IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.8541/2017 Between:
V.Ataliq Ali S/o V.Liyakhat Ali, Aged about 33 years, No.1 B.No., 18th Cross, Shivaji Nagar, Bengaluru – 560 051. ... Petitioner (By Sri.Younous Ali Khan, Advocate) And:
1. State by Hennur P.S Bengaluru.
Represented by The State Public Prosecutor, High Court of Karnataka, High Court Buildings, Bengaluru – 560 001.
2. Smt.Najamunnisa, W/o Athaliq Ali, Aged about 28 years, No.108/06, E1 Aprova Manor Hennur Cross, Bengaluru – 560 043 At present residing at No.5, 10th ‘G’ Main, Nisarga Layout, Ananthapura Road, Yelhanka, Bengaluru – 560 064. Office address WIPRO GE Healthcare Pvt Ltd., John F Welch Technology Centre Odyssey Building, No.122, EPIP, Phase II Whitefield, Bengaluru – 560 066. ... Respondents (By Sri.S.Rachaiah, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C praying that this Hon’ble Court may be pleased to quash the FIR against the petitioners in Crime No.27/2017 of Hennur Police Station for the offence punishable under Sections 497, 498A, 34 of IPC, pending on the file of the XI A.C.M.M., Mayo Hall, Bengaluru City and etc., This Criminal Petition coming for Admission this day, the Court made the following:
O R D E R Though matter is listed for admission, by consent of learned counsel appearing for parties, it is taken up for final disposal.
2. Heard Sri.Younous Ali Khan, learned counsel appearing for petitioner and Sri.S.Rachaiah, HCGP appearing for respondents and perused the records.
3. 2nd respondent is the wife of petitioner who is sole accused in Crime No.27/2017 which FIR came to be registered by Hennur Police Station for the offences punishable under Sections 497, 498A and 34 of IPC. It is the contention of learned counsel appearing for petitioner that petitioner is innocent of the alleged offences leveled against him and he comes from a very respectable family and on account of petitioner having cordial relationship with one of his colleague by name Shailaja, his wife gave a colour of having illicit relationship with her. As such, he has prayed for quashing of said proceedings. He would also submit that Hon’ble Apex Court in the case of Joseph Shine v. Union of India reported in AIR 2018 SC 4898 has held Section 497 of IPC is ultra vires the Constitution of India and has struck down said provision. As such, registering of FIR for the said offence is bad in law and liable to be quashed. He would submit that allegations of Section 498A of IPC would not stand by its leg alone inasmuch as the basis for invoking Section 498A of IPC is based on the allegations made for the offence punishable under Section 497 of IPC and as such, entire proceedings against the petitioner is to be quashed.
4. Per contra, S.Rachaiah learned HCGP for State would not dispute the fact of Section 497 having been struck down by the Hon’ble Apex Court. However, he submits that offence under Section 498A will have to be tried in the teeth of allegations made in the complaint. Hence, he prays suitable orders being passed by this Court.
5. Having heard learned advocates appearing for parties and on perusal of case papers, it would emerge therefore that 2nd respondent who is the wife of the petitioner/accused No.1, has alleged that from date of marriage i.e., 20.08.2016, he was not having physical relationship with her and accused from very first day, whenever approached, was giving evasive reply and at one point of time, he informed that he was homosexual and not interested in having any relationship with her. She further alleged that on verification, she came to know that he was having extra marital relationship with one Smt.Shailaja and during her stay in the matrimonial home, she was subjected to mental and physical torture. On these allegations, she lodged a complaint on 22.01.2017 which was registered in Crime No.27/2017 for the offences stated herein supra.
6. In so far as contention of Sri.Younous Ali Khan, learned counsel appearing for petitioner with regard to invoking Section 497 of IPC against petitioner is not justified and quashing of the proceedings for said offence deserves to be accepted inasmuch as said Section has been struck down and it does not remain in the statute. As stated, continuation of proceedings for the offence punishable under Section 497 of IPC requires to be quashed. However, with regard to quashing of proceedings for the offences punishable under Section 498A is concerned, this Court would not entertain such prayer for the simple reason that allegations made in the complaint of purported physical and mental torture would attract Section 498A of IPC., Whether such acts were purportedly committed by the accused, is an issue which has thrashed out during trial. Any opinion expressed by this Court at this juncture would prejudice right of the parties. Hence, without entering into the said issue, I proceed to pass the following;
ORDER 1. Criminal Petition is allowed in part.
2. Proceedings pending against petitioner in Crime No.27/2017 registered by Hennur Police Station for the offence punishable under Section 497 of IPC is hereby quashed.
3. However, proceedings initiated against the petitioner for the offence under Section 498A shall be proceeded with.
In view of this criminal petition having been disposed of on main, I.A.No.1/2017 filed for stay does not survive for consideration and it is hereby rejected.
SD/- JUDGE NBM/HR