Karnataka High Court
Sri A V Venkateshwaran S/O Late V ... vs The State Of Karnataka on 26 August, 2015
Author: Rathnakala
Bench: Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST 2015
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL PETITION NO.7147/2011
BETWEEN:
1. SRI A.V.VENKATESHWARAN
S/O LATE V.AKILANDESHWARAN
AGED ABOUT 74 YEARS
2. SMT.MEINALOCHANA
W/O LATE V.AKILANDESHWARAN
AGED ABOUT 67 YEARS
BOTH ARE RESIDING AT NO.5, 'SRI RAMA',
AICOBOO NAGAR,
B.TM. LAYOUT,
BANGALORE - 560 068.
...PETITIONERS
(BY SRI M.P.SRIKANTH, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY STATION HOUSE OFFICER,
HALASURGATE WOMEN'S POLICE STATION,
N.R.SQUARE,
BANGALORE - 560 002.
2. SMT.S.L.SOUNDARAM
D/O SRI S.H.LAKSHMAN
AGED ABOUT 30 YEARS
2
RESIDING AT NO.4, 19TH CROSS,
LAKSHMIPURAM, ULSOOR,
BANGALORE - 560 008.
...RESPONDENTS
(BY SRI B.BOPANNA, ADV. FOR R2;
SRI B.VISWESWARAIAH, HCGP. FOR R1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE ORDER DATED
2.6.2007 TAKING COGNIZANCE OF THE OFFENCE P/U/S
498A OF IPC AND R/W 3 & 4 OF D.P. ACT AND ALSO SEC.494
AND 109 OF IPC AS AGAINST THE PETITIONERS AND ALL
FURTHER PROCEEDINGS IN C.C.NO.15327/99 PENDING ON
THE FILE OF THE VI ADDITIONAL CMM., BANGALORE.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The cognizance taken by the jurisdictional Magistrate against these petitioners in respect of the offences punishable under Section 498A of IPC read with Sections 3 and 4 of Dowry Prohibition Act and also Sections 494 and 109 of IPC, is under challenge in this petition.
2. The complainant / respondent No.2 is the ex-wife of the son of the petitioners. During the pendency of this petition, the 3 first petitioner expired and the second petitioner is the accused No.3 before the trial Court.
3. As put forth by the petitioners, the son of these petitioners namely V. Rajaraman (1st accused before the Court below) was granted decree of divorce against the complainant on 08.01.1997. Subsequently, on the application moved by the wife in the said petition, the decree was set aside vide order dated 07.08.2001. In between period of divorce and restoration of the case, the said Sri V.Rajaraman married one Suchitra Krishnamurthy. The second respondent / Smt. S. L. Soundaram, filed a private complaint against seven accused persons, arraigning V.Rajaraman as first accused and petitioners as accused Nos.2 and 3 and second wife as accused No.4 and her parents and sisters as accused Nos.5 to 7, alleging offences against all the accused under Sections 3 and 4 of Dowry Prohibition Act and Sections 498A and Section 494 of IPC r/w. Section 109 of IPC.
4
4. On the accused Nos.5 to 7 approaching this Court under Section 482 of Cr.P.C., in Crl.P.No.307/2008 c/w. Crl.P.No.4064/2007, this Court held that there is no prima facie material in respect of the offence under Section 494 or Section 109 of IPC (in respect of which they were charge sheeted) and the criminal proceedings in respect of accused Nos.5 to 7 was quashed.
5. Now it is the submission at the Bar, that the observation made by this Court in Crl.P.No.307/2008 c/w.
Crl.P.No.4064/2007, respect of the offences punishable under Section 494 of IPC equally applies in respect of the other offences under Section 494 of IPC and Sections 3 and 4 of D.P.Act, with the same force, since as on the date of the lodging the complaint on 23.07.1998, the marriage between the complainant and the son of the petitioners / Sri V.Rajaraman / 1st accused was not in force. In that view of the matter, there was no relationship between the petitioners and the complainant. After one year six months of the dissolution of the marriage, complaint was lodged and as on the said date, the first accused cannot be termed as the husband of the 5 complainant and no cognizance could have been taken against these petitioners for the offences punishable under Section 498A of IPC r/w. Sections 3 and 4 of D.P.Act, and cognizance in respect of offence punishable under Section 494 of IPC can be taken against the erring spouse only and not against the relative of the erring spouse. Their son had married for the second time after expiry of the appeal period contemplated under Section 15 of the Hindu Marriage Act, 1955. When there is no case against these petitioners for the offence under Section 494 of IPC, there is no offence for abetment of said offence under Section 109 also.
6. As per the submission made at the Bar, this petition was filed and proceedings before the criminal Court was stayed, while the trial was in progress. These petitioners without exhausting the remedy available under Section 239 of Cr.P.C., have invoked the extraordinary remedy under Section 482 of Cr.P.C., which is not permissible.
6
7. In that view of the matter, the petition is dismissed reserving liberty to the petitioners to work out remedy before the jurisdictional Magistrate under section 239 of Cr.P.C. and to raise all the contentions.
If such an application is filed, the concerned Court shall dispose of the application at the earliest after hearing both the parties, having regard to the fact that second petitioner/third accused is a senior citizen.
Sd/-
JUDGE nvj