Karnataka High Court
Humera Tahseena vs The State Of Karnataka And Ors on 25 January, 2022
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL PETITION NO.200917/2021
BETWEEN:
HUMERA TAHSEEN
W/O MD.ABDUL QADIR ANSARI,
AGE : 32 YEARS, OCC : DOCTOR,
R/O H.NO.4-601/73E , M.B NAGAR,
SHIVA MANDIR CHOWK,
NEW EXTENSION, KALABURAGI.
... PETITIONER
(BY SMT.NEEVA M.CHIMKOD, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH MAHILA PS KALABURAGI
REP. BY ADDL. SPP.,
HIGH COURT OF KARNATKA,
KALABURAGI BENCH
2. MD ABDUL QADIR ANSARI
S/O ABDUL KHALEEL,
AGE : 36 YEARS,
OCC : ASST PROFESSOR,
WORKING AS BLDE MEDICAL COLLEGE
DEPT OF ORTHOPEDICS, SOLAPUR ROAD,
VIJAYPUR.
2
3. KHALEEL ANSARI S/O ABDUL RAZAK,
AGE MAJOR, OCC : RETD. SERVANT,
4. KHADAR ANSARI S/O KHALEEL ANSARI,
AGE : MAJOR, OCC : ENGINEER,
5. IQBAL BEGUM W/O KHALEEL ANSARI,
AGE MAJOR, OCC : HOUSEHOLD,
ALL ARE R/O BEHIND K,N.Z FUNCTION HALL,
NEAR USMANEEYA MAJJIDA, KALABURAGI.
... RESPONDENTS
(SRI GURURAJ V.HASILKAR, HCGP R1;
SRI SANJAY KULKARNI, ADVOCATE FOR R2 TO R5)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH THE IMPUGNED
ORDER DATED 05.04.2019 PASSED BY THE III ADDL.
DISTRICT AND SESSIONS JUDGE AT KALABURAGI IN
CRL.R.P.NO.114/2018 AND CONFIRMING THE ORDER
DATED 28.09.2017 PASSED IN C.C.NO.217/2015 ON THE
FILE OF THE II ADDL. JMFC, KALABURGI.
This petition coming on for Admission this day, the
court made the following :
ORDER
Though the matter is listed for admission, with the consent of parties, it is taken up for final disposal.
2. Heard Smt.Neeva M.Chimkod learned counsel for the petitioner and Sri Sanjay Kulkarni learned counsel 3 for respondent Nos.2 to 5 and learned High Court Government Pleader for respondent No.1/State.
3. The present petition is filed under Section 482 of Cr.P.C with the following prayer :-
"To quash the impugned judgment/order dated 05.04.2019 passed by the III Addl. District and Sessiosn Judge at Kalaburagi in Cr.R.P.No.114/2018 and confirming the order dated 28.09.2017 passed inC.C.No.217/2015 on the file of the II Addl. JMFC, Kalaburagi."
4. Brief facts of the case are as under :-
The petitioner herein married respondent No.2 -
Sri Md.Abdul Quadir Ansari on 21.06.2009 as per the Muslim customs. Thereafter, petitioner stayed in the matrimonial house for a brief period and on 04.08.2009 because of the differences in the matrimonial relationship, the petitioner left the matrimonial house and joined the parents house.4
5. Subsequent thereto, on 08.10.2010 she has filed a petition under Section 125 of Cr.P.C seeking maintenance against the second respondent herein.
6. In the said petition, it has been contended that the second petitioner unilaterally obtained divorce by pronouncing triple Talaq on 15.08.2010.
7. When the petition filed under Section 125 of Cr.P.C was being contested by the second respondent herein, on 14.05.2011 the petitioner herein files a complaint before the jurisdictional police under Sections 498A, 323 and 506 read with Section 34 of IPC. In the complaint, it has been contended that on 21.06.2009 the marriage has taken place and on 12.05.2011 at about 9.30 p.m., the accused persons visited the house of the complainant and picked-up quarrel and abused the complainant and also gave her a life threat and therefore sought for action against respondent Nos.2 to 5.
8. It is also found from the complaint averments that there was a demand for `10.00 lakhs of cash as dowry 5 for the purpose of opening a clinic. In the complaint, it is also mentioned that on account of non-meeting of the said dowry amount, the complainant was not allowed to join the matrimonial home.
9. Jurisdictional police after registering the case in Crime No.54/2011 on 14.05.2011, investigated the matter in detail and ultimately filed a 'B' report.
10. The copy of the 'B' report was served on the complainant and she filed protest petition and the learned Magistrate after recording the sworn statement proceeded to go ahead with the case. The respondent Nos.2 to 5 herein challenged the said action in the Criminal Petition No.200430/2015. A Co-ordinate Bench of this court order dated 11.08.2015 dismissed the petition seeking quashing of further proceedings before the learned Magistrate. However, the learned Judge in the Coordinate Bench has also reserved the liberty for the respondent Nos.2 to 5 herein to file discharge application before the trial court. Taking advantage of the said observation, the respondent 6 Nos.2 to 5 herein filed an application seeking discharge. The said application was contested by the petitioner herein and learned trial Magistrate by order dated 28.09.2017, dismissed the application. Being aggrieved by the same, the respondent Nos.2 to 5 herein filed a revision petition before the III Addl. District and Sessions Judge, Kalaburagi in Crl.R.P. No.114/2018.
11. Learned Judge in the first appellate Court in the revisional court, secured the records and heard the parties in detail and by order dated 05.04.2019 allowed the revision petition consequently allowed the discharge application filed in Crime No.54/2011 of Mahila Police, Kalaburagi for the offences punishable under Sections 498A, 506 and 323 read with Section 34 of IPC.
12. Being aggrieved by the same, the petitioner is are before this court.
13. In the petition following grounds have been raised :-
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x That, the petitioner was lodged a complaint against respondent of No.2 to 5 before the Mahila PS Kalaburagi for offences punishable U/Sec. 323, 498 A, & 506 R/W 34 IPC which is register in crime No. 54/2011. The respondent No. 2 to 5 have managed the police and got filed B final report in respect of above crime but the petitioner filed protest petition and gave her evidence before the II Addl JMFC. And the Hon'ble Court has referred the case for mediation, dissipate of several efforts made by the petitioner the respondent No. 2 to 5 herein could not appear and has not given any response to the mediation.
x That, the learned judge of the Trail Court in Cr.R.P No.114/2018 have wrongly read the sections 239 & 245 of the criminal procedure code 1973. The alleged offences are under section 498A, 323, 504, 506, read with section 34 of IPC mainly section 498A absolutely requires recording the evidence of the parties hence trail is necessary at this stage section 239 & 2455 though are the independent provision will not help to the present case. And the learned the judge of the Trail Court at the earliest stage have opined the petitioner have lodged first information to harass the respondent No. 2 to 5. Hence the order in Cr.R.P No.114/2018 deserved to be quashed by the Hon'ble Court.
x It is submitted that on behalf of the petitioner that, the Court below in casual manner, has passed the order without putting the parties under the trail and without proper judicial application of proper mind since the order in Cr.R.P bad in law as its is contrite to the second position of law.
x In view of any angle the impugned order dated: 05-04-2019 deserves to be quashed and the Trail Court has the consider the 8 documents available on records and the allegation made in the first information and the evidences has to necessary to record.
x The petitioner have not approached any court of law for the same cause of action and the present impugned order that petitioners have not earlier approached this Hon'ble Court for the same cause of action or for similar relief accept by tiling the present petition.
14. Reiterating the above grounds, learned counsel for the petitioner Smt.Neeva M.Chimkod vehemently contended that the learned Judge in the revisional court has not properly appreciated the material on record and therefore sought for setting aside the order passed by the revisional court and restore the criminal proceedings.
15. Per contra, Sri Sanjay Kulkarni learned counsel appearing for respondent Nos.2 to 5 vehemently contended that the material placed by the petitioner on record was hardly sufficient to attract any one of the offences alleged against respondent Nos.2 to 5 and the same has been properly appreciated by the revisional court and rightly discharged the accused persons from the case and sought for dismissal of the petition. 9
16. Learned High Court Government Pleader for respondent No.1/State contended that the police after thorough investigation has found that the allegations made in the complaint were far from truth and therefore rightly filed 'B' report and therefore State is not perusing the matter further and it is only a formal party.
17. In view of the rival contentions this court perused the material evidence on record.
18. In the case on hand, the marriage between the petitioner and the second respondent took place on 21.06.2009 as per Muslim customs. However, on account of the acute differences in the matrimonial life, it is an admitted fact, that the petitioner herein left the matrimonial home on 04.08.2009.
19. In the meantime, second respondent having failed to re-establish the matrimonial relationship, approached the Wakf Board and applied for divorce which has been considered by the Wakf Board and passed an order of divorce dated 15.08.2010. The said order is not 10 challenged by the petitioner herein. Thereafter, she filed a petition under Section 125 of Cr.P.C seeking maintenance on 08.10.2010. The learned Magistrate after hearing the parties on 24.08.2011 allowed the petition and granted maintenance of `5,000/- per month as the monthly maintenance which is being paid by the second respondent herein. Subsequent thereto, an application came to be filed under Section 127 of Cr.P.C wherein a joint memo was filed stating that since the petitioner is now earning, she need bit ckaun maintenance any longer from the second respondent. When the matter stood thus, on 14.05.2011 a complaint came to be filed by the petitioner herein contending that the respondent Nos.2 to 5 have visited her and picked up the quarrel and abused her in filthy language and assaulted and therefore sought for action. The jurisdictional police i.e., Mahila Police, Kalaburagi registered a case against respondent Nos.2 to 5 herein in Crime No.54/2011 on 14.05.2011 for the offences punishable under Sections 323, 498A and 506 read with Section 34 of IPC. After thorough investigation, police 11 found that the complaint averments are incorrect and false and therefore filed a 'B' report.
20. Being not satisfied with the filing of 'B' report, the petitioner herein filed a protest petition and learned trial Magistrate after recording the sworn statement, proceeded to reject the 'B' report and proceeded with the trial. At that juncture, respondent Nos.2 to 5 approached this court in Crl.P.No.200430/2015 wherein this court dismissed the petition by passing the following order :-
"Petition is dismissed.
Notwithstanding the dismissal of the petition, the petitioners are at liberty to request the Court to discharge them, if they have sufficient materials to place on record at the time of conducting a trial before charge. Since the case has been registered otherwise than on a police report.
In such an event, the learned Judge to dispose of the matter at the earliest without undue delay."
21. Thereafter, the respondent Nos.2 to 5 filed application seeking discharge. The said application was 12 opposed by the petitioner herein. The II Addl. Civil Judge and JMFC after hearing the parties by order dated 28.09.2017 dismissed the application filed by respondent Nos.2 to 5 under Sections 239 and 245 of Cr.P.C seeking discharge of respondent nos.2 to 5.
22. Thereafter, respondent Nos.2 to 5 filed a revision petition before the II Addl. District and Sessions Judge, Kalaburagi in Crl.R.P.No.114/2018. The learned Judge in the revisional court, considered the rival contentions and placing reliance on the judgment of the Hon'ble Apex Court in the case of P.Vjayan vs. State of Kerala reported in AIR 2010 SC 663 allowed the revision petition.
23. The learned Judge in the revisional court has also considered the spirit of Sections 245 and 239 of Cr.P.C in exercising the power to discharge the accused in a given case.
24. In Para 21 of the impugned order it has been held as under :-
13
"21. At this stage, it is worth and useful to refer the following judgment :
AIR 010 SC 663 [P.Vijayan Vs. State of Kerala and another] the Hon'ble Apex held that : "That words not sufficient ground for proceedings against the accused" clearly show that judge is not a mere Post Officer to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to fact of case in order to determine by prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which exfacie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."14
25. This court meticulously considered the material evidence on record in the light of the grounds urged in the petition.
26. It is an admitted fact that the petitioner herein stayed in the matrimonial home only from 21.06.2009 to 04.08.2009. Thereafter, she came back and started living in the parental house and when she filed an application seeking grant of maintenance under Section 125 of Cr.P.C on 08.10.2010 there is no whisper that the respondent Nos.2 to 5 have harassed her and there was a demand of dowry. Only on 14.05.2011 she has chosen to file the complaint.
27. Police after thorough investigation, recorded a categorical finding that the allegations made in the complaint lodged by the petitioner herein on 14.05.2011 is false and no case is made out to proceed further in the case and filed 'B' report. No doubt after recording the sworn statement, learned trial Magistrate took cognizance and directed the petitioner to prove the case. 15
28. From the material available on record, when the petitioner herein has not filed ay complaint soon after leaving the matrimonial home about the alleged dowry harassment, she has chosen to file complaint only on 14.05.2011 exposes the hollowness in the complaint averments. The inordinate delay from 04.08.2009 to 14.05.2011 is not even explained and the learned trial Magistrate has not even taken that aspect of the matter into consideration while accepting the protest petition and proceeded with the trial of the case. The learned Magistrate also failed to take note of the said aspect of the mater when the application seeking discharge was filed by respondent Nos.2 to 5 herein. The same has been rightly re-appreciated by the learned Judge in the revisional court keeping in background the letter and spirit of the powers vested in the court under Sections 239 and 245 of Cr.P.C and rightly discharged respondent No.2 to 5 herein.
29. For the forgoing discussions and having regard to the non explanation of delay from 04.08.2009 to 16 14.05.2011 in filing the complaint about the alleged dowry harassment, this court is of the considered opinion that no case is made out by the petitioner to set aside the just order passed by the revisional court. Hence, the following ORDER Revision petition is dismissed.
Sd/-
JUDGE sn