Karnataka High Court
Gundayya And Ors vs The State And Anr on 17 November, 2023
Author: K Natarajan
Bench: K Natarajan
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NC: 2023:KHC-K:8669
CRL.P No. 200835 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO. 200835 OF 2023
BETWEEN:
1. GUNDAYYA
S/O. SANGAYYA HIREMATH
AGE:30 YEARS, OCC:AGRICULTURE
R/O. GHATTARGI, TALUK AFZALPUR
DISTRICT KALABURAGI-585 301.
2. SANGAYYA
S/O. SIDDAYYA HIREMATH
AGE:55 YEARS, OCC:AGRICULTURE
R/O.GHATTARGI, TALUK AFZALPUR
DISTRICT KALABURAGI-585 301.
Digitally 3. SMT. RACHAMMA
signed by W/O. SANGAYYA HIREMATH
KHAJAAMEEN
L MALAGHAN AGE:50 YEARS, OCC:HOUSEHOLD
Location: High R/O. GHATTARGI, TALUK AFZALPUR
Court Of DISTRICT KALABURAGI-585 301.
Karnataka
4. MALLAYYA
S/O. SANGAYYA HIREMATH
AGE:22 YEARS, OCC:AGRICULTURE
R/O. GHATTARGI, TALUK AFZALPUR
DISTRICT KALABURAGI-585 301.
5. SMT. CHANDRAKALA
W/O. MALLAYYA HIREMATH
AGE:22 YEARS, OCC: HOUSEHOLD
R/O. GHATTARGI, TALUK AFZALPUR
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NC: 2023:KHC-K:8669
CRL.P No. 200835 of 2023
DISTRICT KALABURAGI-585 301.
6. SIDDAYYA
S/O. BASAYYA HIREMATH
AGE:50 YEARS, OCC:AGRICULTURE
R/O. NARAYANPUR, TALUK JEWARGI
DISTRICT KALABURAGI-585 310.
7. SMT. NEELAMMA
W/O. SIDDAYYA HIREMATH
AGE:45 YEARS, OCC:HOUSEHOLD
R/O. NARAYANPUR, TALUK JEWARGI
DISTRICT KALABURAGI-585 310.
8. SMT. BHAGU @ DHANAMMA
W/O. GUNDAYYA HIREMATH
AGE:22 YEARS, OCC:HOUSEHOLD
R/O. GHATTARGI, TALUK AFZALPUR
DISTRICT KALABURAGI-585 301.
...PETITIONERS
(BY SRI SANTOSH PATIL, ADVOCATE)
AND:
1. THE STATE
THROUGH KALABURAGI WOMEN P.S.
(REPRESENTED BY ADDL. SPP.
HIGH COURT OF KARNATAKA
KALABURAGI-585 107).
2. SMT. GANGAMMA
W/O. GUNDAYYA HIREMATH
AGE:26 YEARS, OCC:HOUSEHOLD
R/O. GOUNALLI, TALUK JEWARGI
DISTRICT KALABURAGI-585 310.
...RESPONDENTS
(BY SMT. ANITA M. REDDY, HCGP FOR R.1;
SRI SHARANAGOUDA V. PATIL, ADVOCATE FOR R.2.)
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NC: 2023:KHC-K:8669
CRL.P No. 200835 of 2023
THIS PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE PROCEEDINGS PENDING
AGAINST THE PETITIONERS IN CRIME NO.1/2021 OF
KALABURAGI WOMEN POLICE STATION, KALABURAGI AND
C.C.NO.1740/2021 PENDING ON THE FILE OF II ADDL. CIVIL
JUDGE AND JMFC., KALABURAGI FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 498(A), 494, 504 AND 506
READ WITH SECTION 149 OF IPC., IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner/accused Nos.1 to 8 under Section 482 of Cr.P.C. for quashing the charge sheet in C.C.No.1740/2021 arising out of crime No.1/2021 registered by Kalaburagi Women police station, Kalaburagi and charge sheeted for the offence punishable under Sections 498A, 494, 504, 506 read with 149 of IPC.
2. Heard the arguments of learned counsel for the petitioners, learned HCGP for the State/respondent No.1 and learned counsel for respondent No.2.
3. The case of the prosecution is that, on the complaint of respondent No.2 filed on 09.01.2021 the police registered the case for the above said offences. It is alleged by her that -4- NC: 2023:KHC-K:8669 CRL.P No. 200835 of 2023 she married to petitioner No.1 on 31.5.2012 and they have got two female children. The respondent No.2, when she went to her parents house for the second delivery, the petitioner No.1/accused No.1 said to be married the petitioner No.8. Inspite of request made by her, the petitioner Nos.6 and 7 the parents of petitioner No.8 , got petitioner No.8, married to the accused No.1 and when the respondent No.2 asked about the same, they said to be harassed her physically and mentally and abused her and were demanding further dowry for taking her to the house. After receipt of the complaint, the police filed the charge sheet which is under challenge.
4. Learned counsel for the petitioners contended, there is inordinate delay in lodging the complaint, even otherwise the section 494 of IPC for bigamy, the police cannot file final report and the court cannot take cognizance and in the police report there is a bar under Section 198 of Cr.P.C. Therefore, the charge sheet against the accused Nos.6 to 8 shall have to be quashed and even there is no material for framing of charges against other accused for any of the offences. Hence, prayed for quashing the same.
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NC: 2023:KHC-K:8669 CRL.P No. 200835 of 2023
5. Per contra, learned HCGP and learned counsel for respondent No.2 seriously objected the petition and contended that the accused persons harassed the complainant physically and mentally and demanding further dowry. However, they fairly accept that under section 494 of IPC, the police cannot file charge sheet and the defacto-complainant required to file complaint before the Magistrate.
6. Having heard the arguments, perused the records, especially the averments made out by the complainant in her complaint that she has married to accused No.1 and the accused Nos.2 to 5 are her in-laws. She has begotten two female children and when she went for second delivery, the accused persons performed the second marriage of the petitioner No.8 with the petitioner No.1/accused No.1. Even though there was complaint filed to the police on 2.11.2020 and inspite of requesting the accused Nos.6 and 7, they have got the petitioner No.8 married to the petitioner No.1/accused No.1 and have performed the marriage. Though the complainant/defacto complainant filed first information under Section 154 of Cr.P.C., the police by ignoring the provision of 198 of Cr.P.C. they registered FIR under Section 494 of IPC for -6- NC: 2023:KHC-K:8669 CRL.P No. 200835 of 2023 the offence punishable for bigamy and also they have filed the charge sheet.
7. Learned Magistrate also without proper application of the mind took the cognizance against the petitioners, against all the accused persons for the offence punishable under Section 494 of IPC. Also, even though there was bar for taking cognizance under Section 198 of Cr.P.C., as against to the accused Nos.6 to 8, where the respondent No.2/defacto complainant required to file a private complaint under Section 200 of Cr.P.C. for offence punishable under section 494 of IPC. Even otherwise, under section 494 of IPC, the second wife cannot be made as an accused in view of the judgment passed by this court in CRL.P.No.5334/2017 dated 21.3.2022 where this court has held the husband will be liable for punishment, but not the alleged second wife and the criminal proceedings has been quashed by this court. Herein this case, the petitioner No.8 is alleged to be second wife of petitioner No.1 and petitioner Nos.6 and 7 are the parents of petitioner No.8. In view of the bar under Section 198 of Cr.P.C., the Magistrate cannot take cognizance for the offence under Section 494 of IPC, without a complaint. Such being the case, the proceedings -7- NC: 2023:KHC-K:8669 CRL.P No. 200835 of 2023 against the accused Nos.6 to 8 requires to be quashed and even against the accused Nos.1 to 5 in respect of 494 of IPC requires to be quashed.
8. However there is material for framing of the charges under Sections 498A, 504 and 506 of IPC against accused Nos.1 to 5. Accordingly, I proceed to pass the following order;
This criminal petition is allowed in part.
The FIR and charge sheet filed against accused Nos.1 to 8 in respect of 494 of IPC, in
C.C.No.1740/2021 arising out of Crime No.1/2021 registered by Kalaburagi Women police station, Kalaburagi, pending on the file of II Additional Civil Judge and JMF Kalaburagi, is hereby quashed.
In respect of other offences i.e, under Sections 498A, 504 and 506 of IPC, the proceeding against accused Nos. 6 to 8, in C.C.No.1740/2021 arising out of Crime No.1/2021 registered by Kalaburagi Women police station, Kalaburagi pending on the file of II Additional Civil Judge and JMF Kalaburagi, is hereby quashed.
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NC: 2023:KHC-K:8669 CRL.P No. 200835 of 2023 The petitioner Nos.1 to 5 requires to face the trial in remaining offences i.e., 498A, 504 and 506 of IPC and the respondent No.2 liberty to file complaint under Section 494 of ICP against accused the No.1.
Sd/-
JUDGE AKV-List No.: 1 Sl No.: 32