother-in-law calling in question

proceedings in C.C.No.11622 of 2023 which arose out of crime in

Crime No.22 of 2023. The other petitions are at the stage of

investigation. They arise out of Crime in Crime No.251 of 2023.

5. Heard Sri Siddharth B. Muchandi, learned counsel

appearing for the petitioners in Crl.P.No.9653 of 2023 and for

respondent No.2 in W.P.No. 19687 of 2023 and W.P.No.23864 of

2023, Sri P. Thejesh, learned High Court Government Pleader

appearing for respondent No. 1 in all the petitions, Sri C.V. Nagesh,

learned senior counsel appearing for respondent No.2 in

Crl.P.No.9653 of 2023 and for the petitioner in W.P.No.19687 of

2023 and W.P.No.23864 of 2023.

6. The learned counsel for the petitioners in Criminal Petition

No.9653 of 2023 would contend that none of the offences alleged

which are the ones punishable under Section 498A or Section 34 of

the IPC are met in the case at hand. A perusal of the summary of
11

the charge sheet, according to him, would not make out any

offence against these petitioners. Therefore, the proceedings are an

abuse of the process of law. He would seek quashment of the same

and places reliance upon plethora of judgments rendered by the

Apex Court on the issue.

7. The learned senior counsel Sri C.V. Nagesh who appears

for the petitioners in both the writ petitions and for respondent No.2

in the criminal petition would vehemently contend that the husband

has gone on, registering crimes which are most untenable, as the

crimes so registered are for the offences as afore-quoted. The theft

that the husband alleges has happened three years ago. The Black

Magic Act has been deliberately brought in without any iota of

ingredients and for offence punishable under Section 307 of the IPC

there is not even preparation or attempt to murder. He would

contend the private complaint is deliberately registered as a

counter-blast to what the wife has registered i.e., crime in Crime

No.22 of 2023. Matters of 3 or 4 years vintage are sought to be

agitated by the husband. He would seek quashment of proceedings

in Crime No.251 of 2023.
12

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record.

9. The afore-narrated facts though not in dispute would

require a little elaboration. The factum of marriage is not in dispute.

A crime is registered by the husband in Crime No.85 of *2020

alleging theft of money and gold jewels. It is the averment in the

petition that the husband comes across various exchanges of chats

between one Shabaz Masoom, accused No.2 in Crime No.251 of

2023 and his wife. By then, the wife filed a complaint before the

jurisdictional Police on 24-01-2023 which comes to be registered as

crime in Crime No.22 of 2023 for the afore-quoted offences. The

Police, after investigation, file a charge sheet on 01-05-2023

against the husband and the mother-in-law. The husband and the

mother-in-law have called that in question in the criminal petition.

The complaint is necessary to be noticed. It reads as follows:

"Date:24-01-2023
From:
Smt. Afreen,

*Corrected vide Chamber order dated 28.08.2024
13

W/o Mohamed Shahid,
Aged about 26 years,
R/a Flat No.102, 1st Floor,
197, Falcon Renaissance,
R.V.Road Cross,
Opp: Dass Compound,
Basavanagudi,
Bengaluru - 560 004.

To
The Basavanagudi Women's PS,
No.3806, Thaygarajanagar,
Banashankari, Bangalore
Karnataka - 560 070.
Sir,
Sub: Complaint against (1) Sri Mohamed Shahid
S/o Mohamed Yousuff Sait (2) Hoornaz Banu
W/o Mohamed Yousuff Sait.

1. I write to inform you that on 30-06-2018 I was married
to the above mentioned Sri Mohamed Shahid. Since the
date of my marriage, I have been under constant
harassment of Dowry and Cruelty at the hands of my
husband. After our marriage, myself and my husband
were residing at matrimonial house i.e. No.430, first floor,
11th Main, Viveknagar, Bangalore-560 047.

2. At the time of my marriage, my husband and his family
has demanded that they want to have big fat Muslim
wedding. Even though at the time of wedding we were
going through financial crisis, my father tried all his best
efforts to fulfill their wishes. On their demand our nikah
(marriage) took place at, Princes Green, Gate No.9,
Bangalore Palace Road, Palace Grounds, Bengaluru 560
006 and reception on the very next day at the same
place. The said marriage was registered under Special
Marriage Act, 1954 on 25-03-2019 at Sub-Registrar,
Shivajinagar, Bangalore. All the expenses of my wedding
was solely borne by my father. Further, my husband
family demanded for expensive furniture's and my father
spent around Rs.3,00,000/- (Rupees three lakhs only) to
fulfill their lavish demands. My husband even asked my
14

parents to make an accommodation to all the guest from
groom side in a lavish hotel. My father thereby spent
around Rs.1,50,000/- (Rupees one lakh fifty thousand
only) and booked rooms at Confident Pentagon at
Bangalore to lodge my In laws' guests. My mother-in-law
(Accused No.2) demanded that my father should give at
least 1 kg of gold at the time of wedding as dowry, in
case if he failed to do so, they will call off my wedding.
Thereafter, my father having no other option succumbed
to the said demand and somehow managed to give 500
grams of gold to my husband.

3. Even after commencing the marriage my husband and his
family were no satisfied with the dowry sought. Day by
day, their demanded started to increase. My husband
wanted to invest in a business for which he wanted a
huge amount and for the same he started to demand with
my father. Apart from dowry demands, my husband used
to constantly abuse me physically and also use foul
language to me and my family for not getting enough
dowry. My husband was supported by his relatives
including his mother (Hoornaz Banu). My mother in-law
used to independently assault me and also instigate my
husband to physically assault me and also abuse me for
getting more dowry. She created a hostile environment at
home and ensured that my husband pushed me out of
the house. I was put under severe physical and mental
cruelty due to the said actions of my husband and his
mother.

4. My husband and his mother were always blaming me for
not paying enough amount and was asking me to call my
father to ask for money. I have reliably learnt that my
husband has several affairs. He used to constantly visit
girls and used to compare our physical relationship with
theirs. In the name of sex, my husband physically
assaulted me and forced me to engage in unnatural acts
for which I never consented. Recently, I came across that
he is having an extra marital affair with one Ms. Madhuri
Verma. After coming to know about the same, I
immediately brought this to the Notice of the parents of
my husband as mentioned above. Instead of advising my
husband, the said parents told me that until I get huge
15

amount from my father for him to invest in the business,
they will encourage my husband in whatever illegal work
he does.

5. I state that my husband and his mother never used to let
me to out of the house and also restrained me from
talking to her parents. The respondents use to keep my
phone in his custody.

6. Due to suspicion, I checked my husband's Whatsapp
chats and I was shocked to see that he had been
constantly texting with Ms. Madhuri Verma along with
other girls. He had also sent sexually provoking messages
to many women including his ex-girl friends from his
college. I have been shattered and depressed due to the
above said actions of my husband. When I asked my
husband regarding his unethical activities, he got
aggressive and started to assault me physically. He
kicked me from his leg on my stomach, chest and other
private parts. I even informed my mother in-law
regarding all said events, but she being a woman without
even thinking the pressure I was undergoing, stated that
it is none of her business. She won't involve with any of
these affairs and started to demand more money from my
father. She even stated that its okay for her son to have
several affairs, as I am not fulfilling his financial needs.
Later on 11-06-2022, both my husband and his mother
throwed me and my first child i.e., Inayath Hawwa away
from the matrimonial house. At this time, I had 8 months
baby, my second child i.e., Abdul Ahad Azad. I without
having any other choice went to my father's house along
with my two children. Hence, to save myself from their
clutches, I left from my matrimonial house along with my
two children and presently residing with my parents at
Jayanagar, Bengaluru.

7. At the time of sending me out of my matrimonial
residence, they took my phone, my gold ornament which
was presented by my father and my relatives and
daughter's gold, cloths, my passport and my daughter
Inayath Hawwa passport and other documents. Without
any of said articles I went to my father's house and
started to stay there. I had no job and hence my second
16

child was only of 6 months old. I had to stay back at
home to look after him. My phone is in my husband's
custody and I am afraid that he will misuse the same.

8. There were several attempts made by elders of my
community to reconcile our marriage but none of their
efforts became successful. We have reached the point
where it makes no value or reason for this relationship. I
have finally made sure of my decision and hence all that
needs of reconcile will not add up anything to this matter.
We have understood that my husband and his mother are
not considering this as a marriage instead it was a merely
a path for them to get money. The only purpose of this
marriage to them was just to cause me a mental and
physical harassment.

In view of the above, I request you to take appropriate actions
against the above mentioned Accused and book them under
Sections 405, 420, 354 (Assault or criminal force to woman with
intent to outrage her modesty), 354(D) (stalking), 378 (theft),
497 (adultery) and 498A read with 34 of Indian Penal Code,
1860 and also under Section 3 and 4 of the Dowry Prohibition
Act, 1961.
Yours sincerely,
Sd/- Smt. Afreen."

The Police conduct investigation and file a charge sheet against

both the husband and the mother-law. The summary of the charge

sheet, as obtaining in column No.17, reads as follows:

"17. Brief facts of the case

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ªÁ¸ÀªÁVzÀÄÝPÉÆArgÀÄªÁUÉÎ, ¢£ÁAPÀ:10.07.2022 gÀAzÀÄ ¨É½UÉÎ ¸ÀªÀÄAiÀÄ ¸ÀÄªÀiÁgÀÄ 10-00 UÀAmÉ
¸ÀªÀÄAiÀÄzÀ°è J-1 DgÉÆÃ¦AiÀÄÄ ¸ÁQë-2 ªÀÄvÀÄÛ ¸ÁQë-3 gÀªÀgÀ ªÀÄ£ÉUÉ §AzÀÄ ¸ÁQë-1 & ¸ÁQë-3
gÀªÀgÀÄUÀ¼ÀÄ ªÀÄ£ÉAiÀÄ°è EgÀÄªÁUÉÎ, ¸ÁQë-5 & ¸ÁQë-6 gÀªÀgÀ ¸ÀªÀÄÄäRzÀ°è ¸ÁQë-1 gÀªÀgÉÆA¢UÉ
dUÀ¼À ªÀiÁr, CªÁZÀå ±À§ÝUÀ½AzÀ ¤A¢¹ QgÀÄPÀÄ¼À ¤ÃrgÀÄªÀÅzÀÄ vÀ¤SÉAiÀÄ°è£À ¸ÁQë ºÁUÀÆ
¸ÁPÁëzsÁgÀUÀ½AzÀ ¸Á©vÁVgÀÄvÀÛzÉ.

DzÀÝjAzÀ zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ PÀæªÀÄ ¸ÀASÉå:12 gÀ°è£À J-1 ªÀÄvÀÄÛ J-2
DgÉÆÃ¦vÀgÀ «gÀÄzÀÝ PÀ®A 498(J), 504 ¸À»vÀ 34 L¦¹ ºÁUÀÆ PÀ®A 3 & 4 r.¦ DPïÖ
jÃvÀå zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ£ÀÄß WÀ£À £ÁåAiÀiÁ®AiÀÄPÉÌ ¤ªÉÃ¢¹PÉÆArzÉ."

A perusal at the complaint or the summary of the charge sheet

would not indicate any offence against the mother-in-law, but

would clearly indicate various offences or ingredient of offences

against the husband. Hence, permitting further proceedings against

the mother-in-law, finding no allegation against her, would run foul
18

of the judgment of the Apex Court in the case of KAHKASHAN

KAUSAR v. STATE OF BIHAR1, wherein it is held as follows:

".... .... ....

Issue Involved
"10. Having perused the relevant facts and
contentions made by the Appellants and Respondents, in
our considered opinion, the foremost issue which
requires determination in the instant case is whether
allegations made against the in-laws Appellants are in
the nature of general omnibus allegations and therefore
liable to be quashed?

11. Before we delve into greater detail on the
nature and content of allegations made, it becomes
pertinent to mention that incorporation of section 498A
of IPC was aimed at preventing cruelty committed upon a
woman by her husband and her in-laws, by facilitating
rapid state intervention. However, it is equally true, that
in recent times, matrimonial litigation in the country has
also increased significantly and there is a greater
disaffection and friction surrounding the institution of
marriage, now, more than ever. This has resulted in an
increased tendency to employ provisions such as 498A
IPC as instruments to settle personal scores against the
husband and his relatives.

12. This Court in its judgment in Rajesh Sharma v. State
of U.P.4, has observed:--
"14. Section 498-A was inserted in the statute with
the laudable object of punishing cruelty at the hands of
husband or his relatives against a wife particularly when
such cruelty had potential to result in suicide or murder of a
woman as mentioned in the statement of Objects and
Reasons of the Act 46 of 1983. The expression 'cruelty' in
Section 498A covers conduct which may drive the woman to

1
2022 SCC OnLine SC 162
19

commit suicide or cause grave injury (mental or physical) or
danger to life or harassment with a view to coerce her to
meet unlawful demand. It is a matter of serious concern
that large number of cases continue to be filed under
already referred to some of the statistics from the Crime
Records Bureau. This Court had earlier noticed the fact that
most of such complaints are filed in the heat of the moment
over trivial issues. Many of such complaints are not bona
fide. At the time of filing of the complaint, implications and
consequences are not visualized. At times such complaints
lead to uncalled for harassment not only to the accused but
also to the complainant. Uncalled for arrest may ruin the
chances of settlement."

13. Previously, in the landmark judgment of this court
in Arnesh Kumar v. State of Bihar5, it was also observed:--
"4. There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is
greatly revered in this country. Section 498-A IPC was
introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and
his relatives. The fact that Section 498-A IPC is a cognizable
and non-bailable offence has lent it a dubious place of pride
amongst the provisions that are used as weapons rather
than shield by disgruntled wives. The simplest way to
harass is to get the husband and his relatives arrested
under this provision. In a quite number of cases, bed-ridden
grandfathers and grand-mothers of the husbands, their
sisters living abroad for decades are arrested."

14. Further in Preeti Gupta v. State of Jharkhand6, it has
also been observed:--
"32. It is a matter of common experience that most
of these complaints under section 498A IPC are filed in the
heat of the moment over trivial issues without proper
deliberations. We come across a large number of such
complaints which are not even bona fide and are filed with
oblique motive. At the same time, rapid increase in the
number of genuine cases of dowry harassment are also a
matter of serious concern.
33. The learned members of the Bar have enormous
social responsibility and obligation to ensure that the social
fiber of family life is not ruined or demolished. They must
ensure that exaggerated versions of small incidents should
20

not be reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their
concurrence. The learned members of the Bar who belong
to a noble profession must maintain its noble traditions and
should treat every complaint under section 498A as a basic
human problem and must make serious endeavour to help
the parties in arriving at an amicable resolution of that
human problem. They must discharge their duties to the
best of their abilities to ensure that social fiber, peace and
tranquility of the society remains intact. The members of
the Bar should also ensure that one complaint should not
lead to multiple cases.
34. Unfortunately, at the time of filing of the
complaint the implications and consequences are not
properly visualized by the complainant that such complaint
can lead to insurmountable harassment, agony and pain to
the complainant, accused and his close relations.
35. The ultimate object of justice is to find out the
truth and punish the guilty and protect the innocent. To find
out the truth is a herculean task in majority of these
complaints. The tendency of implicating husband and all his
immediate relations is also not uncommon. At times, even
after the conclusion of criminal trial, it is difficult to
ascertain the real truth. The courts have to be extremely
careful and cautious in dealing with these complaints and
must take pragmatic realities into consideration while
dealing with matrimonial cases. The allegations of
harassment of husband's close relations who had been
living in different cities and never visited or rarely visited
the place where the complainant resided would have an
entirely different complexion. The allegations of the
complaint are required to be scrutinized with great care and
circumspection.
36. Experience reveals that long and protracted
criminal trials lead to rancour, acrimony and bitterness in
the relationship amongst the parties. It is also a matter of
common knowledge that in cases filed by the complainant if
the husband or the husband's relations had to remain in jail
even for a few days, it would ruin the chances of amicable
settlement altogether. The process of suffering is extremely
long and painful."

15. In Geeta Mehrotra v. State of UP7, it was observed:--
21

"21. It would be relevant at this stage to take note of
an apt observation of this Court recorded in the matter
of G.V. Rao v. L.H.V. Prasad reported in (2000) 3 SCC
693 wherein also in a matrimonial dispute, this Court had
held that the High Court should have quashed the complaint
arising out of a matrimonial dispute wherein all family
members had been roped into the matrimonial litigation
which was quashed and set aside. Their Lordships observed
therein with which we entirely agree that:
"12...There has been an outburst of matrimonial
dispute in recent times. Marriage is a sacred ceremony, main
purpose of which is to enable the young couple to settle down
in life and live peacefully. But little matrimonial skirmishes
suddenly erupt which often assume serious proportions
resulting in heinous crimes in which elders of the family are
also involved with the result that those who could have
counselled and brought about rapprochement are rendered
helpless on their being arrayed as accused in the criminal case.
There are many reasons which need not be mentioned here for
not encouraging matrimonial litigation so that the parties may
ponder over their defaults and terminate the disputes amicably
by mutual agreement instead of fighting it out in a court of law
where it takes years and years to conclude and in that process
the parties lose their "young" days in chasing their cases in
different courts." The view taken by the judges in this matter
was that the courts would not encourage such disputes."

16. Recently, in K. Subba Rao v. The State of Telangana8,
it was also observed that:--
"6. The Courts should be careful in proceeding
against the distant relatives in crimes pertaining to
matrimonial disputes and dowry deaths. The 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."

17. The abovementioned decisions clearly
demonstrate that this court has at numerous instances
expressed concern over the misuse of section 498-A IPC
and the increased tendency of implicating relatives of the
husband in matrimonial disputes, without analysing the
long term ramifications of a trial on the complainant as
well as the accused. It is further manifest from the said
judgments that false implication by way of general
22

omnibus allegations made in the course of matrimonial
dispute, if left unchecked would result in misuse of the
process of law. Therefore, this court by way of its
judgments has warned the courts from proceeding
against the relatives and in-laws of the husband when no
prima facie case is made out against them.

18. Coming to the facts of this case, upon a perusal of the
contents of the FIR dated 01.04.2019, it is revealed that general
allegations are levelled against the Appellants. The complainant
alleged that 'all accused harassed her mentally and threatened
her of terminating her pregnancy'. Furthermore, no specific and
distinct allegations have been made against either of the
Appellants herein, i.e., none of the Appellants have been
attributed any specific role in furtherance of the general
allegations made against them. This simply leads to a situation
wherein one fails to ascertain the role played by each accused in
furtherance of the offence. The allegations are therefore general
and omnibus and can at best be said to have been made out on
account of small skirmishes. Insofar as husband is concerned,
since he has not appealed against the order of the High court,
we have not examined the veracity of allegations made against
him. However, as far as the Appellants are concerned, the
allegations made against them being general and omnibus, do
not warrant prosecution.

19. Furthermore, regarding similar allegations of
harassment and demand for car as dowry made in a previous
FIR. Respondent No. 1 i.e., the State of Bihar, contends that the
present FIR pertained to offences committed in the year 2019,
after assurance was given by the husband Md. Ikram before the
Ld. Principal Judge Purnea, to not harass the Respondent wife
herein for dowry, and treat her properly. However, despite the
assurances, all accused continued their demands and
harassment. It is thereby contended that the acts constitute a
fresh cause of action and therefore the FIR in question herein
dated 01.04.19, is distinct and independent, and cannot be
termed as a repetition of an earlier FIR dated 11.12.2017.
23

20. Here it must be borne in mind that although the
two FIRs may constitute two independent instances,
based on separate transactions, the present complaint
fails to establish specific allegations against the in-laws
of the Respondent wife. Allowing prosecution in the
absence of clear allegations against the in-laws
Appellants would simply result in an abuse of the process
of law.

21. Therefore, upon consideration of the relevant
circumstances and in the absence of any specific role
attributed to the accused appellants, it would be unjust if
the Appellants are forced to go through the tribulations of
a trial, i.e., general and omnibus allegations cannot
manifest in a situation where the relatives of the
complainant's husband are forced to undergo trial. It has
been highlighted by this court in varied instances, that a
criminal trial leading to an eventual acquittal also inflicts
severe scars upon the accused, and such an exercise
must therefore be discouraged."

In the light of the facts obtaining in the case at hand and the

judgment of the Apex Court supra, permitting further proceedings

against the mother-in law would become an abuse of the process of

law, but the same does not go with the husband. The husband will

have to come out clean in a full blown trial in view of serious

allegations made against him.
24

W.P.No.19687 OF 2023 - Crime No.251 of 2023:

10. Facts succinctly stated are as follows:

After registration of the crime by the wife which becomes a

crime in Crime No.22 of 2023, the husband registers a private

complaint. The private complaint is registered on 21-02-2023 which

is after registration of crime in Crime No.22 of 2023 which was on

24-01-2023. The allegation is against the wife and the alleged

friend of the wife. The aforesaid complaint is referred for

investigation under Section 156(3) of the Cr.P.C., It then becomes

a crime in Crime No.251 of 2023. The offences alleged are attempt

to murder, cheating, theft, preparation to commit an offence which

is punishable beyond three years and Section 3 of the Black Magic

Act. The registration of the crime in Crime No.251 of 2023 has led

the wife and her friend before this Court in two separate writ

petitions.

11. The learned senior counsel Sri C. V. Nagesh representing

the petitioners in both these cases would vehemently contend that

the very registration of the complaint by the husband is an abuse of

the process of law. It is his contention that theft that allegedly took
25

place in 2020, is sought to be complained, after 3 years, in the year

2023. For the attempt to murder, there is not even a titter of

ingredient. The provisions of the Act are without rhyme or reason --

alleged. He would seek quashment of entire proceedings, for it to

be saved from law being abused.

12. Per contra, the learned counsel appearing for the

complainant/husband would contend that he saw so many

whatsapp chats between the wife and accused No.2, her friend in a

conspiracy to kill the mother-in-law and the husband by practice of

black magic. It is, therefore, the provisions of the Black Magic Act

are complained of. He would admit the fact that the theft has taken

place in the year 2020. Since the wife and her friend have

discussed about finishing of the husband and the mother-in-law,

the offence under Section 307 of the IPC is appropriately laid. He

would seek dismissal of the petitions.

13. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record qua the subject petitions.
26

14. To consider the submissions of the respective learned

counsel it is necessary to notice the genesis of the problem. The

genesis lies in the private complaint registered by the husband

invoking Section 200 of the Cr.P.C., Certain paragraphs of the

complaint in P.C.R.No.51647 of 2023 are germane to be noticed

and they are extracted hereunder for the purpose of quick

reference:

".... .... ....

5. The complainant was shocked in January 2020
when several gold and diamond jewelry viz., four
bangles, 1 diamond set, 3 gold pendants and three thick
bangles, belonging to complainant parents which were
kept in the almirah in his house, went missing. At that
point of time, complainant enquired with his parents
regarding the whereabouts of the jewelries. However,
none of them had any idea as to where it was and who
had taken them. Complainant and his parents felt that
their maid Mrs. Karpakka had stolen these articles, but
when police investigated and interrogated maid it was
found that it was not her and later, the complainant
realized that it was accused Nos. 1 and 2 who had
conspired together and hatched a plan to steal valuable
articles and cash for their ulterior motives, which is
detailed herein below. Photos of jewelry and a few
invoices are herewith produced as Document No.7 and 8.
CD (1) containing the photos of jewelry is herewith
produced as Document No.9.

6. In the month of July 2021, the complainant was
shocked to find out that his diamond studded ring, pendant and
earring along with two gold bangles worth several lakh of rupees
went missing from his almirah. At that point of time, since
lockdown restrictions were imposed in lieu of the Covid-19
27

pandemic and since there were no visitors to complainant
house, the complainant started suspecting that one of their
family members was behind it.

7. The complainant state that he had a suspicion on
accused No.1 and when complainant checked accused No.1's
phone in the month of June 2022, complainant was shocked to
find out that accused No.1 was having a love affair with the
accused No.2 who is a resident of No.50, Ranoji Rao Road,
Basavanagudi, Bangalore 560 004. The accused No.2 would
constantly contact and chat with him through the messaging
application called IMO.

8. The series of conversations which ran to about 4200
messages, for the period between April to June 2022, wherein
accused No.1 had conspired with accused No.2 and had
committed multiple acts of theft of money, jewelry, etc. from
complainant house totally valuing and amounting to Rs.19 lakh
(Rs.1 lakh of cash and Rs.18 lakhs worth of gold).

9. The complainant state that chats/conversations
also revealed that accused used to frequently abuse
complainant's mother Mrs. Hoornaz Banu and had stated
and expressed that complainant's mother brings bad luck
to accused No.1. The accused No.2 was involved in the
practice of black magic and other evil practices. The
Accused No.1 and 2 had also planned to murder
complainant mother and that accused No.2 was guiding
accused No.1 and instructing her with the use of black
magic techniques and evil practices. It was only then
complainant realized that accused no.1 was the one who
had stolen the jewelries, money etc. for fulfilling such evil
practices. There were also conversations regarding the
expenses which would be involved and how accused No.1
would arrange the same. The accused No.1 had stolen
money from complainant and handed it over to accused
No.2 as 'supari amount' to meet the expenses involved in
the use of black magic and other evil practices which
accused No.1 had planned and attempted to murder
complainant mother and such offences have been
committed by the accused on various dates between 14-
04-2022 to 4-6-2022.
28

10. Since complainant had purchased the phone for
accused No.1, the complainant kept that phone with him and
complainant also got this phone examined by a scientific
forensic expert, who has confirmed the contents on the phone.
Print out of the relevant extracts IMO chats is produced as
Document No.10, DVD (2) containing the IMO chats recording
is produced as Document No.11, and Copy of the Forensic
Expert report dated 06-09-2022 is produced as Document
No.12.
11. The complainant confronted the accused No.1 and
initially she gave evasive answers and excuses and started
making false and baseless allegations against complainant and
his mother and also threatened that accused No.1 filed a false
complaint against complainant and his mother, which she has
also done recently. On 11-06-2022, accused No.1 voluntarily
took children and left the marital home. During the telephone
conversation with the complainant the accused has admitted
about commission of the offence by her too which is recorded as
audio recordings by the complainant. Also while chatting on
Whatsapp with the complainant, the accused used her mother's
mobile phone and also admitted her wrong doings. Print out of
the transcripts of the voice recordings reflecting the admissions
by the accused No.1 is produced as Document No.13, CD (3)
containing the audio recordings is produced as Document
No.14 and the printouts of the whatsApp chats is produced as
Document No.15.

12. The complainant was hoping that accused No.1
will change her ways but her conduct depicts that she
wants to get rid of complainant and his family and elope
with accused No.2.Since the accused No.1 was caught
red-handed by the complainant, to set up a false claim, to
exert pressure upon the complainant by filing false cases,
and to ensure that the complainant cannot meet the
children, whom he is very attached to, the accused No.1
has instituted false and baseless complaint and got a
false FIR registered against him and his mother and had
also filed a false petition before the Hon'ble Family Court,
Bengaluru.

13. The accused No.1 has conspired and connived
with the accused No.2 and in pursuance of the said
conspiracy, the accused No.1 has stolen valuable articles
29

from the house of the complainant i.e., gold and silver
jewelry and cash all worth about Rs.19 lakhs and the
accused Nos. 1 and 2 have chatted in the form of
thousand of messages on the messaging app IMO to
conspire to murder the mother of the complainant with
the use of black magic techniques and evil practices and
the accused No.1 handed over the money and jewelry to
accused No.2 as 'supari amount' to meet the expenses
involved in the use of black magic and other evil practices
and thereby attempted to murder the mother of the
complainant and thereby the accused No.1 and 2 have
committed the offences punishable under Sections 380,
411, 506, 307 r/w. 511 IPC, Section 34 IPC and Section 3
of the Karnataka Prevention and Eradication of Inhumane
Evil Practices and Black Magic Act, 2017.

14. The aforesaid offences have been committed by the
accused Nos. 1 and 2 i.e., conspiracy, theft and preparation and
attempt to murder and mother of the complainant on various
dates between 14-04-2022 to 4-06-2022.

15. The complainant filed a written complaint dated
13.02.2023 against the accused No.1 and 2 to the Police
Inspector, Ashok Nagar Police Station, Bengaluru and also
complaint dated 15-02-2023 to the Commissioner of Police,
Bangalore. However, no action has been taken. Though they
called for discussion, the police are not willing to register the
FIR in spite of there being clear and clinching evidence against
the accused as detailed supra. Copy of the complaint dated 13-
02-2023 to the Police Inspector along with postal receipt and
complaint dated 15-02-2023 to the Commissioner of Police are
produced herewith as Document Nos.16 and 17. Copy of the
Aadhar card of the complainant is produced herewith as
Document No.18.

16. The complainant submits that the accused No.1 and
her family are highly influential persons and have connections
with the Police department and politicians. Even if FIR is
registered, there would be no honest and proper investigation in
the crime and the interest of the complainant will be sabotaged
and justice will suffer. Hence, the complainant presents this
private complaint under Section 200 Cr.P.C. with a prayer to
30

take cognizance and proceed in accordance with Section 200,
190 and 204 Cr.P.C.

17. The complainant has not filed any other complaint
either before the Hon'ble Court or any other Court on the same
cause of action against the accused which has been registered
or being investigated.

Wherefore, the complainant in the above case prays that
this Hon'ble Court be pleased to pass an order, taking
cognizance of the offences punishable under Sections 380,
411, 506, 307 r/w. 511 IPC, Section 34 IPC and Section 3
of the Karnataka Prevention and Eradication of Inhumane
Evil Practices and Black Magic Act, 2017 secure the
presence of the accused and punish them in accordance with
law, to meet the ends of justice."
(Emphasis added)

At paragraph-7 it is the submission of the husband that he checked

the mobile phone of the wife and comes to know a few facts. Series

of conversations, according to the complaint, took place about theft

and also using black magic techniques and evil practices to murder

both the husband and the mother-in-law. It is the allegation that

the wife had stolen money from the husband and handed it over to

her friend as a 'supari' amount. It is his submission that those

whatsapp chats have admittedly led to the registration of crime.

Since they are very serious in nature, they should be investigated

into. I decline to accept the said submission of the learned counsel

appearing for the husband.
31

15. At the outset, I have no hesitation to hold that the

husband has registered the crime, as a counter-blast to what the

wife has registered in Crime No.22 of 2023, as the narration in the

complaint of the husband supra is trying to connect the dots with

regard to the theft of jewels and practice of black magic. The

complaint itself narrates that the theft has happened in the year

2020 and also in the month of July 2021. The complaint is filed, as

observed hereinabove, on 21-02-2023. The husband narrates he

was shocked at the theft, that happened 3 years ago. It looks like

the impact of shock has happened 3 years later. Whether whatsapp

chats that the husband seeks to place reliance upon can be taken

note of, to permit investigation into the crime for the aforesaid

offences, is what is to be noticed. There are a few whatsapp chats

that are appended to the statement of objections filed by the

husband. There are four particular chats to support the allegation,

according to the learned counsel appearing for the husband. They

read as follows:

"I have told mom n dad indirectly many times ya he scholds me
yeh sab we should not thnk nor do aaisa he tells ya
06.10 p.m.
Hmmm 06.10 p.m.
32

I want to finish kaam ya but if I tel dad he won't agree oly ha"
06.10 p.m.

"Once saas goes I ll keep all the money ya 01.07 p.m.
Bas Kaam chacha agree n finish of 01.08 p.m."

"Yes ya once she goes everything will be in ur control
12.55 p.m.

He don't care ya!! Now it's ok Once kids start going school I ll
need money ya n if sas is dr she won't allow oly husband to give
12.56 p.m.

She should go soon ya aab 12.56 p.m.

Now she will ya 12.56 p.m.
Her time has come 12.56 p.m."

"Done ya 07.21 a.m.
U took kya 07.22 a.m.
N 2400 dollars 07.22 a.m.
Yes ya 07.22 a.m.
Just dollars kya 07.22 a.m.
N chiller hai ya Dubai ke n dollars also chiller 07.23 a.m.
Thk yai ya 07.23 a.m.
N India money 2k 07.23"

Section 307 of the IPC reads as follows:

"307. Attempt to murder.--Whoever does any act with
such intention or knowledge, and under such circumstances
that, if he by that act caused death, he would be guilty of
murder, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall
also be liable to fine; and if hurt is caused to any person by such
act, the offender shall be liable either to imprisonment for life,
or to such punishment as is hereinbefore mentioned.
33

Attempts by life convicts.--When any person offending
under this section is under sentence of imprisonment for life],
he may, if hurt is caused, be punished with death."

Section 307 deals with attempt to murder. It directs that whoever

does any act with such intention or knowledge and under such

circumstances, if he by that act caused death, he would be guilty of

murder. The crux of the matter is intention or knowledge to

perform an act and if performed would eventually becomes a

murder. Therefore, it is attempt to murder. The issue is that the

husband and the mother-in-law were sought to be finished by

practice of black magic. Therefore, Section 3 of the Black Magic Act

is invoked. Section 3 of the Act reads as follows:

"3. Prevention and eradication of inhuman evil
practices and black magic.--(1) No person shall himself
or through any other person commit, promote, propagate
or practice or cause to promote, propagate or practice
inhuman, evil practices and black magic specified in the
schedule.

(2) From the date of commencement of this Act,
Commission of any act of inhuman, evil practices and
black magic and any advertisement, practice, propagation
or promotion of inhuman, evil practices and black magic
in violation of provision of this Act by any person by
himself or through any other person shall constitute an
offence under the provisions of this Act and the person
guilty of such offence shall on conviction be punished with
imprisonment for a term which shall not be less than one year
but which may extend to seven years and with fine which shall
34

not be less than Five thousand rupees but which may extend to
fifty thousand rupees:

Provided that, as a consequence of offence under this Act
if death of the victim occurs, the offender, shall be deemed to
have committed an offence of murder as defined in
Section 300 of Indian penal code, 1860 (Act 45 of 1860) and
shall be punishable under Section 302 of the said code or if such
act has endangered life of the victim or has resulting in injury to
any person, the offender shall be deemed to be guilty of having
committed an offence of attempt to murder as defined under
Section 307 of the Indian penal code, 1860 (Act 45 of 1860) and
shall be punishable accordingly or if consequence of such
offence, the victim commits suicide, then the offender shall be
deemed to have abetted commission of suicide, as defined and
punishable under Section 306 of Indian penal code, 1860 (Act
45 of 1860) and shall be punishable accordingly.

(3) Whoever abets the commission or attempt the
commission of any act or offence punishable under Sub-
section (2), shall be deemed to have committed that
offence and shall on conviction be punished with the
same punishment for such offences in Sub-section (2).

(4) Consent of the victim shall not be a defense under
this section.

(5) The offence punishable under Sub-section (2), shall
be cognizable and non-bailable."
(Emphasis supplied)

Section 3 makes it an offence on practice of black magic as found in

the schedule. The schedule reads as follows:

"(1) Performing any inhuman, evil act and black magic
in search of precious things, bounty and hidden
treasure for similar reasons in the name of such as
banamathi, Mata-Mantra, assaulting any person,
parading naked or put a ban on his daily activities
35

or instigate advice or encourage committing of such
inhuman acts.

(2) To create an impression by declaring that a power
inapprehensible by senses has influenced one's
body or that a person has possessed such power
thereby create fear in the minds of others or to
threaten others of evil consequences for not
following the advice of such person or deceive
defraud and deter him.

(3) Under the pretext of expelling the ghost, assaulting
by tying the person with rope or chain, beating by
stick or whip to make the person drink foot wear
soaked water, giving chilli smoke hanging a person
to roof fixing with rope or by a hair or pluck his
hair, causing pain by way of touching heated object
to organs or body of a person, forcing a person to
perform sexual act in the open, practice inhuman
acts, putting urine or human excreta forcibly in the
mouth of a person or practice any such acts.

(4) By making the persons believe that a particular person
practices banamathi, Mata-Mantra black magic or brings
under the influence of ghost or diminishes the milking
capacity of a cattle by mantra-tantra or similarly accusing
a particular person that, he brings misfortune to others or
is a cause for spread of diseases and thereby making the
living of such person miserable, troublesome or difficult,
to declare a person as saithan or incarnation of saithan.

(5) To create a panic in the minds of public in general by way
of invoking ghost or mantras or threaten to invoke ghost
creating an impressing that there is ghostly or warth of
power inapprehensible by senses causing physical injuries
and preventing a person taking medical treatment,
instead diverting him to practice inhuman evil and aghory
acts or treatment threatening a person with a death or
causing physical pains or causing financial loss by
practicing or tend to practice black magic or inhuman act.

(6) Claiming to perform surgery by fingers or claiming to
change the sex of a foetus in womb of a woman.
36

(7) To create an impression that special supernatural powers
are present in himself, incarnation of another person or
holy spirit or that the devotee was his wife, husband or
paramour in the past birth thereby indulging into sexual
activity with such person.

(8) Persuading, propagating or facilitating rituals that involve
self-inflicted injuries such as hanging from a hook:
inserted into the body (sidi) or pulling a chariot by a hook
inserted into the body;

(9) Persuading, propagating or facilitating rituals involving
harm inflicted on children in the name of curing them,
such as throwing them on thorns or from heights;

(10) Practicing evil practices against women by forcing
isolation, prohibiting re-entry into the village or
facilitating segregation of menstruating or postpartum
women; and subjecting women to inhuman and
humiliating practices such as parading them naked in the
name of worship or otherwise, such as "betthale seve";

(11) Forcing any person to carry on evil practices such as
killing of an animal by biting its neck (gaavu), that cause
harm to public health nuisance.

(12) Facilitating any person or persons to roll over (urulu seve)
on the leaves of left over food by other persons in any
public or/and religious places, or similar practices that
violate human dignity.

(13) Coersing any person or persons to perform fire-walk at
the time of jatras and Religious festivals, causing physical
injury.

(14) The practice of piercing from rods from one side of, jaw to
another side of the jaw including the tounge i.e.,
"baibiga" practice.

(15) Pelting of stones in the name of Banamathi, Mata-Mantra
and mantra-tantra on the residential houses during night
or day.
37

(16) Prohibiting and preventing a person from taking medical
treatment in case of dog, snake or scorpion bite and
instead of giving him treatment like mantra-tantra,
ganda-dora or such other things."

(Emphasis supplied)

The learned counsel appearing for the husband places heavy

reliance upon clauses (1), (2) and (3) supra. The very schedule

commences with the words 'Performing any inhuman, evil act

and black magic'. Therefore, there should be completion of an

act, as it reads "performing". Clause (3) is beating and whipping

to expel the ghost from any human body. The rest of the clause

is self-explanatory. If the schedule is pitted against the facts

obtaining in the case at hand, where from all these ingredients of

the schedule spring for a complaint to be registered under the Act is

ununderstandable. There is no act performed, neither an attempt

to perform any of the ingredients of the Black Magic Act. The

Whatsapp chats are completely vague. Therefore, the husband has

undoubtedly indulged in a proceeding, as a counterblast to the

registration of the crime by the wife. The other offences alleged are
38

the ones punishable under Sections 380 and 511 of the IPC.

Sections 380 and 511 of the IPC read as follows:

"380. Theft in dwelling house, etc.-Whoever commits
theft in any building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or used for the custody of
property, shall be punished with imprisonment of either
description for a term which may extend to seven years, and
shall also be liable to fine."

.... .... ....

"511. Punishment for attempting to commit offences
punishable with imprisonment for life or other
imprisonment.- Whoever attempts to commit an offence
punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be committed, and
in such attempt does any act towards the commission of the
offence, shall, where no express provision is made by this Code
for the punishment of such attempt, be punished with
imprisonment of any description provided for the offence, for a
term which may extend to one-half of the imprisonment for life
or, as the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such fine as is
provided for the offence, or with both."

The complaint narrates that the husband was shocked to know of

the alleged theft that had occurred 3 years ago by the wife. An act,

3 years ago, is said to have had an impact upon the husband on the

date of registration of the crime. None of the ingredients as

necessary under Section 511 of the IPC is also present in the case

at hand. It is trite law that the learned Magistrate prior to referring
39

the matter for investigation on a complaint filed invoking Section

200 of the Cr.P.C. cannot so do mechanically. The order referring

the matter for investigation should bear application of mind in order

to nip, frivolous cases being filed, at its bud. A perusal at the order

of reference would not indicate even a semblance of application of

mind. A plain and simple marital discord is dressed with black

magic, theft and attempt to murder. In the teeth of the aforesaid

findings, if the proceedings against the petitioners in *Crime No.251

of 2023 are permitted to continue, it would become an abuse of the

process of the law and result in patent injustice.

16. For the aforesaid reasons, the following:

ORDER

(i) Criminal Petition No.9653 of 2023 is allowed in part and the proceedings in C.C.No.11622 of 2023 pending before the 37th Additional Chief Metropolitan Magistrate stand quashed qua accused No.2, mother-in- law only. The Criminal Petition insofar as the husband/accused No.1 is concerned, it is dismissed.

*Corrected vide Chamber order dated 28.08.2024 40

(ii) Writ Petition Nos.19687 of 2023 and 23864 of 2023 are allowed and the registration of crime in Crime No.251 of 2023 stands quashed.

Consequently, pending applications if any, also stand disposed.

Sd/-

(M. NAGAPRASANNA) JUDGE bkp CT:SS

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