IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA Criminal Petition No.2744 of 2016 BETWEEN:
1. SRI. SANTHOSH PADMANABHA S/O PADMANABHA AGED ABOUT 36 YEARS, DOOR NO. 95, III FLOOR, 13TH MAIN, HANUMANTHANAGARA BANGALORE - 560 050 2. SRI PADMANABHA S/O LATE THIMA SETTY AGED ABOUT 69 YEARS, 3. MRS. VIJAYALAKSHMI W/O PADMANABHA AGED ABOUT 59 YEARS, BOTH ARE R/AT NO. 37, I CROSS, BEHIND PF OFFICE, SINGASANDRA ELECTRONIC CITY, BANGALORE - 560 068.
4. SMT. LAKSHMI @ SWETHA D/O PADMANABHA AGED ABOUT 39 YEARS, R/AT 305, WALSH HILL TRAILS AUSTIN, TEXAS - 78613 (BY SRI. RAJESH RAI, ADV.) ... PETITIONERS AND 1. STATE BY HANUMANTHANAGARA POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BANGALORE - 560 001.
2. SMT. DIVYASHREE W/O SANTHOSH PADMANABHA AGED ABOUT 35 YEARS, R/AT NO. 503, III FLOOR SURYAKIRAN BUILDING 3RD MAIN, 50 FEET ROAD HANUMANTHANAGARA BANGALORE - 560 050.
... RESPONDENTS (BY SRI. I. S. PRAMOD CHANDRA, SPP-II FOR R1 SRI. CHETHAN B., ADV. FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.415/2015 DATED 12.12.2015 REGISTERED BY THE 1ST RESPONDENT POLICE AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S 498(A) R/W 34 OF IPC AND SEC. 3 AND 4 OF D.P. ACT BASED ON THE COMPLAINT LODGED BY 2ND RESPONDENT PRESENTLY PENDING ON THE FILE OF XXIV A.C.M.M., BANGALORE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner No.1 is the husband, petitioners 2 and 3 are the in-laws and petitioner No.4 is the sister-in-law of respondent No.2 (hereinafter referred to as ‘complainant’). She lodged a complaint before Hanumanthanagar police on 12.12.2015 based on which Crime No.415/2015 was registered against the petitioners herein for the offences punishable under Sections 498A r/w 34 of IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as ‘the DP Act’ for short). After investigation, charge-sheet is laid against the petitioners for the above offences. The petitioners have sought to quash the initiation of the proceedings and the submission of charge-sheet against them for the above offences.
2. Heard learned counsel for petitioners, learned SPP-II for the State and learned counsel for respondent No.2.
3. Learned counsel for petitioners submits that the allegations made against the petitioners are false and do not make out the ingredients of the offences alleged against the petitioners. The complainant lived with petitioner No.1 only for six years. Except alleging that during this period their relationship was not cordial and that there were some instances of differences between the parties, in the complaint she did not allege any specific instance of cruelty. It is only in her further statement recorded after 3½ months, the complainant has come up with fresh allegations only to foist false charges against petitioners. He submits that petitioner No.4 is a permanent resident of USA and did not reside with the complainant at any point of time and therefore there was no basis for the complainant to make allegations against petitioner No.4. Even with regard to petitioner Nos.2 and 3, the complainant herself has admitted that as and when they used to come to her house, they did not allow her to close the door of her bedroom which indicates that even petitioner Nos.2 and 3 were not residing with the complainant. Under these circumstances, there is no truth or substance in the allegations made by the complainant that at the instance of petitioners 2 to 4, her husband subjected her to cruelty and harassment. The learned counsel has referred to the stamping on the passport and would submit that during the period from 22.04.2011 to 10.12.2011, 21.09.2012 to 09.11.2012 and 25.06.2013 to 14.11.2014, petitioners 2 and 3 were out of India. The above document coupled with the fact that these allegations are levelled against these petitioners only in her further statement given after about 3½ months from the date of lodging the complaint, would indicate that with malafide intention to implicate the petitioners in the alleged offences, the complainant has garnered false evidence and hence the prosecution of the petitioners being malafide and vexatious, is liable to be quashed.
4. Learned SPP-II appearing for the State and learned counsel for respondent No.2 submit that the allegations made against the petitioners prima facie attract the offences under Section 498A of IPC and Sections 3 and 4 of the DP Act. The complainant has narrated specific instances of cruelty in her complaint as well as in her further statement. There is no requirement under law that the specific instances of cruelty or the facts constituting the offences should be detailed in the complaint. As the investigating agency has collected necessary material in proof of these accusations, this Court in exercise of power under Section 482 of Cr.P.C. cannot sift evidence and cannot decide as to whether the said allegations lead to conviction of the accused. As the material on record prima facie establish the ingredients of the offences under Section 498A of IPC and Sections 3 and 4 of the DP Act, there is no justifiable reason to quash the proceedings. In support of this submission, the learned counsel for respondent No.2 has placed reliance on para-10 of the decision of the Hon'ble Supreme Court in STATE OF ORISSA & ANR. VS. SAROJ KUMAR SAHOO [(2005) 13 SCC 540] wherein it is held as under:
“10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Thus they plead for dismissal of the petition.
5. I have considered the submissions made by learned counsel for the parties and have carefully perused the materials on record.
6. It is not in dispute that the marriage of complainant and petitioner No.1 was performed on 09.08.2009 at Bangalore. In the complaint she has stated thus: “my parents gave me about 400 grams of gold in the form of various types of ornaments”. This statement indicate that at the time of marriage there was no demand for gold by the petitioners and nothing was given to the petitioner by way of dowry. The only allegation attracting dowry demand finds place at para No.5 of the complaint which reads as under:
“5. x x x x x My mother in law and my father in law instigate my husband to torture me physically and mentally to bring money from my parents. In one occasion my husband and in laws pressurized me to ask Rs.10,00,000/- from my father to buy a house property at USA. My father retired from service recently, after his retirement they started to demand money from his retirement benefits”.
It is not clear from the above averments as to when exactly the said demand was made. There is nothing on record to show that the said demand was communicated by her to her father or any efforts were made to satisfy the said demand. The statements made in the complaint are vague and general in nature and based on the said allegation, in my view, it is not proper to prosecute the petitioners for the offences under Sections 3 and 4 of the DP Act.
7. Section 3 of the DP Act deals with the penalty for giving or taking dowry and Section 4 deals with the penalty for demanding dowry. Dowry has been defined in Section 2 of the DP Act as under:
“2. In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”
There are no averments whatsoever in the entire complaint or in the charge-sheet to suggest that the alleged demand was made either by petitioner No.1 or by other petitioners in connection with the marriage or in consideration of the marriage of the complainant with petitioner No.1. On the other hand, going by the version of the complainant herself, the said amount was demanded to buy a house property at USA. This allegation even if accepted as true, in my view, does not fit into the definition of dowry. As a result, it has to hold that respondents have failed to prima facie make out a case for prosecution of petitioners for the offences under Sections 3 and 4 of the DP Act.
8. Referring to the further statement of respondent No.2, learned counsel for the respondent No.2 and learned SPP-II would contend that in the further statement all the constitutes of the offences are narrated and therefore there is no ground to quash the impugned proceedings. I have gone through the further statement of the complainant recorded by the Investigating Officer. First and foremost, this statement has been recorded on 31.03.2016, more than 3½ months after the registration of the FIR. As such, it has lost its spontaneity and veracity. This statement on the face of it appears to be an afterthought. It contains, such an exaggerated version that it defies all reason and logic to place any reliance thereon.
9. Contrary to her earlier version, in this statement at para-20 she has stated that petitioner No.4 was pressurizing her to pay Rs.5,00,000/- for the higher education of her son, and another sum of Rs.10,00,000/- to purchase a property in USA. According to her, this demand was made by petitioner No.4 with her husband, petitioner No.1, over his cell phone. She is silent with regard to the date and place of the said demand and the prosecution has not collected any material to show as to when exactly such call was made by petitioner No.4 to the cell phone of petitioner No.1. No call records are produced along with the charge-sheet. As such, no material is available to substantiate this allegation.
10. According to the complainant even petitioner No.4 was pestering her and harassing her from the date of her marriage in the matrimonial home. Learned counsel for the petitioners has filed a memo along with the copy of passport of petitioner No.4 and the ID card of the son of petitioner No.4 which disclose that her son was studying in 8th Std. in the year 2017. It is unbelievable and improbable that a demand would be made by petitioner No.4 with the complainant asking her to provide money for the higher education of the son of petitioner No.4 who was then studying in 8th Std. The manner in which the complainant has leveled allegations after allegations would show that a desperate attempt has been made only to foist exaggerated charges against the petitioners. These allegations, as already stated above, even if accepted to be true, do not fall within the ambit of Section 3 and 4 of the DP Act or Sec.498A of IPC. Therefore, prosecution of the petitioner on the basis of these allegations would be nothing but an abuse of the process of court.
11. In the further statement various other allegations are made stating that petitioner No.3, the mother-in-law of the complainant was misbehaving with the child of the complainant. But no charges have been framed based on these allegations apparently for the reason that these allegations do not constitute cruelty within the meaning of Section 498A of IPC. Section 498A of IPC reads as under:
“498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
12. As per the said provision, in order to constitute an offence under Section 498A, the cruelty meted out to the victim should be of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health or to coerce her to make any unlawful demand of any property or valuable security. As already discussed above, the allegations made by the complainant of unlawful demand are far from truth. Even though the complainant has alleged that she was subjected to ill- treatment and harassment in the matrimonial home, complainant has not resorted to any matrimonial reliefs against her husband either on the ground of cruelty or on any other grounds. On the other hand, records indicate that petitioner No.1 himself had filed a petition under Section 9 of the Hindu Marriage Act, 1955 seeking restitution of conjugal rights. It is submitted that the said petition was withdrawn in January 2019. The very fact that the complainant has not chosen to rejoin the petitioner, indicates that the motive of the complainant is to compel them to yield to her demands on pain of facing criminal prosecution. It is in this context that the observation made by the Hon'ble Supreme Court in the case of SAROJ KUMAR SAHOO (SUPRA) at para-10, in my view, gets attracted to the facts of this case.
13. Thus taking into consideration all the above facts and circumstances of the case, I am of the opinion that criminal proceedings have been invoked by the petitioners only to unleash vendetta to harass the petitioner. The complainant appears to be not interested in any matrimonial reliefs, but has implicated all the members of the family including petitioner No.4 who is a permanent resident of USA. The material on record indicates that all throughout, petitioner No.4 was residing in USA. Even petitioners 2 and 3 were residing with petitioner No.4 for a substantial period after the marriage of the petitioner No.1 with the complainant. It is only the petitioner No.1 and the complainant who resided in the matrimonial home. On account of the matrimonial differences between the complainant and petitioner No.1, the complainant appears to have initiated criminal action against the petitioners. On considering the allegations made in the charge-sheet and the material produced along with the charge-sheet, I am of the view that the initiation of criminal action against the petitioners is malafide and vexatious and is intended to harass the petitioners. Hence in my view, the jurisdiction under Section 482 of Cr.P.C. is required to be exercised in the present set of facts.
14. It is also necessary to note that initially the FIR was registered only for the offences under Section 498A of IPC and Sections 3 and 4 of the DP Act. Surprisingly in the charge-sheet, offences under Sections 323, 504 and 506 of IPC are incorporated. On going through the further statement of the complainant, except stating that the petitioner No.1 was in the habit of coming home drunk and assaulting her and kicking her, there is no specific instance of any assault by petitioner No.1 constituting the offence under Section 323 of IPC. As already stated above, in the earlier complaint no such allegations were made even against the petitioner No.1. The manner in which the above offences are incorporated in the charge-sheet would indicate that even the Investigating Officer has yielded to the pressure of the complainant and solely on the basis of the self-interested version of the complainant, has implicated the petitioners in the alleged offences without there being any material to support the said accusations. On going through the charge-sheet, I do not find any material in support of charges under Sections 323, 504 and 506 of IPC. As a result, prosecution of the petitioners for the above offences has turned out to be an abuse of process of Court. Therefore, I am of the view that the proceedings initiated against the petitioners are liable to be quashed.
15. Accordingly, the petition is allowed. The proceedings initiated against the petitioners in Crime No.415/2015, are hereby quashed.
Sd/- Judge RD