IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5813 OF 2016 BETWEEN:
SRI SIDDALINGAIAH M B S/O M.R.BYLAPPA, AGED ABOUT 42 YEARS, RESIDING AT MUDUGERE VILLAGE, HOSUR POST, GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT-561210 (BY SRI: M S BHAGWAT, ADVOCATE) ... PETITIONER AND 1. STATE BY KYATHASANDRA POLICE REPRESENTED BY STATION HOUSE OFFICER, KYTHSANDRA POLICE STATION, TUMKUR-572104 2. SMT. VIDYAVATHI @ M.S.SUDHA W/O M.B.SIDDALINGAIAH, AGED ABOUT 38 YEARS, RESIDING AT C/O PALANETHRA, (CHIKKAMAIAH) NEAR BY S.R.S.CONDIMENTS, 4TH CROSS, MURUGAMATA, ARALEPETE, TUMKUR-01 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: B.SATEESH, ADVOCATE FOR R2-ABSENT) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT FILED BY THE RESPONDENT-2 IN P.C.R.NO.148/2016, ON THE FILE OF PRL. CIVIL JUDGE (JR.DN) AND JMFC, TUMKUR (ANNEXURE-A), PROCEEDINGS IN P.C.R.NO.148/2016 (ANNEXURE-B) AND FIR FILED BY THE RESPONDENT-1 IN CR.NO.33/2016 (ANNEXURE-C).
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is aggrieved by the registration of FIR against him based on the direction issued by the learned Magistrate under section 156(3) of Cr.P.C.
2. FIR is registered for the offences punishable under sections 498A, 420, 467, 506 read with 34 of IPC and sections 3 and 4 of Dowry Prohibition Act.
3(i). Learned counsel for the petitioner has referred to the decree passed by the Senior Civil Judge and CJM, Sitting at Gowribidanur in M.C.No.92/2011 dated 09.07.2013, whereby the marriage between petitioner and respondent No.2 has been dissolved by a decree of divorce under section 13 of the Hindu Marriage Act. Placing reliance on the decision of the Hon’ble Supreme Court in Mohammad Miyan & Others vs. State of Uttar Pradesh and Another (Criminal Appeal No.1048/2018) dated 21.08.2018, learned counsel has emphasized that in view of the divorce granted by the court, the prosecution of petitioner under section 498A of IPC and sections 3 and 4 of Dowry Prohibition Act, 1961 is not sustainable, since petitioner was not the husband of respondent No.2 as on the date of registration of FIR.
3(ii) Second, he contends that the averments made in the complaint, even if accepted as a whole, do not disclose ingredients of offences under sections 467 and 420 of IPC and hence, registration of FIR by itself is legally untenable and liable to be quashed.
4. Learned Addl. SPP has argued in support of the impugned action contending that the allegations made in the complaint prima facie disclose ingredients of the above offences and the matter being under investigation, there is no case for quashing the proceedings.
5. Learned counsel for respondent No.2 is absent and has not addressed any arguments.
6. Insofar as the first contention urged by learned counsel for the petitioner that the marriage between petitioner and respondent No.2 is dissolved by a decree of divorce and therefore, petitioner does not answer the description of “husband” within the meaning of section 498A of IPC cannot be accepted as it is specifically averred in the private complaint lodged by respondent No.2 that the said decree was obtained behind the back of respondent No.2 and the same is challenged before this court in MFA.No.1382/2013. As such, the decree passed by the Civil Court has not attained finality. Appeal is continuation of proceedings and therefore, at this juncture, it cannot be said that the matrimonial relationship between the petitioner and respondent No.2 is snapped by a decree of divorce as contended. Under the said circumstances, the principle of law laid down by the Hon’ble Supreme Court in the decision relied on by the learned counsel for the petitioner is not applicable to the facts of the case.
7. Insofar as the second contention urged by learned counsel for petitioner is concerned, on going through the memorandum of complaint filed by respondent No.2, I do not find any averment therein making out the ingredients of the offences under sections 467, 420, 506 of IPC. The entire allegations in the complaint pertain to the alleged acts of cruelty and demand of dowry. It is stated that on account of alleged demand and cruelty meted out to her, offences under sections 420, 467 and 506 of IPC are committed by accused. The said averments, by themselves, do not constitute ingredients of the offences leading to the prosecution of petitioner for the alleged offences. In that view of the matter, registration of FIR under sections 506, 420 and 467 of IPC cannot be sustained.
Accordingly, petition is allowed-in-part.
(i) Registration of FIR in Crime No.33/2016 pending on the file of Principal Civil Judge (Jr.Dn.) & JMFC, Tumkur for the offences under sections 420, 506 and 467 of IPC are quashed.
(ii) Investigation shall proceed in respect of offences under sections 498A of IPC and sections 3 and 4 of Dowry Prohibition Act as per law.
(iii) In view of disposal of petition, I.A.No.1/2018 does not survive for consideration and it is also disposed of.
Sd/- JUDGE Bss