IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.706 OF 2013 BETWEEN:
SMT KUMUDA GIRISH, KAS W/O B SHARAT, IAS, AGED ABOUT 35 YEARS R/AT NO.210, 6TH C CROSS ’K’ BLOCK RAMAKRISHNA NAGARA MYSORE-570001. ... PETITIONER (BY SRI: A H BHAGAVAN, ADVOCATE) AND 1. B SHARATH, IAS S/O B BHEEMAIAH AGED ABOUT 35 YEARS R/AT NO. 2871 PAMPAPATHI ROAD 1ST CROSS, 1ST MAIN SARASWATHIPURAM MYSORE-570001.
2. STATE OF KARNATAKA BY DEVARAJA POLICE MYSORE-570001. ... RESPONDENTS (BY SRI: RAGHAVENDRA K. ADV., FOR R1 –ABSENT I.S.PRAMOD CHANDRA, SPP-II FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 16.01.2013 PASSED BY THE VI ADDL. S.J., MYSORE IN CR. NO.70/2011 AND QUASH THE SAID PROCEEDINGS.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the order dated 16.01.2013 passed by the VI Addl. Sessions Judge, Mysuru, whereby the learned Sessions Judge has taken cognizance of the offences punishable under sections 355, 504, 506 of Indian Penal Code and section 3(1) (x) of The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989(for short ‘SC/ST Act’).
Heard the learned counsel for the petitioner and learned SPP-II for respondent No.2-State.
2. Learned counsel for respondent No.1 is absent. Perused the records.
3. Respondent No.1 initiated criminal action against the petitioner herein by lodging a complaint on 21.03.2011 in respect of the incident which is alleged to have taken place on 24.02.2011. The complainant is the husband of the petitioner. Their marriage was performed on 28.08.2003. It was a love marriage. They belonged to different castes. In the wedlock, they have a child, now aged about 11 years. The parties had presented an application for mutual divorce on 06.07.2011 and the same was withdrawn later and the complainant/respondent filed a divorce petition under Section 13(B) of Hindu Marriage Act. The matrimonial Court allowed the petition by grant of divorce. The matter is now pending in appeal in MFA No.44005/2017.
4. Instant proceedings have arisen on the account of complaint lodged by the respondent, wherein it is alleged that on 24.02.2011, when he was in his office at about 11.00 a.m., alongwith his friends Mr. S. Marko and H.R.V.P. Naidu, the petitioner started abusing him verbally with foul and meanest language as ‘son of a prostitute’, ‘son of a bitch’. ‘bastard’, ‘cheap fellow’ She also started insulting him referring to his caste as ‘you Bhovi fellow’. ‘Holeya’ and so on; she further abused him by calling him ‘you Bhovi’, ‘Bhovi Sule magane’, ‘ Holeya sule magane’; and further abused him saying that ‘you the scheduled caste people are shameless people and are a burden on the society.
5. Upon investigation, police submitted a ‘B’ report. The respondent filed a protest petition and let in his sworn statement and examined three witnesses on his behalf. On considering the said material, by order dated 16.01.2013, the learned Sessions Judge, Mysore took cognizance of the offences under Sections 355, 504 and 506 of Indian Penal Code and Section 3(1) (x) of SC/ST Act and issued summons to the petitioner.
6. Learned counsel for the petitioner would submit that the allegations made against the petitioner on the face of it are absurd. The parties were married for eight years. They had a child in the wedlock. Their marriage was on rocks and the matrimonial proceedings were initiated for dissolution of marriage. Under the said circumstances, the allegations made against the petitioner on the face of it appear to have been intended to foist false case against the petitioner. The facts averred in the complaint do not attract any of the offences alleged in the FIR. Without considering any of these aspects, the learned Sessions Judge has mechanically taken cognizance of the alleged offences and hence the impugned proceedings are liable to be quashed.
7. Learned SPP-II appearing for respondent No.2-State submits that for want of evidence, the jurisdictional police have submitted ‘B’ report and therefore respondent No.2 State has nothing to say in the matter.
The learned counsel for respondent No.1 is absent.
8. From the reading of the complaint, it is evident that the relationship between the parties is strained beyond repair. In that background, if the allegations made against the petitioner are considered, the thrust of the allegation is that the petitioner abused the complainant calling out his caste. It is not in dispute that the petitioner and respondent were aware of the caste of each other. Their marriage was a love marriage. If petitioner had any aversion to the caste of the respondent and intended to belittle or insult the complainant solely on account of his caste, in all probability, she would not have married the complainant. After marriage, she has also become a member of the family of the respondent. Therefore, abuse hurled at the respondent would amount to self abuse of the petitioner herself. Therefore, the petitioner and respondent being the members of the same family, the provisions of the SC/ST Act, do not get attracted.
9. Be that as it may, according to the complainant, the alleged incident had taken place in the office at about 11.00 a.m. on 24.02.2011. Though the complainant had stated that the incident had taken place in the presence of two witnesses, who have also deposed on oath regarding their presence in the office of the respondent on the date of the incident, the unimpeachable document produced by the petitioner disclose that on 24.02.2011, in the morning at about 10.30 a.m., the petitioner herein was engaged in a meeting in the office of Deputy Director of Food and Civil Supplies, Mandya. The Minutes of the proceedings drawn up on the said date are produced alongwith the petition. The said proceedings are signed by the petitioner. The respondent has not disputed the said document. He has not filed statement of objections disputing the veracity of the said document. This document on the face of it indicate that on the relevant date, the petitioner was not present in Mysore as contended in the complaint. This document has exposed the falsity of the allegations. That part, the allegations made in the complaint, even if accepted as true, they do not make out the ingredients of offence punishable under section 3(1) (x) of SC/ST Act. In order to constitute an offence under the provision of SC/ST Act, 1989, the offence should have been committed in public view. In the instant case, though it is stated that the incident had taken place at a public place, according to the complainant, the said incident had taken place in the chambers. There are no allegations that any public were present during the occurrence or that the said place was within the view of public at the relevant time. Therefore, the charge under Section 3(1) (x) of SC/ST Act, 1989 cannot stand.
10. Insofar as other charges are concerned, when the very occurrence itself is doubtful, none of these allegations could pave way for the prosecution of the petitioner. Therefore, taking into account all the above facts and circumstances, in my view, the prosecution of the petitioner for the above offences is vexatious, malafide and a sheer abuse of process of Court. The learned Sessions Judge though has referred to the factum of recording of the sworn statement of the complainant and the witnesses, he has not adverted his mind to the surrounding facts and circumstances which render the incident unbelievable. The learned Sessions Judge has also not taken into consideration, whether the said allegations prima-facie constitute the ingredients of the offences alleged against the petitioner. In that view of the matter, the order of taking cognizance by the learned Sessions Judge dated 16.01.2013 cannot be sustained.
Consequently, the petition is allowed. The proceedings initiated against the petitioner for the above offences under Sections 355, 504 and 506 of Indian Penal Code and Section 3(1) (x) of The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989, pending on the file of VI Addl. Sessions Judge, Mysore in Cr.No.70/2011 is hereby quashed.
Sd/- JUDGE *mn/-