IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.8554 OF 2016 BETWEEN:
Sri K Raghunatha Shetty Aged 65 years S/o Late Thyammpanna Shetty R/at Shreyanka Nilaya Door No. 2-71-6, Adu Maroli Kulashekara Post Mangalore- 575 005 …Petitioner (By Sri. M.K.Venkataramana, Advocate) AND:
Smt.Shailaja P Aged 63 years W/o K.Raghunatha Shetty R/o Shreyanka Nilaya Door No.2-71-6, Adu Maroli Kulashekara Post Mangalore-575 005 ..Respondent (By Sri. P.P.Hegde, Adv.) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the proceedings in C.C.No.3386/2015 on the file of JMFC-III Court, Mangalore, for the alleged offence P/U/S 31 of protection of women from Domestic Violence Act.
This Criminal petition coming on for admission this day, the Court made the following:
O R D E R Petitioner is aggrieved by the order passed by the learned JMFC-II, Mangalore, directing registration of a criminal case against the petitioner herein for the offence punishable under Section 31 of the Protection of Women from Domestic Violence Act, 2005 ( hereinafter referred to as ‘the Act’ for short).
2. The respondent obtained a protection order under Section 23(2) of the Act on 03.01.2015, directing the petitioner herein, (i) not to commit any domestic violence against the respondent (ii) restraining him from alienating or encumbering in any manner the property bearing Sy.No.1P18/P2 of 0.07 cents.
3. In the private complaint filed by the respondent, it is alleged that on 01.10.2015, she found the petitioner staying with a maid and, when she questioned them, the maid abused her in a filthy language. On 06.10.2015 at about 9.30 a.m., when the respondent was in the kitchen, the petitioner herein took up the said issue and asked the respondent as to why she quarreled with the woman/maid and at that time, the petitioner herein abused her and slapped her on her cheek and asked her to go out of the house.
4. The sworn statement of the respondent was recorded and considering the said sworn statement, the learned Magistrate having found that prima-facie material to proceed against the petitioner, directed registration of the case against the petitioner under Section 31 of the Act.
5. Learned counsel for the petitioner submits that as per the respondent’s own version, the dispute was settled in the police station at the instance of an Advocate, but no material was produced before the Court in this regard. He further submits that the statements made in the sworn statement do not make out an offence under Section 31 of the Act and therefore, the direction issued by the learned Magistrate being contrary to the material on record is liable to be quashed.
6. Learned counsel for the Respondent however disputes the above submission and points out that in her sworn statement, the respondent has narrated the specific instances of domestic violence meted out to her by the petitioner. Since the petitioner was under the protection order, the facts narrated in the sworn statement clearly amount to violation of the said protection order and therefore no fault could be found in the impugned order passed by the learned Magistrate.
7. Considered the submissions made by both the parties and perused the records.
8. It is not in dispute that a protection order was passed under Section 23 of the Act against the petitioner. As per the said order, the petitioner was directed not to commit any domestic violence against the petitioner. According to the respondent, on the date of the incident, the petitioner herein questioned her as to why she quarreled with the maid on the previous day and abused her in filthy language and pulled her hand and asked her to go out of the house. This version is inconsistent with the statement made by her in the private complaint, wherein she has stated that during the occurrence, the petitioner abused her and pulled her hand and slapped her on her cheek and asked her to go out of the house. The narration given in the complaint, if believed, it would go to show that there was actual physical assault on the respondent, but reading of the sworn statement indicates that there was only an attempt. Further, in her sworn statement, she has stated that she rang up to the police and police arrived to her house and advised both the husband and wife, and on the next day, she received a phone call from the police station informing her that her husband has come to the police station to lodge a complaint against her and immediately she went to the police station and the dispute was compromised at the instance of an Advocate. No independent material is produced in support of any of these averments, as a result, acceptable material is not available to show that the alleged incident had taken place as contended by her.
9. Her statement that she went to the police station only on the next day on hearing from the police that her husband had to come to the police station to lodge a complaint would indicate that she did not have any grouse regarding the incident that has taken place on 06.10.2015. It is only when she came to know that her husband had gone to the police station, she appears to have thought of filing the instant complaint.
10. Be that as it may, even the allegations made in the complaint appear to be highly improbable and unbelievable. Though she has asserted in her sworn statement that soon after the incident, the police arrived to the spot and pacified the quarrel, she has neither cited the name of any one of the said police official nor has she examined any of the police personnel who are alleged to have came to her house at the time of incident. As a result, there is no corroboration to the interested testimony of the respondent.
11. Further, according to her own version, the matter was pacified in the police station at the instance of an Advocate. Even the name of the said Advocate is not disclosed in the complaint nor he has been examined before the Court. All these circumstances lead to doubt the genuineness of the allegations made by her. The inconsistent version narrated in the private complaint and in her sworn statement would lead to the inevitable inference that solely with a view to foist another case against her husband, the respondent has made allegations of domestic violence by her husband. But having considered her sworn statement and the averments made in the private complaint, in my view, the allegations appear to be false, baseless, ulteriorly motivated. The material produced by the petitioner, is not sufficient to make out any domestic violence, much less the violation of the protection order passed by the learned Magistrate .
12. In that view of the matter, the order passed by the learned Magistrate directing registration of the case under Section 31 of the Act, in my view is wholly illegal and being contrary to the materials on record cannot be sustained.
13. Accordingly, the petition is allowed. Criminal proceedings pending against the petitioner in C.C.No.3386/2015 on the file of the JMFC, III Court, Mangalore, are hereby quashed.
Srl.
Sd/- JUDGE