Karnataka High Court
Syed Asif Ali vs The State Of Karnataka on 5 November, 2020
Author: K.Somashekar
Bench: K.Somashekar
R
:1:
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO. 2614 OF 2017
BETWEEN
1. Syed Asif Ali
S/o Syed Abdul Hamed
Aged about 43 years
Ahmadiya Manzil
XVI ward, Gold Smith Street
Bellary - 583101.
Presently Residing at
Building #119, ME-12
Flat No.203, Muaftah Shabia - 12
ABU DHABI, United Arab Emirates.
2. Syed Iqbal
S/o Syed Abdul Hamed
Aged about 41 years
Ahmadiya Manzil
XVI Ward, Gold Smith Street
Bellary - 583101.
Presently Residing at
Oman Shawriji Co.LLC
P.O. Box 1347 Ruwi
Postal Code 112
Sultanate of Oman.
... Petitioners
(By Sri. Ambaji Rao Nagarae, Advocate (Absent))
:2:
AND
1. The State of Karnataka
By Halsurgate Woman Police
Bangalore
Represented by SPP.
2. Hina Kouser
Aged about 35 years
W/o Syed Zakir Hussain
D/o Syed Hussain
R/at No.613, 4th Cross
Muniveerappa Layout
Opp. To Mother Therisa School
Sampur, Bangalore - 560 045.
... Respondents
(By Smt. K.P. Yashodha, HCGP for R-1;
R-2 served but unrepresented)
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to, quash the
entire proceeding in Crime No.41/2009 dated 05.07.2009,
lodged by the Halsurgate Woman Police which is pending
in C.C.No.2960/2014 on the file of VI ACMM, Bangalore
for the offence punishable under Sections 498A, 506 of
IPC and Sections 3 and 4 of D.P. Act.
This Criminal Petition coming on for Admission, this
day, the court made the following:
ORDER
This petition is filed seeking quashing of the entire criminal proceedings in Crime No.41/2009 registered by the respondent No.1 - Halsurgate Woman police for the :3: offence punishable under Section 498A, 506 of IPC beside Sections 3 and 4 Dowry Prohibition Act, 1961.
2. None appear for the petitioners either through video conferencing or physically present before the Court. Notice is served on second respondent, but remained unrepresented.
3. Heard learned HCGP for respondent No.1 - State who is physically present before the Court.
4. It is stated in the complaint that second respondent/defacto complainant got married with Accused No.1 on 05.01.2003 at Bangalore as per the customs prevailing in their society. Out of the wedlock, she gave birth to a male child namely Syed Farhan Hussain on 07.06.2006. It is further alleged that all the accused started harassing her, therefore, she filed a complaint against the accused persons for the offences as reflected in the FIR. Subsequent to registration of crime, the IO took up the case for investigation and laid the charge sheet in C.C.No.22392/2009 against all accused. But these petitioners who arraigned as Accused Nos.4 and 5 challenged the initiation of FIR against them before this :4: Court in Crl.P.No.15/2013 which later came to be dismissed.
5. Whereas learned HCGP has taken me through the role made by these petitioners relating to the case in Crime No.41/2009. It is alleged that these accused had also given harassment to the complainant/respondent No.2. The petitioners are none other than the brothers of accused No.1 as wherein the complainant got married with accused No.1. But these petitioners were never residing with the family of accused No.1 and second respondent. Accused Nos.4 and 6 are working abroad. It is further contended that the other accused in Crime No.41/2009 came to be acquitted for the offences as reflected in the FIR. In all accused Nos.1, 3, 5, 7, 8, 9, 10, 11 and 12 in C.C.No.22392/2009 came to be acquitted by the VI ACMM at Bengaluru vide order dated 26.10.2016. On this premise the petitioners are seeking for intervention of this Court under Section 482 of Cr.P.C. for quashing of entire criminal proceedings initiated against them in Crime No.41/2009. But split up charge sheet has :5: been laid against these petitioners in C.C.No.2960/2014 which is pending for facing of trial by these petitioners.
6. However, learned HCGP fairly submitting that the remaining accused in C.C.No.22392/2009 have been acquitted for the aforesaid offences. These accused were also given harassment along with other accused and also had extended life threat and so also there are certain ingredients relating to Sections 3 and 4 of D.P.Act. Mere because accused Nos.4 and 6 are permanent residents and working at abroad, it is not a ground for seeking to quashing of the criminal proceedings initiated against them. These are all the contentions as taken by learned HCGP for respondent - State and sought for dismissal of the petition.
7. It is relevant to refer to the complaint filed by complainant/respondent No.2 in Crime No.41/2009 alleging that these accused as well as other accused have given harassment to her by insisting to bring dowry. Therefore, the offences under Sections 3 and 4 of Dowry Prohibition Act and so also under Section 498A of IPC have been lugged against them. Subsequent to :6: registration of the crime against the accused, the IO had thoroughly investigated the case and laid the charge sheet against all accused in C.C.No.22392/2009. But these petitioners were arraigned as accused Nos.4 and 6, therefore, split up charge sheet was laid against these petitioners in C.C.No.2960/2014 arising out of Crime No.41/2009. As already stated that the remaining co- accused Nos.1, 3, 5, 7, 8, 9, 10, 11 and 12 in C.C.No.22392/2009 have been acquitted for the alleged offences by the trial Court vide judgment dated 26.10.2016. There is no dispute that these petitioners being arraigned as accused Nos.4 and 6 and so also, being the brothers of accused No.1 wherein respondent No.2/complainant got married with accused No.1 and subsequent to her marriage with him she got a male child. But thereafter there was some harassment extended by the accused persons to the complainant.
8. It is contended in the grounds urged in the petition that in C.C.No.22392/2009, the complainant and accused No.1 had compromised the matter and accordingly, accused Nos.1, 3, 5, 7, 8, 9, 10, 11 and 12 in :7: C.C.No.22392/2009 were acquitted as per judgment dated 26.10.2016. However, the ingredients of the offences alleged under the Indian Penal Code and so also, the Dowry Prohibition Act and recorded by the respondent police has been tested before the trial by placing the evidence. Despite of it a compromise has been arrived between accused No.1 and complainant. The case has been ended in acquittal of remaining accused in C.C.No.22392/2009. Therefore, in this petition it requires to be taken into consideration the totality of the circumstances of the case and so also, the acquittal judgment rendered by the trial Court in C.C.No.22392/2009 dated 26.10.2016. These accused as well as remaining accused in the aforesaid crime are in similar footing.
9. Section 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of :8: the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The Court should take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Code. However, such inherent powers are to be exercised judicially, judiciously, sparingly and cautiously.
10. In the instant case, the co-accused in crime No.41/2009 have already been acquitted by the trial Court in a full dressed trial. But accused Nos.4 and 6 are brothers of accused No.1 who were required to be facing of trial in a split up charge sheet. Even though the case against these accused have been proceeded with facing of trial for the aforesaid offences, it is nothing but formalities and closing of the case. Therefore, circumstances warrant this court to intervene by exercising the inherent power under Section 482 of Cr.P.C., if not, there shall be miscarriage of justice and also abuse of process of law. However, consciously the materials have been looked into and rescanning has been done. When once the co- accused have been acquitted, the same benefit shall be :9: accrued to these petitioners also. Then only constitutional protection under Article 21 of Constitution of India shall be enshrined, if not, certainly there shall be miscarriage of justice to accused Nos.4 and 6. Under the facts and circumstances, I am of the considered opinion that this petition deserves to be allowed and consequently, the petitioners/accused Nos.4 and 6 are to be absolved from the alleged offences in C.C.No.2960/2014 arising out of Crime No.41/2009. Accordingly, the following:
ORDER The criminal petition filed by the petitioners/accused Nos.4 and 6 under Section 482 of Cr.P.C. is hereby allowed. Consequently, the entire criminal proceedings in C.C.No.2960/2014 arising out of Crime No.41/2009, which is pending before the trial Court are hereby quashed.
In consequence of disposal of this petition by quashing the entire criminal proceedings initiated against Accused Nos.4 and 6 in C.C.No.2960/2014, it is hereby observed that if there is any Non-bailable warrant in force against them, the same shall not have any force for : 10 : execution in view of the present order. Ordered accordingly.
Sd/-
JUDGE DKB