Karnataka High Court
Shri. Sahadevappa Doddasiddappa ... vs Shri. Channappa S/O. Pitambarappa ... on 16 June, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 100974/2014
BETWEEN:
Shri. Sahadevappa Doddasiddappa
Hosmani, Age: 33 years,
Occ: Agriculture, R/o Dombar Oni,
Gopankoppa, Hubli-580 020,
Dharwad District. ... Petitioner
(By Sri. Santosh D. Nargund, Adv.)
AND:
1. Shri. Channappa
S/o Pitambarappa Hosmani,
Age: 33 years, Occ: Agriculture,
R/o Dombar Oni, Gopankoppa,
Hubli - 580 020,
Dist. Dharwad.
2. Smt. Geeta W/o Channappa
Hosmani, Age: 30 years,
Occ: Household, R/o Arhal-583 227,
Taluka: Gangavati, Dist. Koppal.
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3. State of Karnataka,
Represented by Addl. SPP,
Dharwad Bench. ... Respondents
(By Sri. Vijayakumar Majage, HCGP for R-3)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
P.C. NO. 252/2013 ON THE FILE OF JMFC-II, HUBLI
AND THE ORDER OF ISSUE OF PROCESS DATED
25.09.2013 PASSED BY THE JMFC-II, HUBLI IN P.C.
252/2013 (C.C. NO.1171/2013) FOR THE OFFENCE
PUNISHABLE UNDER SEC. 497 IN SO FAR AS
PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION, THIS DAY THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned Counsel for the petitioner and perused the records.
2. The respondent No.1 - Sri. Channappa lodged a private complaint against his wife Smt. Geeta who is arrayed as respondent No.2 herein and also against this 3 petitioner alleging offences under Sections 494 and 497 of I.P.C.
3. The learned Counsel strenuously contended that even translating the entire allegations made in the complaint and also the sworn statement, it does not disclose any material to attract the provisions under section 494 or under section 497 of I.P.C. in order to continue the prosecution against this petitioner. He also contends that there is no proof given by the 1st respondent against this petitioner and as well as the 2nd respondent to show their illegal relationship between each other. He also contends that earlier in Criminal Petition No. 100413/2014 this Court was pleased to quash the proceedings against the 2nd respondent herein. Therefore, for all these reasons he contends that continuation of the prosecution amounts to abuse of process of the Court against this petitioner and 4 hence, the proceedings in C.C. No. 1171/2013 on the file of the JMFC-II Court, Hubli is liable to be quashed.
4. On careful perusal of the complaint averments, it is alleged by the complainant - Channappa that the accused No.1 - Smt. Geeta is his legally wedded wife, she has illicit intimacy with the 2nd accused and they have been living as husband and wife in a common residence. It is also stated that the photographs of accused Nos.1 and 2 were taken when they were together. It is also categorically alleged that accused Nos.1 and 2 have got illicit relationship with each other knowing fully well that the 1st accused is the wife of the complainant. The marriage between the complainant and the 1st accused is still in existence and no divorce had taken place. On these reasons, the complainant requested the Court to take cognizance and he has also given his sworn statement. On perusal of the complaint 5 averments and sworn statement, the Trial Court has taken cognizance.
5. After going through the contents of the complaint averments and the sworn statement and on perusal of Section 494 and 497 of I.P.C. relying upon the decision of the Apex Court reported in V. Revathi Vs. Union of India and others (AIR 1988 SC 835) as well as State of Haryana and others Vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335 and also meticulous reading of Section 494 and 497, this Court was of the opinion that the complaint is not maintainable so far as the wife is concerned. This Court had made an observation that, on plain reading of the complaint averments there is absolutely no pleadings in the complaint that the accused Nos.1 and 2 (i.e. petitioner and respondent No.1 herein) have married each other during the existence of the marriage between the complainant and as well as the 1st accused. There 6 is no mention whether they were married each other. But it is only stated that they have been living together as husband and wife. Nothing is there in the complaint averments that since how long they have been residing in such a manner under a common roof and no ingredients of Section 494 of I.P.C. have been stated in the complaint nor any rituals being followed by the accused Nos.1 and 2 to marry each other. Therefore, the Court has held that the Trial Court has committed a serious error for taking cognizance for the offence under Section 494 of I.P.C.
6. This Court also observed that the Apex Court in the above said decision has held that Section 497 of I.P.C. is not applicable between husband and wife. Neither the husband nor the wife can file any complaint against each other for committing adultery. It is only against third person the said provision can be invoked. Therefore, relying upon the above said Ruling and the 7 complaint averments, this Court has quashed the proceedings against the wife of the complainant i.e. 2nd respondent herein. The above said observations made by this Court so far it relates to Section 494 of I.P.C. is concerned is equally with all force applicable to present petitioner also because at the cast of repetition I can say that there are no averments in the complaint nor in the sworn statement with regard to the second marriage between accused Nos.1 and 2 during the existence of the marriage between the complainant and accused No.1. Therefore, I am of the opinion, the proceedings in C.C. No.1171/2013 pending on the file of JMFC-II so far it relates to Section 494 of I.P.C. is concerned deserves to be quashed against this petitioner also.
7. Coming to the provision under Section 497 of I.P.C., the Apex Court as said in the above said decision AIR 1988 SC 835 that :
8
"Section 497 of Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus, the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and wife are disabled from striking each other with the weapon of criminal law".
Coupled with the above said Judgment of the Apex Court, Section 497 of I.P.C. reads thus:
"Whoever has sexual intercourse with a person who is and whom 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, and thereby he is guilty of the offence of adultery".
The above said provision and meaningful understanding of the Apex Court Ruling gives a meaning that a third 9 party who intervenes with the relationship between the husband and wife who develops sexual activity with the wife of another such third person is only liable for punishment under Section 497 of I.P.C.
8. Therefore, looking to the above said provision of law and the Apex Court findings, now the Court has to see whether there are any allegations in the first information report in order to connect the accused persons into the crime, but no prima facie material is available to allow the continuation of the prosecution. It is seen from the complaint averments, it is categorically stated that the accused No.1 Smt. Geeta is indisputably the wife of complainant, their marriage took place on 25.04.1999. After marriage, the accused No.1 came to Hubli to the house of the complainant and even from the inception the complainant had doubt with regard to the conduct of accused No.1. It is categorically stated that the accused Nos.1 and 2 have illicit relationship 10 with each other and the complainant has personally seen their illegal activities with each other and in spite of advising the accused No.2 to give up his illicit intimacy with accused No.1, but he did not desist himself from continuing such relationship with accused No.1. It is also stated by the complainant that there was a quarrel between the complainant and accused Nos.1 and 2, which was also seen by the elders of the village. They also in fact, advised accused No.1 not to continue such illegal relationship, which went in vain. It is also specifically alleged that accused No.1 delivered a female child, the complainant alleges that the said child also born through accused No.2. The specific allegations are made that accused Nos.1 and 2 are residing together in a common roof and they are living each other like husband and wife. The accused No.2 knowing fully well that accused No.1 is the wife of the 11 complainant, but he continued the said illicit relationship with accused No.1.
9. Therefore, for all these reasons, the complainant called for taking action against the petitioner herein for the offence under Section 497 of I.P.C. The same averment has been reiterated in the sworn statement.
10. Therefore, looking to the complaint averments and the sworn statement, there are sufficient materials to show that the complainant has made allegations against this petitioner which are sufficient to constitute an offence under Section 497 of I.P.C. Therefore, in view of the definition under Section 497 of I.P.C. and the allegations made in the complaint, I don't find any strong reasons to differ from the opinion of the learned Magistrate in taking cognizance for the offence under Section 497 of I.P.C. against the petitioner herein. 12 Therefore, the said proceedings under Section 497 of I.P.C. cannot be quashed.
11. Hence, the following Order :
The petition is partly allowed. The proceedings in C.C. No.1171/2013 pending on the file of J.M.F.C. II Court, Hubli so far it relates to offence under Section 494 of I.P.C. is concerned is hereby quashed. The learned Magistrate is directed to proceed against the accused to deal with the offence under Section 497 of I.P.C.
Sd/-
JUDGE Rbv