Karnataka High Court
Mr Harish @ Harish Kumar Jain vs State Of Karnataka on 23 August, 2022
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION No.8698 OF 2019
BETWEEN:
1. MR. HARISH @ HARISH KUMAR JAIN,
SON OF SRI. DALICHAND D JAIN,
AGED ABOUT 41 YEARS,
RESIDING AT NO.13/1,
5TH CROSS, NEAR SUBRAMANYA TEMPLE,
KUMARAPARK WEST, SHESHADRIPURAM,
BENGALURU - 560 020.
2. MR.MUKESH SAKARIA,
SON OF SRI DALICHAND D JAIN,
AGED ABOUT 40 YEARS,
NO.17, 9TH CROSS,
BEHIND BDA HEAD OFFICE,
KUMARA PARK WEST,
SHESHADRIPURAM,
BENGALURU - 560 020.
3. MRS. RITA SAKARIA,
W/O SANJAY SAKARIA,
AGED ABOUT 41 YEARS,
RESIDING AT NO.42,
SERPENTINE ROAD,
KUMARA PARK WEST,
BANGALORE - 560 020.
2
4. MRS. CHETANA H JAIN,
WIFE OF HARISH @ HARISH KUMAR D JAIN,
AGED ABOUT 35 YEARS,
RESIDING AT NO.13/1,
5TH CROSS, NEAR SUBRAMANYA TEMPLE,
KUMAR PARK WEST,
SHESHADRIPURAM,
BENGALURU - 560 020.
5. SMT.KAVITA,
WIFE OF SRI. HIRLAL BHADUR,
AGED ABOUT 29 YEARS,
C/O NO.13/1, 5TH CROSS,
NEAR SUBRAMANYA TEMPLE,
KUMARA PARK WEST,
SHESHADRIPURAM,
BENGALURU - 560 020.
...PETITIONERS
(BY SRI.SANTOSH S GOGI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
SESHADRIPURAM P.S.,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
AMBEDKAR VEEDHI,
BANGALORE.
2. MR.SANTHOSH,
D/O SRI. CHELLARAM,
AGED ABOUT 39 YEARS,
FLAT NO. 103, 1ST FLOOR,
MOTHI APARTMENT,
3
KUMARAPARK EAST,
BENGALURU - 560 0.
...RESPONDENTS
(BY SRI.SHANKAR H.S., HCGP FOR R1;
SMT.SUMITHRA CHOUDARY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C. PRAYING TO QUASH THE FIR
DATED 19.01.2019 AND CHARGE SHEET DATED
22.03.2019 FILED BY THE FIRST RESPONDENT BEFORE
THE LVI A.C.M.M., AT BENGALURU IN
C.C.NO.8902/2019 ARISING OUT OF CR.NO.5/2019
AND ORDER DATED 09.04.2019 TAKING OF
COGNIZANCE BY THE LVI A.C.M.M., AT BENGALURU
(ANNEXURE A, B, C AND D)
THIS CRIMINAL PETITION COMING ON FOR
DICTATING ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The police after investigation submitted a charge sheet for the offences punishable under Sections 342, 354, 323, 504 and 506 read with Section 34 of IPC.
2. The summary of the charge sheet is as follows:
The C.W-1 was married to Rakesh and two children were born in the said wedlock and due to 4 incompatibility they were staying separately and thereafter, Dr.Sanjay Sakaria came in contact with her and promised to look after her children. The marriage of C.W1 was dissolved and thereafter her marriage was solemnized with Dr.Sanjay Sakari in Gangamma Temple at Banasawadi as per Hindu rites and customs. A daughter by name Eve Sakaria is born in the said union. Her husband Dr.Sanjay Sakaria has provided C.W-1 and his daughter accommodation ina flat at Moti Apartment Complex and were leading cordial marital life in the said Apartment. Since her husband stopped visiting her and the children and also stopped providing financial assistance and when the C.W-1 on 14.01.2019 went to the house of the petitioner -
accused to enquire about her husband her, the petitioners-accused stated that he is not at home and asked her to come to the house next day. Accordingly, C.W-1 along with her son C.W-2 and her daughter 5 visited the house of the accused Dr.Sanjay on 15.01.2019 at about 7 pm and when she went inside the house and when she was speaking to her parents in law , at that point of time , the petitioners-accused abused C.W.-1 in a filthy language and assaulted her with their hands and accused No.1 pulled her clothes and dragged her by pulling her hand and locked her in the bedroom. Thereafter, the petitioners-accused assaulted her child with their hands and also gave life threats.
3. Learned Magistrate after taking cognizance of the aforesaid offences issued summons to the petitioners-accused. Hence this petition.
4. Learned counsel for the petitioners submits that respondent No.2 after forcibly entering the house of the accused picked up a quarrel and she is the aggressor and responsible for the alleged untoward 6 incident and the FIR was lodged with an ulterior motive to wreak vengeance and with revengeful intent. There are contradictions in the statement of the de facto complainant under Sections 161 and 164 of the Cr.PC. The dispute between the parties arises out of the alleged marital relationship of CW1 and Dr.Sanjay Sakaria, however, given a criminal texture. There is no specific allegation against the petitioners - accused as to how and in what manner each of the accused abused CW1 in filthy language and also outraged her modesty, except omnibus and general allegations.
5. On the other hand learned counsel for the second respondent submits the police after investigation have rightly submitted the charge sheet and the charge sheet material including the wound certificates coupled with the statements of the complainant - witnesses prima facie discloses the commission of offences and the various contentions 7 urged by the Petitioners can be considered only after full fledged trial and this court cannot hold a mini trial to ascertain the veracity of the allegations. In support, reliance is placed on the decisions of the Hon'ble Supreme Court in the cases of Neeharika Infrastructure Private Limited v State of Maharashtra (AIR 2021 SC 1918) and Skoda Auto Volkswagen India Pvt. Ltd v The State of Uttar Pradesh ( AIR 2021 SC 931).
6. Learned AGA appearing for the respondent- State reiterates the submission made by the learned counsel for the second respondent and sought for dismissal of the petition.
7. I have examined the submissions made by the learned counsels for the parties.
8. The alleged incident took place between 7.00 p.m to 1.30 a.m., from 15.1.2019 to 16.1.2019. It is alleged that the police came at about 1.30 a.m. on 8 16.1.2019 and rescued the 2nd respondent and her child from the accused who had wrongfully confined her. Thereafter, the 2nd respondent and her daughter have allegedly taken treatment at St.Martha's Hospital, Bengaluru at 2.40 a.m. and after receiving the treatment, they came home for taking rest and after consulting with the relatives, the FIR was lodged late on 19.1.2019 at about 4.30 p.m. ie. after three days from the date of the alleged incident.
9. The perusal of wound certificate indicates that the injuries alleged to have been sustained by the 2nd respondent and her child are simple in nature. There is no specific allegation as to how and in what manner each of the accused assaulted with their hands except omnibus and general allegations. In the FIR, it is alleged that the petitioner - accused No.1 forcibly pulled her and her child and locked them in a bedroom. In the statement recorded under Section 164 of Cr.PC, 9 it is alleged that when the accused tried to kill her, at that point of time, to escape, she ran and hid in a bathroom and thereafter called the police from her mobile phone and after she was rescued by the police, she went to the police station and thereafter went to receive medical treatment. There are contradictions in the allegations made in the statements recorded under Sections 161 and 164 of Cr.PC, which clearly implies that the alleged incident has taken place on account of marital discord between the 2nd respondent and her husband during the subsistence of his first marriage with accused No.3 The incident is said to have taken place when CW1 went to the house of the accused to enquire about her husband which ended in a quarrel between CW1 and the brothers, first wife and sister in laws of her husband and also the maid, and in the resultant scuffle, the petitioners neither intended nor knew that their acts were likely to cause any simple 10 injury to the 2nd respondent and her child. The 2nd respondent forcibly entered the house belonging to the petitioners to enquire about her husband. The nature of injuries alleged to have been sustained can be termed as simple harm which is not punishable u/s 95 of Cr.P.C.
10. The essential ingredient to constitute the commission of an offence punishable under section 354 of IPC is that, a man should have used criminal force or assault on any woman with an intention to outrage or knowing it to be likely that he will thereby outrage her modesty. In the instant case, the allegation of pulling the complainant's clothes is only against the Accused No.1-petitioner No.1. Charge sheet material does not disclose that there was an intentional attempt to outrage the modesty of complainant by pulling her clothes by accused No.1. Except general and omnibus allegations that the accused no.1 pulled her clothes, 11 there is no specific allegation as to how and in what manner the accused no.1 intentionally outraged the modesty of complainant. The act of accused no.1 in the moment of heat of a quarrel does not amount to intentionally outraging the modesty of the complainant. Hence, the filing of the charge sheet filed for the offence punishable under section 354 of IPC against the petitioners is not good in law.
11. Perusal of the FIR and the statement of CW1 recorded under section 164 of the code discloses that the complainant has changed her version of statements. In her statement under Section 164 of Cr.PC, she alleges that she ran into the bathroom and hid , and in the FIR she has stated that she was locked in the room by the accused. The complainant specifically mentioned the injuries sustained by her in the Section 164 statement which is absent in the FIR which clearly shows that there are improvements , 12 since the FIR was lodged after three days from the date of incident and CW1 had all the time to recollect and narrate the incident.
12. The complainant had lodged another FIR in Crime No. 0044/2019 before the police making the same allegations and in addition to it, she alleged that the husband of Complainant has suppressed the fact of his earlier marriage and divorce with his first wife. This factual statement again runs contrary to the statements made by the complainant in the present FIR and the statement under section 164 wherein she has stated that she was introduced to the accused herein by her husband. The police after investigation submitted the charge sheet for the offences punishable u/ss 498A, 420 and 506 IPC only against Dr.Sanjay Sakaria and dropped the present accused from the charge sheet as there was no material.
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13. The complaints lodged by the Petitioner No.2 and Petitioner No.4 on 15.06.2019 and 16.01.2019 respectively at Annexures- E & F to take action against the CW1 for trespassing have not been registered by the Police and the parties have filed case and counter case against each other.
14. Though the criminal proceedings can be quashed in the rarest of cases , this court in exercise of its inherent jurisdiction deem it fit to quash the impugned proceedings , when the material on record clearly disclose that the dispute between the parties arises out of marital discord between the CW1 and Dr.Sanjay Sakaria who is alleged to have married CW1 during subsistence of his marriage with the Accused No.3 and the act of CW1 in forcibly entering the house of petitioners - accused and picking up quarrel. 14
15. For the foregoing discussion, the continuation of criminal proceedings against the accused will be an abuse of process of law, since the probability of their conviction is remote and bleak. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) C.C.No.8902 / 2019 pending on the file of LVI Additional Chief Metropolitan Magistrate, Bengaluru is hereby quashed.
Sd/-
JUDGE RKA