Karnataka High Court
Asma Khanum @ Noor Asma vs State Of Karnataka By on 9 July, 2020
Author: S Vishwajith Shetty
Bench: S.Vishwajith Shetty
CRL.P.NO.5478/2016
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY 2020
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
CRIMINAL PETITION NO.5478 OF 2016
BETWEEN:
1. ASMA KHANUM @ NOOR ASMA,
S/O. FIROZ PASHA,
GED ABOUT 23 YEARS,
ESIDING AT No.37, 1ST CROSS,
SOMESHWARANAGAR,
JAYANAGAR 1ST BLOCK,
BANGALORE - 560 011.
NOW RESIDING AT NO.10, MOSQUE ROAD,
KALASI PALYAM,
BANGALORE - 560 002.
2. MOHAMMED SALMAN,
S/O. ZAFRULLA,
AGED ABOUT 24 YEARS,
RESIDING AT NO.4,
GURUNATH LAYOUT,
ABIGERE MAINROAD,
KAMMAGONDANAHALLI,
BANGALORE - 560 015.
3. FAIROZ PASHA,
S/O ABDUL REHAMAN,
AGED ABOUT 30 YEARS,
RESIDING AT NO.37, 1ST CROSS,
SOMESHWARANAGAR,
JAYANAGAR 1ST BLOCK,
BANGALORE - 560 011.
NOW RESIDING AT NO.10,
MOSQUE ROAD,
KALASI PALYAM,
BANGALORE - 560 002.
CRL.P.NO.5478/2016
2
4. ZAFRULLA,
S/O MOHAMMED NAZEER,
AGED ABOUT 50 YEARS,
RESIDING AT NO.4,
14TH CROSS, GURUNATH LAYOUT,
ABBIGERE MAIN ROAD,
K.G.HALLI, JALAHALLI WEST,
BANGALORE - 560 015. ...PETITIONERS
(BY SRI HASHMATH PASHA, SR. COUNSEL FOR
SRI TEJAS.S., ADV.)
AND
1. STATE OF KARNATAKA BY
GANGAMMA GUDI,
BANGALORE - 560 015
AND CCB POLICE, BANGALORE.
2. FARHATHUNNISA @ NEELUFAR,
W/O MOHAMMED ZAHIR @ SAMIULLA,
AGED ABOUT 28 YEARS,
R/AT NO.13/1, 11TH CROSS,
2ND MAIN ROAD,
SOMESHWARA NAGAR,
JAYANAGAR 1ST STAGE,
BANGALORE - 560 011. ...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R-1;
SRI MOHAMMED TAHIR, ADV. FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE PROCEEDINGS INITIATED
IN C.C.NO.3115/2016 ON THE FILE OF VIII ACMM, BANGALORE,
WHICH IS ARISING OUT OF CR.NO.142/2015 OF GANGAMMA
GUDI P.S., BANGALORE, AS AN ABUSE OF PROCESS OF LAW.
THIS CRIMINAL PETITION HAVING BEEN HAERD AND
RESERVED FOR ORDERS ON 29.06.2020, COMING ON FOR
'PRONOUNCEMENT OF ORDERS', THIS DAY, THE COURT MADE
THE FOLLOWING:
CRL.P.NO.5478/2016
3
ORDER
The accused Nos.3 to 6 in C.C.No.3115/2016 pending on the file of 8th Addl.C.M.M., Bangalore City arising out of Crime No.142/2015 registered by Gangammagudi Police, Bangalore City, for the offences punishable under Sections 498A, 324, 506 IPC read with Sections 3 & 4 of D.P.Act, 1961, have approached this court in this criminal petition with a prayer to quash the entire proceedings initiated as against them.
2. Though the matter is posted for admission, with the consent of the learned counsel appearing for the parties, the matter is taken up for hearing.
3. Heard learned Senior Counsel Sri.Hashmath Pasha for the petitioners, Sri.Mohammed Tahir, learned Counsel for respondent No.2 and the learned HCGP for respondent No.1.
4. The second respondent, who is the defacto complainant in the present case was married to one CRL.P.NO.5478/2016 4 Mohammed Zaheer on 01.07.2012. The first petitioner is the younger sister and the second petitioner is the younger brother of said Mohammed Zaheer. The third petitioner is the husband of first petitioner and the fourth petitioner is the father of Mohammed Zaheer.
5. The second respondent herein had lodged a complaint on 21.09.2015 and on the basis of the said complaint, an FIR was registered in Crime No.142/2015 for the offences punishable under Sections 498A, 324, 506 read with Section 34 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961 as against five persons.
6. The petitioners were arrayed as accused Nos.3 to 5 in the said FIR. After investigation, the Police had filed charge sheet as against six persons including the petitioner No.4 herein.
7. In the complaint it was averred that the marriage of complainant with Mohammed Zaheer (A1) was solemnized on 01.07.2012 and at the time of CRL.P.NO.5478/2016 5 marriage, dowry was given by the brothers of the complainant and immediately after the marriage, the husband started ill-treating the complainant stating that he had married her against his will and he was in love with another girl whom he intended to marry. The complainant has stated that she withstood all the cruelty meted out on her by her husband only with a hope that everything would be set right over a period of time.
It is further alleged in the complaint that the husband used to ill-treat her at the instigation of his mother. The complainant has also alleged that a meeting was held in Masjid and her husband and in- laws were advised not to ill-treat the complainant. After the said meeting, the complainant's mother-in-law had requested the complainant and her husband to reside in a separate house at Jalahalli West, Bangalore-560 015 and accordingly, the complainant and her husband started residing in the said house. Subsequently when CRL.P.NO.5478/2016 6 the complainant was pregnant, she was assaulted and sent to her mother's house. On 26.06.2013, she gave birth to a male child.
Complainant has further stated that even after she started residing separately, she was being ill-treated by her husband's relatives and there was a constant demand for payment of dowry. On 22.6.2015, her husband allegedly assaulted her and unable to withstand the same, she called the Police, who came and took her along with the child to Gangamma Gudi Police Station. However, the said police had refused to register a case on the basis of her statement and later on, her brothers admitted her to NIMHANS Hospital, Bangalore, wherein she was treated. Since the Police had refused to receive a complaint, the complainant had approached the Commissioner of Police, Bangalore City on 21.09.2015 and on the basis of her complaint, FIR in Crime No.142/2015 was registered.
CRL.P.NO.5478/20167
8. Learned Senior Counsel Sri.Hashmath Pasha appearing for the petitioners submits that, even if the entire complaint averments and charge sheet materials are perused, there is no specific allegation with regard to any overt acts as against the petitioners herein. He submits that, except a stray statement as against the third petitioner alleging that he had advised the complainant to meet the demands of her husband, there is no other specific allegation as against any of the petitioners. Even in the further statement recorded under Section 161 of Cr.P.C., neither the complainant nor her relatives have made any specific allegations as against the petitioners. The neighbours of the house in Jalahalli West wherein the complainant and her husband were residing separately, have also not stated that the petitioners were visiting the said house. The neighbours have only said that there was a frequent quarrel between the husband and wife and their CRL.P.NO.5478/2016 8 statements do not in any way implicate the petitioners to the alleged crime.
He further submits that the first petitioner and her husband (third petitioner) are residing separately. So far as the petitioner Nos.2 and 4 are concerned, there is absolutely no allegation against them. He states that all the relatives of husband are sought to be implicated in the criminal case with an intention to harass and coerce them.
Learned Senior Counsel has further submitted that the criminal proceedings initiated against the petitioners is a clear case of abuse of process of law and for securing the ends of justice, the impugned criminal proceedings as against the petitioners is liable to be quashed.
9. On the other hand, learned Counsel appearing for the second respondent - complainant submits that the Police after investigation having found sufficient CRL.P.NO.5478/2016 9 material to proceed against the accused persons for the alleged offences have rightly filed a charge sheet against them and therefore, the proceedings against the petitioners cannot be quashed.
He further submits that the first petitioner and her husband have started residing separately after the complaint and therefore, the ground that they were separately residing would not be available to them.
10. The learned HCGP has supported the arguments of the complainant and he has prayed to dismiss the petition.
11. The Hon'ble Supreme Court in the case of Arnesh Kumar -vs- State of Bihar1 at para-4 has held as under:
"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 1 (2014) 8 SCC 273 CRL.P.NO.5478/2016 10 hands of her husband and his relatives. The fact that Section 498A 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. . . .. . . . ."
12. The Hon'ble Supreme Court in the case of Geeta Mehrotra and Another -vs- State of Uttar Pradesh & Another2 wherein the family members of the husband were included in the FIR in a casual manner has held as follows:
"25. However , we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the accused more so against the co - accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the 2 (2012) 10 SCC 741 CRL.P.NO.5478/2016 11 complainant wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of overimplication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
26 . . . .
27. The High Court in our considered opinion appears to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when then FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR do not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of specially when the FIR does not disclose ingredients of offence under sections 498- CRL.P.NO.5478/2016 12
A/323/504/506 IPC and Sections ¾ of the Dowry Prohibition Act."
13. The Hon'ble Supreme Court in the case of Preeti Gupta and Another -vs- State of Jharkhand and Another3 has held as follows:
"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 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.3
(2010)7 SCC 667 CRL.P.NO.5478/2016 13
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."
14. This Court in the case of Raghotamachar Galagali and Others -vs- Station House Officer, Mahila Police, Basavanagudi, Bangalore and Others4 has held in para-23 as follows:
"23. The Records clearly indicate that there are no specific allegations against the petitioners in respect of ill- treatment either mental or physical torture meted out to the respondent 2. Therefore, considering the facts 4 2007 SCC Online Kar 546 CRL.P.NO.5478/2016 14 and circumstances of the case and the law laid down by the Apex Court in the recent judgment in the case of Manjula Sinha, the further proceedings initiated against petitioners 1 to 5 is liable to be quashed since the ingredients of Section 498-A of the IPC and Sections 3 and 4 of the D.P. Act are not attracted. The material on records does not disclose that any specific ill-treatment and harassment was meted out to respondent 2 while she was living with the petitioners at Bangalore or when she was accompanied the 5th petitioner to Simla. Therefore, I do not find any good reasons to continue the criminal proceeding initiated against the petitioners 1 to 5."
15. In the case on hand, a careful reading of the complaint averments and the charge sheet materials clearly go to show that an attempt is made to implicate all the immediate relatives of the husband with an oblique motive. No specific averments are made as against the petitioners with regard to their role played in respect of the alleged acts. No reference is given with regard to any specific incidents wherein the petitioners have actively participated. The complainant has only made sweeping allegations against petitioners. Further, after the meeting in the Masjid, the complainant and CRL.P.NO.5478/2016 15 her husband were admittedly staying separately at Jalahalli West. The Police have recorded the statement of the neighbours, who have not spoken anything about the petitioners visiting the said house at Jalahalli West. The petitioners are sought to be implicated in the crime solely for the reason they are the relatives of the husband.
16. The Hon'ble Supreme Court in the case of Preeti Gupta (supra) having regard to the increasing tendency of implicating the relatives of the husband in criminal offences punishable under Sections 498A of IPC and the related cases has held in para-37 as under:
"37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous CRL.P.NO.5478/2016 16 social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law."
17. The learned Magistrates while taking cognizance of the criminal offences arising out of marriage dispute are required to be cautious especially when an attempt is made to falsely implicate the relatives of the husband without even there being any specific allegation as against them in the complaint only with an intention to coerce and harass the husband and his relatives. The provisions of law introduced by the legislature for protecting the weaker section should be used as a shield and not as a weapon. The judiciary in cases of misuse of such provisions of law, is required to intervene, otherwise, it may have an adverse effect in a longer run.
CRL.P.NO.5478/201617
18. Having regard to the facts and circumstances of the present case and the judicial pronouncements made by the Hon'ble Apex Court and this court, which are referred to hereinabove, this Court is of the view that the criminal proceedings initiated against the petitioners is a clear case of abuse of process of law and for the purpose of securing the ends of justice, it is just and necessary to quash the entire proceedings insofar it relates to the petitioners herein.
Accordingly, the petition is allowed. The proceedings in C.C.No.3115/2016 pending on the file of 8th Addl.C.M.M., Bangalore City, arising out of Crime No.142/2015 registered by Gangamma Gudi Police Station, insofar it relates to the petitioners, is hereby quashed.
Sd/-
JUDGE KNM/-