Karnataka High Court
Ravikumar vs Smt Kanumakka on 18 September, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION NO.7276/2012
BETWEEN:
1. Ravikumar
S/o Sejappa
Age - 42 years
2. Chandramma
W/o Ravikumar
C/o Chikkaveeraiah
Age 31 years
Retired veterinary Assistant
Lodpura Sira town-572137
3. Sejappa
S/o late Lingappa,
Age-70 years
4. Smt.Rangamma,
W/o Sejappa
5. Basavaraj S/o Sejappa,
Age 32 years,
All are residents of
Thavandi village,
Hiriyur Taluk - 572143
Chitradurga District.
6. Rangaswamy S/o late Dodda
Hanumappa, age 35 years
Resident of Etikurke at Post,
Hiriyur Taluk - 572143
Chitradurga District.
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7. Honnurappa S/o late
Hanumanthappa,
Age 58 years, Door No.5
Housing Board Colony,
Vedavathi Nagara,
Hiriyur Town - 572143.
8. Thippeswamy
S/o Honnurappa, Door No.5
Aged 30 years,
Housing Board Colony,
Vedavathi Nagara
Hiriyur Town - 572143.
9. Smt Basamma W/o
W/o Manjunatha
Aged 40 years
Door No.5
Housing Board Colony,
Vedavathi Nagara,
Hiriyur Town - 572143. ...Petitioners
(By Sri K.Hanumantharayappa, Advocate)
AND:
Smt. Kanumakka
Alleged wife of Ravikumar
Aged about 47 years
Resident of
Vedavathi Nagara
In front of B.L.Gowda's houses,
Hiriyur Town - 572143. ...Respondent
(By Smt. H.R.Anitha, Advocate)
This criminal petition is filed under Section-482 of
Cr.P.C praying to set aside the order dated 25.11.2008
passed by the J.M.F.C., Hiriyur taking cognizance of the
complaint dated 23.02.2007 filed by the respondent in
C.C.763/2008 on his file and consequently dismiss the
complaint by allowing this petition.
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This Criminal Petition coming on for Final hearing this
day, the Court made the following:
ORDER
This petition is filed under Section 482 of Cr.P.C. The petitioners seek to set aside the order dated 25.11.2008 passed by JMFC, Hiriyur taking cognizance of the private complaint dated 23.02.2007 in relation to offence punishable under Section 494 read with Section 149 of IPC.
2. Brief facts of the case are as follows;
i) The complainant claims to be the wife of first accused Ravikumar. According to her, their marriage took place on 05.07.1994 in a temple at Sira Town. After marriage, she lived with her husband for one month in her parents place at Dharmapura. Then the third accused i.e. father of the first accused took her and the first accused to his house at Thavandi village. They lived there together for six months. Then, they came to Hiriyur and lived together for eight 4 years. It is stated that first accused sent the complainant to her parents house as he was expecting Government employment ad in that connection he was suggested to stay in Bangalore about a month. Having sent the complainant to her parents house, the first accused married second accused on 18.08.2003 at Darmastala and they got their marriage registered in the office of Sub-Registrar, Hosadurga on 21.08.2003. It is stated that the other accused instigated the first accused to marry the second accused. Therefore, the complainant approached Court of Magistrate by filing a complaint under Section 200 of Cr.P.C alleging offence under Section 494 of IPC.
ii) Learned Magistrate recorded the sworn statement and thereafter, took cognizance of the offence. Hence, the accused are before this Court to set aside the order of taking cognizance.
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3. Learned counsel for the petitioners argues that the trial Court has committed an error in taking cognizance of the offence. He argues that at the instance of the complainant, Hiriyur police had registered an FIR for the offences punishable under Section 504, 498A, 506 read with Section 34 of IPC against the some of the accused. On 22.02.2007, the learned Magistrate decided the case in acquitting all the accused of the offence. While acquitting, learned Magistrate has made an observation that there was no proof with regard to marriage of complainant having taken place with the first accused by following the customs and rituals applicable to their community. The earlier testimony of the complainant who gave evidence as PW1 in CC.No.281/2005 was not consistent with the prosecution case. She failed to prove her marriage with the first accused. The main allegations in the complaint are with respect to the offence under Section 494 of IPC and therefore, the other offences are incidental because there was no 6 believable evidence with regard to marriage of complainant with the first accused. It was difficult to held that the complainant was subjected to harassment constitutes offence under Sections 504, 498A, 506 of IPC. Referring to these observation, the learned counsel further argues because there has been finding by the learned Magistrate in this manner, the very institution of private complaint from next day after the judgment in CC.No.281/2005 shows that, only for the purpose of harassing the accused it was made. Unnecessarily all the accused have to face the trial. When there are no material prima-facie indicating the circumstances constitutes offence under Section 494, the learned Magistrate should not have taken cognizance. This is a fit case for setting aside the order of learned Magistrate by exercising power under Section-482 of Cr.P.C.
4. Learned counsel for the respondent argues that in CC.No.281/2005, the compliant wife alleged harassment on her and therefore, the police have 7 registered FIR for the offences punishable under Sections 504, 498A, 506 of IPC. Offence under Section 494 was not alleged in the said case. If the learned Magistrate makes any observation with regard to first marriage, it cannot be a bar for instituting separate complaint in relation to the offence under Section 494 of IPC. Further she also referred to another observation of the learned Magistrate to the effect that under Section 494 IPC, special procedure has been contemplated under Section 198 of Cr.P.C. and it was necessary to be followed. Therefore, the observations of the learned Magistrate was that such procedure should be followed. In view of this observation, if the wife instituted private complaint, and subsequent to that if learned Magistrate, having found materials proceeded to take cognizance, it cannot be said that the order of taking cognizance was illegal. The burden is on the complainant to prove her marriage. Therefore, at this stage there are no prima- facie materials so as to interfere under Section 482 of Cr.P.C.
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5. Having heard the both the sides it is to be stated that if the judgment in CC.No.281/2005 is perused, what can be made out apparently is that the accused faced trial in relation to Sections 504, 498A, 506 read with Section 34 of IPC as complainant-wife alleged harassment on her by the accused. Charges were also framed for the said offences. No charge was framed under Section 494 of IPC. While the complainant (PW1) was being cross-examined, some question relating to her marriage were put; and having considered the answers given by PW1, the learned Magistrate made observation that there was no positive indication to say that marriage was performed by following necessary custom and rituals prevailing in their community and earlier evidence of PW1 was not consistent with the prosecution case. Making observation like this, learned Magistrate would further hold that the allegations with regard to offence punishable under Sections 504, 498A, 506 were incidental to the marriage and because the 9 evidence with regard to her marriage was inadequate, the accused persons were acquitted. The Magistrate has also made an observation that with regard to offence under Section 494 IPC, a special procedure has been prescribed and it was necessary to be followed. This observation makes it very clear that even the Magistrate was of the opinion that the complainant had to institute a separate private complaint if at all first accused contracted marriage with another woman during the subsistence of first marriage. Some observation made with regard to complainant and first accused while disposing of CC.No.281/2005, it cannot be said that the complainant was precluded from initiating under Section 200 of Cr.P.C. It is true that CC.No.281/2005 was disposed of on 22.02.2007 and that on very next day she initiated the private complaint. Nothing strange can be viewed in it. If in CC.No.281/2005, the offence under Section 494 had been tried along with other offence, probably the argument of learned counsel for the petitioners was worth for acceptance. If incidental 10 remarks are made with regard to the marriage, it does not mean that the wife has no right to initiate action under Section 200 of Cr.P.C. The burden is on her to prove her case.
Therefore, in my opinion the judgment in CC.No.281/2005 does not benefit to accused. The offence under Section 494 stands distinctly from the offence alleged in the said criminal case. Under these circumstances, I do not find there is infirmity in taking cognizance and there cannot be inference in it. Consequently, petition is dismissed.
Sd/-
JUDGE SB