Karnataka High Court
Smt. Vijayalaxmi W/O. Kirankumar ... vs Kirankumar S/O. Hanamanthappa ... on 29 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRL.P.No.102130/2017
BETWEEN
SMT. VIJAYALAXMI W/O. KIRANKUMAR DODDAMANI
D/O. SHRI KRISHNAYYA MAHADEVAYYA SHETTY
AGE:40 YEARS, OCC:NIL
NOW RESIDING AT H.NO. 36,
AKSHAYA COLONY Ist PHASE,
NEAR CANARA BANK VIDYANAGAR,
HUBBALLI, TQ:HUBBALLI,
DIST:DHARWAD.
..... PETITIONER
(BY SRI BAHUBALI A DANAWADE, ADV.)
AND
KIRANKUMAR S/O. HANAMANTHAPPA DODDAMANI,
AGE:44 YEARS, OCC:BUSINESS,
R/O. PLOT NO.2, SHAKTI NAGAR, GOKUL ROAD,
HUBBALLI, TQ:HUBBALLI,
DIST:DHARWAD.
..... RESPONDENT
(BY SRI J S SHETTY, ADV.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH COMPLAINT (PRIVATE
COMPLAINT NO. 198 OF 2015) AND COGNIZANCE TAKEN
DATED 03.07.2015 AND FURTHER ENTIRE PROCEEDINGS IN
C.C.NO. 3426 OF 2015 FOR THE OFFENCES PUNISHABLE U/S
497 R/W SEC. 34 OF IPC PENDING ON THE FILE OF THE COURT
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OF JMFC (I-COURT), HUBBALLI, IN SO FAR AS PETITIONER
HEREIN/ ACCUSED NO.1 & ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is seeking to quash the Complaint (Private Complaint No.198/2015) dated 02.03.2015 and taken cognizance dated 03.07.2015 and also further entire proceedings in C.C.No.3426 of 2015 for the offences punishable under Section 497 r/w 34 of IPC pending on the file of the Court JMFC (I Court) Hubballi insofar as petitioner/accused No.1.
2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court.
3. The accused No.1 is the legally wedded wife of complainant. The complainant is residing with his parents and other family members. The father of complainant is a retired Air Force Officer. The marriage of the complainant and accused No.1 was solemnized on :3: 17.02.2002 at Balaji Mandir, Gadag Road, Hubballi. After the marriage the accused No.1 came to the matrimonial home. For about ten years i.e. upto 30.10.2014, she stayed in the house of the complainant. But after that she started quarreling with the complainant and also with the members of the complainant without any reason. The accused No.1 left the matrimonial home with her own interest and without the knowledge of complainant and carrying all the valuable things in a goods vehicle against the will and wish of the elder family members on 30.10.2014. No issues were born out of their wedlock and accused No.1 is a beautician and she is running a beauty parlor at Hubballi since 2009. For establishing the said Beauty Parlor the complainant has assisted the accused No.1.
It is further submitted that the complainant was looking after accused No.1 with love and affection. The complainant had provided the accused No.1, a Micromax Mobile Phone handset with Sim Card :4: No.9740870259 for her use. The said mobile phone is having an application of automatic call recording. The complainant casually when he had gone through the call recording system, he found that there were sexy conversation between accused No.1 and 2 with Mobile Phone No.9448112630, which belongs to accused No.2. The complainant after hearing the said conversation between accused Nos.1 and 2, was shocked and as he came to know about the illicit relationship between the accused Nos.1 and 2 and physical sexual relation between them. That during the subsistence of the marital relationship with the complainant-husband, the accused No.1, wife is having illicit relationship with accused No.2, who is also having his wife and children, which amounts to adultery. Thus, the complainant filed a private complaint before the Commissioner and the same has been referred to the Women Police Station for investigation. The Said Women Police Station Authorities, after recording the statement of accused Nos.1 and 2, since the offence is non-cognizable, :5: directed the complaint to approach before the Court of law. Thereafter, the learned JMFC Court Hubballi, has taken cognizance under Section 497 of IPC. Thereafter, the case came to be registered against the accused for the offence punishable under Section 497 of IPC.
4. Sri G.M.Bhat, the learned counsel for petitioner would submit that taking cognizance under Section 497 of IPC as the very section demonstrates that the wife cannot be prosecuted under Section 497 of IPC nor she can be prosecuted as an abettor too. Further he submits that the learned Judge erred in applying the mind to take cognizance of the offences under the said offence. He further submits that complainant is none other than the husband of the petitioner and he has no grievance as against accused No.2.
5. It is necessary to mention Section 497 of IPC, which reads thus;
"497. Adultery. - Whoever has sexual intercourse with a person who is and whom :6: 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."
6. It is further submitted that the petitioner has not committed any act of adultery as alleged and in view of provisions of Section 497 of IPC and the law laid down by the Hon'ble Apex Court the complaint and the cognizance of offence under Section 497 of IPC by the trial Judge is liable to be set aside.
7. Learned counsel for respondent would oppose the petition and in the circumstances the proceedings cannot be allowed to be prosecuted before the Court without jurisdiction. Accordingly, the trial Court has rightly passed the order of cognizance which falls for further proceedings and hence seeks dismissal of the petition.
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8. Whether it is convenient or corroboration when once it is prohibited or not allowed by law, whether the petitioner or respondent or the Court is venture to take cognizance of the case against the person who is exempted as per IPC which is upheld by the decisions. Insofar the accused No.2 is concerned, he is not before the Court.
9. Under the necessitating circumstances, the petition is hereby allowed with costs of Rs.5,000/- payable by the respondent to the Legal Services Authority, High Court of Karnataka, Dharwad Bench, within 30 days from the date of receipt of a copy of this order for having filed a complaint against the lady who is exempted by statute.
Sd/-
JUDGE msr