IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4887/2018 BETWEEN:
AMITABH SINHA S/O LATE M.C. SINHA AGED ABOUT 41 YEARS R/AT NO.179, TIWARIPUR FIRST P.O. SEWANS TANNERY ADARSH NAGAR KANPUR – 208 010 U.P. – INDIA.
(BY SRI. PRITHVI RAJ B.N., ADVOCATE) AND:
1. STATE OF KARNATAKA BY ELECTRONIC CITY POLICE STATION BENGALURU CITY – 560 100 REP. BY S.P.P.
HIGH COURT OF KARNATAKA BANGALORE – 1.
2. SUNITA MOTWANI W/O AMITABH SINHA AGED ABOUT 52 YEARS R/AT NO.F-1801 AJMERA INFINITY SY. NO.89/1, NEELADRI ROAD, ELECTRONIC CITY PHASE-I, BENGALURU – 560 100.
(BY SRI. S.T. NAIK., HCGP FOR R-1;
... PETITIONER ... RESPONDENTS SMT. SUNITA MOTWANI - R-2, PARTY-IN-PERSON) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE CRIMINAL PROCEEDINGS IN C.C.NO.15552/2017, PENDING BEFORE IV ADDITIONAL METROPOLITAN MAGISTRATE FOR THE OFFENCE P/U/S 498A, 406, 420, 324 AND 506 OF IPC.
THIS PETITION HAVING BEEN HEARD AND RESERVED, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has sought for quashing of proceedings pending in C.C.15552/2017 on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru registered for the offences punishable under Section 498A, 406, 420, 324 & 506 IPC.
2. Facts in brief which has led to filing of this petition are as under:
Petitioner and second respondent got married on 15.04.2001 at Arya Samaj Mandir, New Delhi and a male child was born out of the said marriage on 12.02.2003. During 2007, petitioner, second respondent along with their son went to United States of America and on account of certain disputes having arisen between them, second respondent is said to have lodged a complaint, resulting in petitioner being arrested by police at USA and later on released. Second respondent is said to have returned back to India along with their son during September, 2007.
3. When this was the factual matrix, second respondent filed a petition under Sections 12, 18, 19, 20, 22 and 23 of the Protection Of Women From Domestic Violence Act, 2005 before the Metropolitan Magistrate, New Delhi registered as C.C.No.2580/2007 (Annexure-F).
4. On 08.09.2015, second respondent lodged a complaint before the first respondent alleging that after marriage, petitioner was harassing her both physically and mentally and he was not taking care of her and her son and till date, he is absconding from India and hiding in USA. On the basis of the said complaint, an FIR came to be registered in Crime No.651/2015 for the offence punishable under Section 498A IPC.
5. Petitioner on arriving in India on 04.04.2016 was arrested and brought to Bangalore and produced before jurisdictional Magistrate and later released on bail. On 11.04.2016 charge sheet came to be filed by first respondent against the petitioner for the offence punishable under Section 498A IPC in C.C.No.3357/2016.
6. There are several disputes pending between the parties and the present one is an off shoot of the matrimonial discord. Petitioner – husband as already noticed herein above, is seeking for quashing of the proceedings pending in C.C.No.15552/2017.
7. I have heard the arguments of Sri Prithviraj, learned Advocate appearing for petitioner, Sri S.T.Naik, learned HCGP for respondent-1 and Smt.Sunita Motwani, respondent-2 – party appearing in person.
8. It is the contention of Sri Prithviraj, learned Advocate appearing for petitioner that learned trial Judge ought not to have taken cognizance of the same as the same was barred under Section 468(1) Cr.P.C. as it was filed beyond the period of limitation prescribed under Section 468(2) Cr.P.C. He would also contend that trial Court ought to have considered whether it had territorial jurisdiction to take cognizance of the offence since according to the charge sheet material, the alleged incidents have taken place at Delhi, Guragon and USA. Hence, order taking cognizance is contrary to Sections 177 and 178 Cr.P.C. He would also contend that second respondent had given a false complaint against petitioner in USA and same came to be dismissed (Annexure-N) which would clearly indicate that allegation made in the complaint is frivolous and without any basis.
8.1 He would also submit that learned trial Judge erred in framing additional charges on 09.02.2018 for the offence punishable under Sections 406, 420, 323 & 506 IPC on the ground that petitioner intentionally defaulted in repayment of the loan obtained from LIC Housing Finance Limited and the cause of action for the said incident having arisen at Guragon/Delhi, there was no territorial nexus of the alleged offences at Bengaluru.
8.2 He would also elaborate his submission by contending that additional charge framed for offence punishable under Section 324 IPC is clearly barred by law since alleged incident took place on 20.06.2001 and charges are framed on 19.02.2019 and as such, entire proceedings are liable to be quashed.
9. Per contra, learned HCGP appearing for respondent-1 would support the case of prosecution and prays for dismissal of the petition.
10. Whereas, second respondent has filed objections to the petition and by reiterating the contentions and grounds urged thereunder, she would contend that there is no merit in the petition and she was staying in the matrimonial home at Gurgaon-India and petitioner is attempting to flee from justice and hence, she has prayed for dismissal of the petition.
11. Having heard the learned Advocate appearing for petitioner, learned HCGP appearing for respondent-1 and second respondent – party appearing in person, it requires to be noticed that there is no dispute with regard to relationship between the parties. The facts relating to marriage, birth of son, petitioner and second respondent staying for some time in USA and disputes having arisen between them as also several cases pending before jurisdictional Courts are also not in dispute. Hence, these aspects are not delved upon this petition as it would be repetition of facts and would burden the records.
12. In the instant case, the proceedings pending against petitioner which is based on the complaint lodged by second respondent has been sought for being quashed on the grounds already narrated herein above.
13. There cannot be any dispute to the proposition of law that powers under Section 482 Cr.P.C. are to be exercised sparingly and in exceptional cases, though the jurisdiction exists and is wide in its scope, it is a rule of practice to exercise such power only exceptional circumstances to prevent abuse of process of law. The power available under Section 482 Cr.P.C. can be exercised under three circumstances:
(a) to give effect to an order under the Code;
(b) to prevent abuse of the process of the Court;
(c) to otherwise secure the ends of justice.
Thus, there cannot be any inflexible rule which would govern the exercise of inherent jurisdiction. Said power has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. In other words, it has to be exercised ex debito justitiae – to do real and substantial justice. At the same time, inherent power would not be exercised to stifle a legitimate prosecution. In the process of scrutinizing the material placed by the prosecution, while considering the prayer for quashing, this Court would refrain from giving a primafacie opinion or decision, particularly where facts are incomplete or where the evidence has not been collected and no hard and fast rule can be laid in this regard. This doctrine of inherent power merely recognizes and preserves said power of this court. In the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo your wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” – when the law gives the person anything, it gives him that which it cannot exist.
14. Keeping these principles in mind, when the complaint in question is perused, it would disclose that second respondent has been claiming to have been harassed by the petitioner not only in India but also abroad, which is the sum and substance of the complaint.
15. As regards the issue relating to jurisdiction is concerned, it requires to be noticed that she has clearly stated in her complaint to the following effect:
■ 7 - After marriage xxx living of me. His bad temperament surfaced. He abused me physically, sexually and emotionally. Used me and my family only for money by fulfilling his dream of reaching USA.
■ 8 - After marriage xxx IT Job. In April, 2001 (immediately after marriage), he without any rhyme or reason he gave severe beatings to me, when the I insisted upon meeting his parents. It is stated that after about 45 days after marriage and he started and picked quarrel with me when I refused to ask my parents for any financial help.
■ 11 – That during last six and half years of marriage has been screaming, shouting and blackmailing that I should ask for money from my parents.
■ 13 – That due to apathetic and indifferent attitude of Mr.Amitabh Sinha, I was not interested in second child but Amitabh Sinha forced and compelled by physical hitting to bear second child.
■ 16 - That again xxx repeating cont. He insisted for buying furniture in the house and demanded that my parents should bear the expenses towards the same. It is stated that my old mother came down from Bombay and she got sofa with center table worth Rs.60,000/- from Gurgaon and left for Bombay.
■ 21 – Mr.Amitabh Sinha used to get violent on one pretext or the other. It is stated whenever, the I refused to take money from her parents, Mr.Amitabh Sinha used to abuse me physically and sexually and emotionally. On 23 Sept. 2007 Amitabh hit me with fists, blows and also with steel plate inflicting injuries on the face due to which I had to call USA police. Since my face was swollen and bleeding. Mr.Amitabh Sinha was arrested by police on 23.09.2007 and he was behind the bars for 3 days and finally released on bail on 1500 US $. It is stated that I was so scared and traumatized by the incident dt. 23.9.2007 that the I along with the minor child was constrained to leave Atlanta for India on 26.9.2007 and even the tickets were arranged by the parents of the I. It is stated that the inhuman and barbarous behaviour of Mr.Amitabh Sinha and threatened me of dire consequences to such an extent such my and my son were compelled to leave USA. He was a threat to me and my minor son. It is stated that I am traumatized by the haunting memories of those six and half years and is unable to forget the emotional and mental trauma caused by Mr.Amitabh Sinha.
16. It is no doubt true that no part of the cause of action arose in the city of Bengaluru. However, it requires to be noticed that in a complaint filed for the offence under Section 498A IPC, a liberal approach requires to be adopted and under similar circumstances, Hon’ble Apex Court in BHUDEB CHANDRA KARMAKAR vs STATE OF WEST BENGAL reported in (2001)9 SCC 226 has held that in order to meet the ends of justice, the complaint should be treated as one presented before appropriate Court. It has been held that :
“Heard learned counsel for the parties. xxx taken place at Calcutta. It however, appears to us that it has been specifically stated by the complainant that she is in a pitiable financial position and her brother being poor cannot support her. In such circumstances, even if the complaint had been lodged in the appropriate court in Calcutta, the respondent could have made an application for transfer of the said case to Bankura which is her usual place of residence so that she can effectively pursue the case on the basis of the complaint lodged by her. In the facts of the case, it appears to us that such application for transfer, if made, deserves to be allowed. Taking a pragmatic view of the matter, we feel that the complaint should not be dismissed on the score of jurisdictional impropriety. In the special facts of the case, we direct that it would be treated as if the complaint was presented to the appropriate court in Calcutta and the same has been transferred in the Court of Chief Judicial Magistrate, Bankura. Such direction is given for ends of justice and to avoid dismissal of the complaint filed in Bankura for want of jurisdiction and filing another complaint in Calcutta and then to get the same transferred to Bankura for the reasons indicated.”
17. In the light of above authoritative pronouncement of Hon’ble Apex Court, this Court is not inclined to accept the contention raised by learned Advocate appearing for petitioner that the learned Magistrate at Bengaluru not having jurisdiction to take cognizance of the offence alleged or proceedings being continued at Bengaluru. Said contention stands rejected.
18. Learned Advocate appearing for petitioner has contended that complaint in question which has been lodged by the second respondent before first respondent on 08.09.2015 is barred by limitation on the ground the alleged acts of cruelty ceased to exist from 23.09.2007 (last day when the petitioner and second respondent stayed together) and therefore, the complaint after 8 years is barred by limitation as prescribed under Section 468A Cr.P.C. requires to b e considered for the purposes of rejection, inasmuch as, Hon’ble Apex Court somewhat under similar circumstances in the case of VANKA RADHAMANOHARI vs VANKA VENKATA REDDY reported in (1993)3 SCC 4 has held that matrimonial offences relating to cruelty of husband on wife are in the nature of continuing offences to which bar under Section 468A Cr.P.C. cannot be applied in the interest of justice. It was held:
“7. It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case of State of Punjab v. Sarwan Singh . But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interest of justice".
8. In the case of Bhagirath Kanoria v. State of M.P., this Court even after having held that non-payment of the employer's contribution to the Provident Fund before the due date, was a continuing offence, and as such the period of limitation prescribed by Section 468 was not applicable, still referred to Section 473 of the Code. In respect of Section 473 it was said:
“...That section is in the nature of an overriding provision according to which, notwithstanding anything contained in the provisions of Chapter XXXVI of the Code, any Court may take cognizance of an offence after the expiry of the period of limitation if, inter alia, it is satisfied that it is necessary to do so in the interest of justice. The hair-splitting argument as to whether the offence alleged against the appellants is of a continuing or non-continuing nature, could have been averted by holding that, considering the object and purpose of the Act, the learned Magistrate ought to take cognizance of the offence after the expiry of the period of limitation, if any such period is applicable, because the interest of justice so requires. We believe that in cases of this nature, Courts which are confronted with provisions which lay down a rule of limitation governing prosecutions, will give due weight and consideration to the provisions contained in Section 473 of the Code.”
9. Coming to the facts of the present case, the appellant is admittedly the wife of the respondent. She filed the petition of complaint in the year 1990, alleging that she was married to the respondent, who subjected her to cruelty, details whereof were mentioned in the complaint aforesaid. She further stated that on May 4, 1990 he has married again, deserting the appellant. In view of the allegation regarding second marriage, an offence under Section 494 of the Penal Code was also disclosed which is punishable by imprisonment for a term which may extend to seven years. The High Court taking into consideration Section 468, has come to the conclusion that the complaint in respect of the offence under Section 498A which prescribes imprisonment for a term up to three years, was barred by time. Nothing has been said by the High Court in respect of the offence under Section 494 of the Penal Code, to which Section 468 of the Code is not applicable, the punishment being for a term extending up to seven years. Even in respect of allegation regarding an offence under Section 489A of the Penal code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegation that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interest of justice to take cognizance even of the offence under Section 498A ignoring the bar of Section 468.”
19. Even if there has been delay, if same stands explained, such delay would recede to the background and the magistrate would be empowered to examine as to whether such delay exists and if so, same having been explained or not. Hence, this Court would refrain from examining the claim of delay on merits and it is left open for the learned Magistrate to examine the same.
20. In the instant case, the jurisdictional Court has framed charge for the offences punishable under Sections 406, 498A, 420, 324 and 506 IPC. In the teeth of offence punishable under Section 420 IPC for seven years, petitioner cannot be heard to contend that Section 468 Cr.P.C. is attracted and contention raised in that regard stands rejected.
21. The plea for quashing of proceedings on the basis of the probable defence that the accused may set up would not be in the domain of consideration by this Court. It would be apt and appropriate for the jurisdictional Magistrate to examine the same after prosecution tenders evidence and as such, proceedings before the trial Court cannot be stifled even before evidence could be recorded.
For the reasons aforestated, I proceed to pass the following:
ORDER (i) Criminal petition is dismissed.
(ii) It is made clear that no opinion is expressed on merits of the case.
SD/-
JUDGE *sp