Karnataka High Court
Aziza Begum W/O Late Sayyed Imamsha ... vs Khairunnisa Begum W/O Syed Saddam ... on 3 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1605
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO. 200221/2021
BETWEEN:
1. AZIZA BEGUM
W/O LATE SAYYED IMAMSHA MAKANDAR
AGE: 50 YEARS
OCC. HOUSEHOLD,
R/O. SAGAR VILLAGE
TQ. SHAHAPUR
DIST. YADGIRI - 585 223.
2. IRFAN
S/O LATE SAYYED IMAMSHA MAKANDAR
AGE: 25 YEARS
OCC. AGRICULTURE
R/O SAGAR VILLAGE
TQ. SHAHAPUR
DIST. YADGIRI-585 223.
3. ASHMA
W/O FAKRUDDIN MAKANDAR
AGE: 25 YEARS
OCC. HOUSEHOLD,
R/O MUDNOOR VILLAGE,
TQ. SHORAPUR,
DIST. YADGIRI-585 220.
4. LALABEE
W/O JAVEED MAKANDAR
AGE: 27 YEARS
OCC. HOUSEHOLD
R/O. VIJAYAPURA
TQ. AND DIST. VIJAYAPURA-586 101
2
5. FATIMA
W/O SOFISHA MAKANDAR
AGE: 31 YEARS
OCC. HOUSEHOLD
R/O. MULASAVALAGI
TQ. DEVARHIPPARAGI
DIST. VIJAYAPURA-586115
6. BIBIJAN
W/O MOULASHA MAKANDAR
AGE: 60 YEARS
OCC. HOUSEHOLD
R/O. MUDNOOR VILLAGE
TQ. SHORAPUR
DIST. YADGIRI
7. BASHA
S/O NABISHA MAKANDAR
AGE: 70 YEARS
OCC. AGRICLTURE
R/O. MUDNOOR VILLAGE
TQ. SHORAPUR
DIST. YADGIRI-585220
8. ABDUL BASHA
S/O LALAHMAD SIRWAL
AGE: 42 YEARS
OCC. AGRICULTURE,
R/O. SHAHAPUR,
TQ. SHAHAPUR,
DIST. YADGIRI.
9. FAKRUDDIN
S/O MOULASHA MAKANDAR
AGE: 32 YEARS
OCC. AGRICULTURE
R/O. MUDNOOR VILLAGE
TQ. SHORAPUR
DIST. YADGIRI-585220.
10. SOFISHA
S/O KALASHA MAKANDAR
AGE: 42 YEARS
OCC. AGRICULTURE
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R/O. MULASAVALAGI
TQ. DEVARAHIPPARGI
DIST. VIJAYAPURA-586115
11. RAJIBSHA
S/O NABISHA MAKANDAR
AGE: 43 YEARS
OCC. AGRICULTURE
R/O DEVAPURA VILLAGE
TQ. SHORAPUR
DIST. YADAGIRI-585 220
12. RAJMOHAMMED
S/O MOULASHA MAKANDAR
AGE: 21 YEARS
OCC. AGRICULTURE
R/O MUDNOOR VILLAGE
TQ. SHORAPUR
DIST. YADGIRI-585 220
13. DASTAGIR
S/O MOULASHA MAKANDAR
AGE: 24 YEARS
OCC. AGRICULTURE
R/O. MUDNOOR VILLAGE
TQ. SHORAPUR
DIST. YADAGIRI-585220
14. MAKKAMMA
W/O KHASIMSHA MAKANDAR
AGE: 68 YEARS, OCC. HOUSEHOLD
R/O MAHAL ROJA
TQ. SHAHAPUR
DIST. YADGIRI-58 223
15. SAHEBBEE
W/O NABISHA MAKANDAR
AGE: 70 YEARS, OCC. HOUSEHOLD
R/O. DEVAPUR VILLAGE
TQ. SHORAPUR
DIST. YADGIRI-585220
..PETITIONERS
(BY SRI. SANJAY A. PATIL, ADVOCATE)
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AND:
KHAIRUNNISA BEGUM
W/O SYED SADDAM HUSSAIN MAKHANDAR
AGE: 28 YEARS
OCC. GUEST LECTURER
S.B. COLLEGE, SHORAPUR
R/O. ASARMOHALLA
HOSABAVI, SHORAPUR TOWN
DIST. YADGIRI
....RESPONDENT
(BY SRI. NANDAKISHORE BOOB, ADVOCATE )
THIS CRIMINAL PETITION IS FILED U/S.482 OF
CR.P.C. PRAYING TO QUASH THE IMPUGNED ORDER
DATED 13.11.2020 PASSED BY THE PRL. CIVIL JUDGE AND
JMFC, SHORAPUR IN C.C.NO.674/2020 ARISING OUT OF
PCR NO.16/2020 FOR THE OFFENCES PUNISHABLE U/SEC.
143, 448, 323, 327, 498A-A, 504, 506, R/W 149 OF IPC
AND SECTIONS 3 AND 4 OF DOWRY PROHIBITION ACT
AND ALL FURTHER PROCEEDINGS THEREAFTER.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 28.05.2021, COMING ON FOR
PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioners have filed this petition under Section 482 of Cr.P.C. for quashing the impugned order dated 13.11.2020 passed by the Principal Civil Judge and JMFC, Shorapur, in C.C. No.674/2020 arising out of PCR No.16/2020, whereby the learned Magistrate has ordered for registration of the case 5 against the petitioners for the offence punishable under Sections 143, 448, 323, 327, 498-A, 504, 506 read with 149 of IPC.
2. The brief facts leading to this case are that, the complainant/respondent-Smt. Khairunnisa Begum herein is the daughter-in-law of Petitioner No.1 and petitioners No. 3 to 5 are the daughters of Petitioner No.1, while Petitioner No.6 is the sister and Petitioner No.7 is the brother of Petitioner No.1. Petitioners No.9, 12 and 13 are the sons of Petitioner No.6 and Petitioner No.10 is the husband of Petitioner No.5. Petitioner No.14 is a distant relative of Petitioner No.1, while Petitioner No.15 is mother of Petitioner No.11. Sri. Sayyed Saddam Hussain Makhandar, who is the son of Petitioner No.1 (the husband of Respondent) got married the Respondent-Khairunnisa Begum on 12.09.2020 at Shorapur as per the Muslim Customs. Sri. Sayyed Imamsha, the husband of the 1st Petitioner- was working as Government School Teacher and he died in service and as such, the eldest 6 son-Sayyed Saddam Hussain Makhandar ie., the husband of the present respondent has got Government job in Food and Civil Supplies Department on Compassionate Ground. He was looking after the welfare of Petitioners No.1 & 2. It is alleged that, after marriage, on 12.09.2020, the respondent and her husband had gone to the house of Petitioner No.1 in Sagar Village on 13.09.2020 at 10.00 a.m. But, at that time, all the accused, who were present there, abused the complainant/Respondent and her husband in filthy language on the ground that the marriage was performed without dowry. When the husband of the complainant tried to convince and console them, they did not heed and they beat the complainant and her husband demanding Rs.15,00,000/- as dowry and 10 Tolas of gold and as such, the complainant along with her husband returned to Shorapur to her parental place. Then the complainant along with her husband went to Shorapur police station and orally narrated the incident. Then the police summoned the petitioners to 7 police station and advised them. The complainant scared to stay in their house at Shorapur and she and her husband by getting a rented house adjoining to the house of her father, started residing there itself. It is alleged that on 21.02.2020 at 10.00 a.m., all the accused came to the house of the father of the complainant at Shorapur in a Jeep and started to abuse in filthy language to the complainant and her husband. When the complainant, her husband, her father, mother and sister came out of the house and enquired, suddenly the accused picked-up quarrel with the father of the complainant and assaulted him with hands and kicked by legs, and when he raised hue and cry, his sister and mother rushed to rescue him and at that time, Accused Nos. 1 to 6 caught hold the complainant and snatched her clothes and beat her severely and also snatched Mangalasutra from her neck, which was weighing about 30 grams. It is also alleged that Accused Nos.2 to 15 also beat the complainant and her mother, sister, while Accused 8 No.7 snatched clothe of the complainant. They also demanded Rs.15,00,000/- dowry and 10 Tolas of gold; that on 22.10.2020 in the evening, they went to police station and lodged a complaint. As the police did not take any steps, it is claimed that, she was compelled to lodge a private complaint on 03.11.2020.
3. On the basis of the private complaint, the learned Magistrate has recorded sworn statement of the complainant, her father and other witness, and having found that there is sufficient material to issue process, issued process against the accused for the offence punishable under Sections 143, 448, 323, 327, 498-A, 504, 506 r/w. Section 149 of IPC and Sections 3 & 4 of Dowry Prohibition Act (for short, D.P. Act).
4. Being aggrieved by issuance of process, petitioners have filed this petition under Section 482 of Cr.P.C. for quashing the proceedings. 9
5. Heard the arguments advanced by the learned counsel for the petitioners and the learned counsel for respondent. Perused the records.
6. Learned counsel for petitioners contended that, petitioners are innocent persons and have not committed any offences as alleged in the complaint. It is contended that petitioner No.1 herself has lodged a complaint against her son ie., husband of respondent herein, who has failed to take care of herself and her son after obtaining Government job on Compassionate Ground and in order to over come, this false case came to be lodged. It is also alleged that, on 13.10.2020, the present Petitioner No.1 has filed a complaint before Shorapur Police Station, which was registered in Crime No. 257/2020 against the respondent and her husband, ie., son of petitioner No.1 and other family members for the offence punishable under Sections 341, 323, 504, 506 read with 34 of IPC and as a counterblast, the present complaint came to be lodged. It is also alleged that the learned Magistrate has not 10 strictly complied with the provisions of Section 202 of Cr.P.C. and he has erred in taking cognizance and issuing process. It is also contended that, since from the date of marriage, the respondent and her husband (son of petitioner No.1/complainant) never resided with Petitioner No.1 and as such, she demanding any dowry does not arise at all. The conduct of the respondent clearly discloses that, she has implicated all the relatives of Petitioner No.1 and she has filed a private complaint and no police complaint was filed, which establish ulterior motive. It is alleged that the allegation of demanding dowry etc., are completely false and the alleged sworn statement does not support, as no overt act is alleged. Hence, the learned counsel has sought for allowing the petition by quashing the entire proceedings.
7. Learned counsel appearing for the respondent contended that Petitioner No.1 has got all the benefits after the death of her husband and filed a false complaint against the complainant and her 11 husband. He further contended that, she demanded dowry of Rs.15,00,000/- on the ground that the complainant has taken her son and there is prima facie material as against the present petitioners. Hence, he sought for rejection of the petition.
8. After hearing arguments advanced by learned counsel for petitioners and respondent, and after perusing the records, it is evident that the husband of complainant/respondent is the eldest son of Petitioner No.1. It is also evident that, he got the job in Food and Civil Supplies Department on account of death of his father ie., husband of Petitioner No.1 on Compassionate Ground. Further, it is also evident that, from the date of marriage he was not residing with Petitioner No.1 and that the marriage was admittedly solemnized on 12.09.2020 at Shorapur. As per the case of respondent herself, none of petitioners and relatives of her husband have attended marriage. The allegation of petitioner No.1 discloses that the husband of Respondent/complainant has neglected the 12 petitioners and as such, she lodged a complaint with the Assistant Commissioner seeking maintenance. This fact is evident from copy of the notice issued to the husband of respondent by the Assistant Commissioner for enquiry on 30.09.2020. Further, it is also evident that the present Petitioner No.1 has filed a complaint on 13.10.2020 against the respondent, her husband ie., son of Petitioner No.1 and two others for the offence punishable under Sections 341, 323, 504 and 406 r/w. Section 34 of IPC. These aspects clearly establish that the relationship between the parties is strained considerably.
9. The private complaint is dated 03.11.2020, wherein it is alleged that the incident has taken place on 21.10.2020. But, prior to that itself, on 13.10.2020, Petitioner No.1 has lodged a complaint against the respondent and her husband. In the private complaint, certain allegations were made regarding earlier incident dated 13.09.2020 and further asserted that the police have summoned the petitioners and 13 advised them. But if that is the case, N.C case should have been registered in the police station, but no such documents are produced by the respondent. The allegation is that, on 21.10.2020, all the petitioners came in a Jeep. Very interestingly, the Jeep number is not disclosed and it is hard to accept that, all 15 petitioners, residents of different places have traveled in one jeep. In the complaint, no specific overt act is alleged against petitioners No. 8 to 15. Further, no abusive words were quoted or stated and simply an allegation is made that they have abused. As per the complaint, the first incident has taken place on 13.09.2020 ie., at 10.00 a.m., ie., next day of marriage. But, very interestingly, in the sworn statement, the complainant and her father have stated that, first incident has taken place on 12.09.2020 evening. This is completely contrary, because, the marriage was taken place on 12.09.2020 itself. Further in the written statement, it is asserted that the 14 petitioners came in a Kruser vehicle, but again number of the vehicle was not disclosed.
10. In the sworn statement, the complainant has specifically asserted about usage of abusive words "Rande" and "Soole". But, they were not referred in the complaint itself. Further, in the sworn statement, the complainant has asserted that she has not witnessed assault on her father, as she was inside the house. But, the allegations in complaint were entirely different. Further, the sworn statement is completely silent regarding individual overt acts and she asserted that on 22.10.2020 a written complaint is filed. But, copy of such complaint is also not forthcoming. Contrary to the complaint, her father in his sworn statement added that along with Jeep, petitioners came on two wheelers also. This is a new story. He has not stated regarding abusive words and assault on complainant.
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11. The learned Magistrate while taking cognizance has not even applied his mind. The order sheet dated 04.11.2020 discloses that the place to be filled as to in respect of which offences he has taken cognizance, was kept blank and by keeping the entire portion blank, he signed the order sheet. Cognizance will not be of the offender, but it will be pertaining to the offence. But that itself is not stated. Further, there is an order on the same day that, since there is an allegation regarding non-taking steps by the police on complaint, he is proceeding to record the statement. In that event, the learned Magistrate should have called a report from the Investigation Agency. Further, when the petitioners are not residing within the same jurisdiction, Section 202 of Cr.P.C. mandates to post-pone issuing of process and either he himself enquire into the case or direct investigation to be made by the police officer. But, he has not conducted any enquiry in this regard by following procedure contemplated under Section 202 of Cr.P.C. 16 and in a mechanical way, he recorded the sworn statement of the witnesses and proceeded to issue process. This has resulted in miscarriage of justice. When Petitioner No.1 herself is accusing her eldest son ie., the husband of the respondent/complainant regarding ignoring to maintain her, question of she demanding dowry does not arise at all. From the date of marriage, they are not residing together so as to demand any dowry and when complainant's husband himself is not a part of it, question of Petitioner No.1 demanding dowry does not arise at all. Hence, the allegations under Section 498-A and under the provisions of Dowry Prohibition Act are only invoked to create some seriousness in the proceedings. The complainant and her husband themselves are facing trail on the basis of the complaint lodged by Petitioner No.1. The allegations further disclose that, the husband of respondent is not maintaining the Petitioner No.1 and other dependants. Further, the sworn statement is also silent regarding individual 17 overt acts and inconsistent version is given regarding earlier incident dated 12.09.2020 or 13.09.2020. Further, the petitioners are not residing in the same address, where the Magistrate exercises jurisdiction and hence, he should have held an enquiry or he could have referred the matter for concerned police station for investigation. But without applying his mind, he has straightaway proceeded to issue process against the petitioners for the offence punishable under Sections 143, 448, 323, 327, 498-A, 504, 506 r/w. Section 149 of IPC and also under Sections 3 and 4 of the D.P. Act. What is individual overt act of the petitioners/accused is also not stated and only omnibus statement has been made. Further, the offence under Section 427 is incorporated regarding mischief. But, there is no evidence regarding mischief and the allegations are regarding snatching away Mangalasutra, and this aspect is not challenged by the respondent. All these aspects disclose that, the private complaint is only an out-come of the complaint lodged 18 by Petitioner No.1 before the Assistant Commissioner against her eldest son ie., the husband of complainant and also lodging a complaint in Shorapur Police Station in Crime No.257/2020. Hence, as a counter to the same, this private complaint has been filed and the learned Magistrate without following due procedure as contemplated under Section 202 of Cr.P.C., straightaway proceeded to issue process, which has resulted in miscarriage of justice. The contention of the learned counsel for respondent that, 'Petitioner No.1 has got all benefits after the death of her husband', has no relevancy at all, as she is legally entitled for the same and when the job was secured by her son ie., the husband of respondent on compassionate grounds, it is his legal obligation to maintain the other dependants. Other part of argument that, 'there was a demand of Rs.15.00 Lakhs on the ground that the respondent has taken away the son of Petitioner No.1', does not have any evidentiary 19 value and convincing evidence is not forthcoming in this regard.
12. In these circumstances, looking to the facts and circumstances of the case, it is evident that, filing of private complaint is an abuse of the process of law. Hence, the petition is required to be allowed. Accordingly, I proceed to pass the following:-
ORDER The petition is allowed. The entire proceedings on the file of the Principal Civil Judge and JMFC, Shorapur, in CC No.674/2020 (arising out of PCR No.16/2020) for the offence punishable under Sections 143, 448, 323, 327, 498-A, 504, 506 r/w. 149 IPC and Sections 3 and 4 of the D.P. Act, are quashed.
Sd/-
JUDGE KGR*