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2019 DIGILAW 186 (KAR)

Battula Sreedevi v. State of Karnataka

2019-01-16

H.P.SANDESH

body2019
JUDGMENT : H.P. Sandesh, J. 1. I have heard the petitioners' counsel and the learned HCGP for respondent No. 1-State. 2. The counsel who was represented on behalf of respondent No. 2 sought permission of this Court for retirement and permitted to retire. Thereafter, respondent No. 2 did not choose to engage other counsel. 3. The petitioners in the petition is contended that the marriage of the petitioner No. 1 and respondent No. 2 was solemnized on 2.6.2002 and thereafter, the case was registered in Crime No. 109/2005 under Section 498(A) of IPC and Sections 3 and 4 of the Dowry Prohibition Act read with Section 156(3) of Cr.P.C. against respondent No. 2 and his inmates those who have been arrayed as accused Nos.1 to 6. 4. It is contended that in the year 2006, petitioner No. 1 filed petition under Section 125 of Cr.P.C. for maintenance of Rs. 3,000/- per month from the date of petition and the petitioner No. 1 also filed a petition under Section 13(1) (ia) and (ib) of the Hindu Marriage Act seeking a decree of divorce and the Court below allowed the petition in MOP No. 3/2009 and dismissed the appeal in Crl. A. No. 140/2008 filed by Respondent No. 2 and confirmed the conviction and sentence dated 10.01.2008 imposed against accused Nos. 1 to 6 in CC No. 22/2006 on the file of the JMFC, Atmakur. When the matter stood thus, after a lapse of five year from the date of divorce i.e. on 31.01.2015, respondent No. 2 filed a private complaint making allegations against these petitioners and the Court below taking cognizance ordered to investigate the matter. The police after investigation filed 'B' report and the same has been challenged by respondent No. 2 by filing a protest petition. Thereafter, the sworn statement of respondent No. 2 and two other witnesses was recorded by the trial Court. The Court below took cognizance for the offences punishable under Sections 504 and 506 of IPC and the same has been challenged before this Court. 5. The main contention of the petitioners is that the complaint is offshoot of the maintenance petition and the criminal proceedings initiated against respondent No. 2 and the Court below convicted the respondent No. 2 in CC No. 22/2006 and the same was confirmed in Crl. A. No. 140/2008. 5. The main contention of the petitioners is that the complaint is offshoot of the maintenance petition and the criminal proceedings initiated against respondent No. 2 and the Court below convicted the respondent No. 2 in CC No. 22/2006 and the same was confirmed in Crl. A. No. 140/2008. It is further contended that the complaint is filed after lapse of five years of the proceedings only with an intention to harass these petitioners and the allegations made in the complaint are frivolous and the Court below failed to take note of the 'B' report filed by the Police while taking cognizance of the two offences and it has also not applied its mind while passing the impugned order. 6. The petitioners' counsel reiterated the grounds urged in the petition and brought to my notice the sworn statement and also the complaint, which amounts to miscarriage of justice. The complaint is filed with mala-fide intention and it attracts the abuse process of law. 7. Per contra, the learned HCGP for respondent No. 1-State contends that the Court below only took cognizance in respect of the offences under Sections 504 and 506 of IPC, since the allegations made against these petitioners is that they came to the house of the complainant and caused threat. The Magistrate has rightly applied its mind while taking cognizance in respect of the offences under Sections 504 and 506 of IPC and the Court below has not committed any error in taking cognizance. 8. Having heard the learned counsel appearing for the petitioners as well as the learned HCGP, the point that arises for my consideration is, whether this Court can exercise its power under Section 482 of Cr.PC? 9. On a perusal of the private complaint dated 31.01.2015 against these petitioners and the allegations made in para-5 of the complaint that these petitioners hatched a plan to extract the money from the complainant and came along with accused No. 3 near the house of the complainant and caught hold the collar of the complainant and abused in filthy language and assaulted and shown deadly weapons and demanded an amount of Rs. 2,00,000/- from the complainant. 2,00,000/- from the complainant. The police after the investigation have filed "B" report and the Court below recoded sworn statement of the complainant and also two other witnesses, which is available at page Nos.51, 53 and 55 and on a perusal of the order dated 26.05.2016, the Magistrate regarding invoking penal provision did not take cognizance in respect of Sections 420, 323 and 324 of IPC, but while taking cognizance invoked the Sections 504 and 506 of IPC. While taking cognizance, it is mentioned that the material placed by the complainant goes to show that he was threatened by the accused persons and also he was abused in foul and filthy language. There is no any specific mention in the order of cognizance taken by the Magistrate and nothing is discussed in the order also, whether the Court below has considered the sworn statement of the witnesses who have been examined and the complaint averments and also there was no application of mind while taking cognizance. Mere saying that examination of the material, goes to show that it was a threat by the accused persons cannot be accepted. 10. Admittedly, there is no dispute with regard to the fact that the petitioner No. 1-wife initiated the proceedings against the complainant for maintenance and criminal proceedings for harassment and the maintenance of Rs. 3,000/- awarded and he was convicted in criminal case and same was confirmed in Crl. A. No. 140/2008 before the Sessions Judge. When such being the case, the Court below ought to have examined the material on record and the complaint is filed after five years of disposal of cases filed by the petitioners herein and hence, it is nothing but an attempt made by respondent No. 2 to take revenge against the wife. If the proceedings is continued against these petitioners would amount to abuse of process of law and also miscarriage of justice. 11. In view of the discussions made above, I pass the following: ORDER (i) The petition is allowed. (ii) The entire proceedings initiated against the petitioners in CC No. 406/2016 pending on the file of the Court of III Addl. Civil Judge and JMFC, Ballari is hereby quashed.