Karnataka High Court
Smt Shobha Rani vs State Of Karnataka on 25 June, 2019
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION No.2936/2017
BETWEEN:
1. Smt.Shobha Rani,
W/o.G.Ramana,
Aged 35 years.
2. Smt.Sharadamma,
W/o.Late Rajanna,
Aged about 61 years.
Petitioners 1 and 2 are residing
At No.C81, Shanthi Nivasa,
I Link Road, 4th Cross,
Kuvempunagara,
Tumkur Town, Tumkur.
3. Manjunatha,
S/o.Late.Linganna,
Aged about 41 years.
4. Smt.Sujatha.S.R,
W/o.Manjunath,
Aged about 36 years.
Petitioners 3 and 4 are
Residents of behind Manjushri
Convent, Mylara Lingeshwara
Nilaya, Keshavanagar,
Sira Town, Tumkur District.
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5. Srinivasa,
S/o.T.Venkataramanappa,
Aged about 40 years.
6. Smt.Gayathri.S.R,
W/o.Srinivasa,
Aged about 39 years.
Petitioners 5 and 6 are
Residing at No.160/34,
4th 'A' Cross, MES Ring Road,
Babusalingara, Jalahalli,
Bengaluru.
7. Smt.Shanthakumari @ Shantha,
W/o.Eshwarappa,
Aged about 38 years,
R/at Sri.Dyavalamba Devi Nilaya,
Hosamane, 5th Cross,
Shivamoga.
8. Kum.Sridevi.S.R,
D/o.Sharadamma,
Aged about 32 years,
R/o No.C81, Shanthinivasa,
I Link Road, 4th Cross,
Kuvempunagara,
Tumkur Town, Tumkur. ...Petitioners
(By Sri.A.N.Radhakrishna, Adv.,)
AND:
1. State of Karnataka,
By R.T.Nagar Police,
Bengaluru,
Represented by
The State Public Prosecutor,
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High Court Buildings,
Bengaluru-560 001.
2. Sri.G.Ramanna,
S/o.Late.Venkatappa,
Aged about 39 years,
Residing at No.215,
Sai Nilaya, 5th Cross,
5th Main, Ganganagara Layout,
Bengaluru-560 032. ...Respondents
(By Sri.Vijayakumar Majage, Addl.SPP for R1;
Sri.T.M.Venkata Reddy, Adv., for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the complaint/FIR in Crime
No.255/2016 of R.T.Nagar Police, Bengaluru, for the
offences p/u/s 307, 316, 317, 326, 373(A), 369, 390 to
392, 420, 506 r/w 149 of IPC pending on the file of VIII
Additional Chief Metropolitan Magistrate, Bengaluru.
This Criminal petition coming on for Admission, this
day, the Court made the following:
ORDER
Petitioners have sought to quash the FIR registered against them in Crime No. 255/2016 of R.T.Nagar Police, Bengaluru, for the alleged offences punishable under Sections 307, 316, 317, 326, 373(A), 369, 390 to 392, 420, 506 r/w 149 of IPC.
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2. Heard learned counsel for the petitioners and the learned Addl. SPP appearing for respondent No.1 and the learned counsel appearing for respondent No.2. Perused the records.
3. Respondent No.2 filed a private complaint against the petitioners on 23.08.2016 seeking their prosecution for the alleged offences punishable under Sections 307, 316, 317, 326, 373(A), 369, 390 to 392, 420, 506 r/w 149 of IPC. On receiving the said complaint, the learned Magistrate referred the same for investigation under Section 156(3) of Cr.P.C. The order passed by the learned Magistrate in this regard dated 07.09.2016, reads as under:
"Perused the complaint and the
documents. Register the case as PCR and
refer the matter for investigation u/s 156(3) Cr.P.C. to P.I., J.C.Nagar P.S. and await report by 28.12.2016."
4. The above order, on the face of it, indicates that the learned Magistrate has failed to apply his mind to the 5 facts of the case. The learned Magistrate has not even bothered to see whether any cognizable or non-cognizable offences have been made out in the complaint. The order sheet does not even disclose the offences which are alleged to have been committed by the petitioners. The complaint is not accompanied with any affidavit as observed by the Hon'ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287. It is not clear from the complaint as to whether the remedy under Section 154(1) of Cr.P.C. was exhausted before invoking the jurisdiction under Section 200 of Cr.P.C. In the wake of these defects amounting illegalities, the impugned order cannot be sustained and solely on this ground, the impugned complaint/FIR is liable to be quashed.
5. Even the averments made in the complaint do not disclose the commission of the alleged offences. A reading of the complaint indicates that the marriage between Smt. Shobha Rani - the first petitioner and Sri. G. Ramana - the 6 second respondent was performed on 23.05.2013. From the averments in the complaint, it can be gathered that their marriage was on rocks and serious differences had erupted by the time the complaint was lodged. In the complaint it is alleged that the petitioners herein kidnapped the child of the second respondent. Interestingly, the marriage between second respondent and the accused No.1 was subsisting. Petitioner No.1/accused No.1 being the mother and the natural guardian of the child was entitled under law to have the custody of the child. Therefore, even assuming that the child was moved from the custody of the second respondent, the custody held by the first petitioner could not be termed as illegal custody, amounting to an offence under Section 363 of IPC. The learned Magistrate has miserably failed to consider this aspect of the case.
6. Petitioners have produced before this Court the records pertaining to the proceedings of the Child Welfare Committee which indicates that, much before the lodging of the private complaint, the dispute regarding the custody of 7 the child was seized by the Child Welfare Committee. The child was produced before the Child Welfare Committee on 26.05.2016 and on various other dates. By order dated 24.11.2016, the custody of the child was given to the mother, namely petitioner No.1/accused No.1. In the said proceedings, it was also noticed that the respondent No.2 had filed G & WC 25/2016. It is unfortunate that, suppressing these facts, respondent No.2 filed the private complaint making it to appear that the child was unlawfully taken away from his custody. All these facts, therefore clearly indicate that respondent No.2 has abused the criminal process of Court and by suppressing material facts, has set the criminal law in motion.
7. There are further allegations in the complaint which read as hereunder :
"On 28.12.2015, the accused No.1's mother, sisters and brother-in-laws came to the complainant's house without informing the complainant and they kidnapped Master Thejas and stolen the belongings of the complainant 8 such as all the jewels and other costly articles and clothes available in the complainant's house worth about Rs.5,00,000/- (Rupees five lakhs) in a Tata Sumo without any intimation or information to the complainant or to his mother. On 09.01.2016 the complainant went to the accused No.1's parent's house to see the child Thejas."
8. Curiously, in the complaint the complainant has unequivocally stated that he was residing in Ganganagar Layout, Bangalore, whereas the petitioners herein namely accused No.1 and others are stated to be the residents of Tumkur. It is not forthcoming as to how all the petitioners herein came to the house of the second respondent on the alleged date. Going by the description of the articles, it appears that those gold ornaments were belonging to petitioner No.1. All these circumstances therefore go to show that a false complaint has been filed by respondent No.2, obviously to settle scores with his wife. Under these circumstances, it was incumbent on the learned Magistrate 9 to consider all these aspects before directing investigation into the matter.
9. The learned counsel for the petitioners submits that during investigation, petitioner No.1 has given an undertaking before the Police, to return the gold ornaments. If there is such an undertaking, the same may be taken advantage of by the respondent to claim back the alleged articles, but the same do not constitute the offence of robbery.
10. In that view of the matter, the entire proceedings initiated against the petitioners being illegal and malafide, false and baseless, cannot be sustained.
Consequently, the petition is allowed. The FIR registered against the petitioners and all consequential proceedings arising therefrom are hereby quashed.
Sd/-
JUDGE Mgn/-