Karnataka High Court
Mustaq Ahmed Khan vs The State Of Karnataka on 25 November, 2014
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF NOVEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N.VENUGOPALA GOWDA
CRIMINAL PETITION NO.2457/2010
BETWEEN:
1. MUSTAQ AHMED KHAN
S/O BUDAS KHAN PATHAN
AGED 35 YEARS
R/AT S.M.I.D.B. SHIRKE APARTMENTS
323/21, 5TH PHASE, NEW TOWN
YELAHANKA
BANGALORE - 560 064.
2. RAZIA BEGUM
W/O BUDAS KHAN PATHAN
AGED 62 YEARS
OCC: HOUSEHOLD
R/O 110/2, HEGGERI COLONY
HUBLI.
3. BUDAS KHAN PATHAN
S/O ABBAS KHAN
AGED 73 YEARS
OCC: NIL
R/O 110/2, HEGGERI COLONY
HUBLI.
4. NILOUFER
AGED MAJOR
W/O SHEIK AHMED
OCC: HOUSEHOLD WORK
R/O 386/25, SMIGB, NEW TOWN
YEHALAHANKA NEW TOWN
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BANGALORE.
... PETITIONERS
(BY SRI P.M. NAWAZ, FOR
SRI C.H. JADHAV, ADVS.)
AND:
1. THE STATE OF KARNATAKA
BY WOMEN POLICE STATION
DEVARAJ CIRCLE, MYSORE
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001.
2. SMT. AYESHA SULTANA
@ NAZIA TABASSUM
W/O MUSTAQ AHMED KHAN
D/O S.V.M.SHA KHADRI
AGED 26 YEARS
R/AT D.NO.23/2, 'DEVI CHARAN'
LALITHA MAHAL MAIN ROAD
SIDDARTHA LAYOUT
MYSORE - 560 011.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP FOR R1;
SRI C.R. ABDUL RASHEED, ADV. FOR R2)
THIS CRL.PETITION IS FILED UNDER SECTION 482
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 04.03.2009
PASSED IN C.C.NO.41/2009 BY THE LEARNED IV ADDITIONAL
CIVIL JUDGE (SR.DN.) & JMFC, MYSORE, THEREBY TAKING
COGNIZANCE AGAINST THE PETITIONERS FOR THE OFFENCES
P/U/Ss. 498-A, 506 R/W S.34 OF IPC AND Ss.3 AND 4 OF
DOWRY PROHIBITION ACT AND DIRECT TO ISSUE PROCESS
AGAINST THEM AND QUASH THE ENTIRE PROCEEDINGS
PENDING THEREON.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Marriage of petitioner No.1 with respondent No.2 was solemnized on 24.11.2005. Petitioner Nos.2 and 3 are the parents of petitioner No.1 and petitioner No.4 is the sister of petitioner No.1 and daughter of petitioner Nos.2 and 3. On the basis of a complaint lodged by respondent No.2, on 22.10.2008, respondent No.1 registered a case in Crime No.153/2008 against the petitioners for the offences punishable under Sections 498(A), 506 r/w 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act. The learned Magistrate having taken cognizance and ordered issuing of the summons, this petition was filed to set aside the order dated 04.03.2009 passed in C.C.No.41/2009 by the IV Additional Civil Judge (Sr. Dn.) and JMFC, Mysore i.e., taking cognizance against the petitioners for the offences under the aforesaid sections and in directing issuance of process against the petitioners and consequently to quash the entire proceedings of the said case.
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2. By an order dated 14.07.2010, the petition as against petitioner No.1 - accused No.1 was dismissed as not pressed. This petition having been confined for consideration of the cases of petitioner Nos.2 to 4, notice was ordered to the respondents.
3. Sri P.M. Nawaz, learned advocate submitted that petitioner Nos.2 and 3/accused Nos.2 and 3 were residing in separate house at Hubli and that petitioner No.4/accused No.4, being married was residing with her husband and they never interfered with the affairs of the complainant and petitioner No.1/accused No.1. He submitted that the complaint against petitioner Nos.2 to 4 being false and having been foisted with ulterior motives, the cognizance taken, resulting in issuance of summons and continuation of the proceedings being gross abuse of process of Court is liable to be quashed.
4. Learned HCGP, on the other hand, by making reference to the complaint dated 22.10.2008 of the respondent, submitted that there being no abuse of 5 process of Court and since trial of the case is called for, this petition being devoid of merit may be dismissed.
5. Having heard the learned advocates and perused the material available on record, including the complaint, the point for consideration is, whether in the light of the complaint dated 22.10.2008, petitioner Nos.2 to 4 have made out any case to quash the proceedings in C.C.No.41/2009 on the file of the IV Additional Civil Judge (Sr. Dn.) and JMFC, Mysore, for the offences punishable under Sections 498(A), 506 r/w Sections 3 and 4 of DP Act?
6. Exercise of power under Section 482 Cr.P.C. is to prevent abuse of process of Court and to secure ends of justice. The Court has to be circumspect while exercising the jurisdiction under Section 482 Cr.P.C. Depending upon the facts and circumstances of the case, the exercise is required to be undertaken.
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7. In Zandu Pharmaceuticals Works Ltd. vs. Mohd. Sharaful Haque, (2005) 1 SCC 122, Apex Court has held as follows:
"The power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution."
8. From a catena of decisions of the Apex Court, it has become clear that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations, as made in the complaint, prima facie establish the case and in that process, the Court has to see whether the continuation of the complaint amounts to abuse of process of law and results in miscarriage of justice or by quashing the proceeding would otherwise serve the ends of justice. Thus the Court has to only look at the uncontroverted allegation in the complaint, whether prima facie discloses an offence or not, inasmuch as it is for the trial Court to go into disputed questions of fact, after trial. 7
9. In the instant case, the complainant is the wife of accused No.1 and accused Nos.2 and 3 are the mother- in-law and father-in-law of the complainant and accused No.4 is the sister of accused No.1. The marriage of the complainant with accused No.1 was performed on 24.11.2005. It has been alleged in the complaint that the accused demanded at the time of marriage, dowry of `4 lakhs from her parents and that `2,25,000/- was given in cash as dowry and `40,000/- towards the clothing of the bridegroom. According to the complainant, after the marriage, she and her husband/accused No.1 lived at Bangalore and that she gave birth to a female child. The complainant has alleged that accused No.1 was not happy due to the birth of the female child. In the complaint, it has been further alleged that accused No.1 threatened that her parents have not given a site and that he wanted a male child and that he would kill her as well as the child. The complaint contains allegations with regard to the harassment caused and demands made by accused Nos.2 to 4.
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10. A reading of the complaint makes it clear that there are allegations against petitioner Nos.2 to 4, which can be the subject matter of trial, since this petition seeking quashing was filed when the prosecution was at the initial stage. The allegations, as has been made in the complaint, show prima facie case against petitioner Nos.2 to 4. There being disputed questions of fact, require trial. In the circumstances, it is not appropriate to exercise the power under Section 482 Cr.P.C. and allow this petition in respect of petitioner Nos.2 to 4.
In the result, petition is dismissed by making it clear that the trial Court shall decide the case, uninfluenced by any of the observations made herein, being limited to find out whether the uncontroverted allegations, as made in the complaint, prima facie establish the case.
Ordered accordingly.
Sd/-
JUDGE ca