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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
P.S. DINESH KUMAR, J.
Sri. Faisal Ahmed Khan S/o Late Nazir Ahmed Khan – Petitioner
Versus
The State of Karnataka Mahila Police Station Mysuru – Respondent
Criminal Petition No. 7129 of 2018
Decided On : 11-10-2019
Dowry Prohibition Act - Sections 3 and 4 - Prevention of Women from Domestic Violence Act, 2005 - Sections 12, 18, 19, 20, 21 and 22 - Domestic Violence Act – Indian Penal Code - Sections 498-A, 506 – Criminal Procedure Code - Section 482 – First Information Report – Demand of dowry - Whether marriage is void cannot be considered at stage of discharge - Briefly stated facts of case are petitioner is a Mechanical Engineer working in Kuwait UAE - He married complainant on July in Mysore - A female child was born to them on April - His wife did not agree to join petitioner to go abroad - In order to save marriage he resigned from his job - In September complainant left matrimonial home on pretext of attending her sister’s engagement ceremony along with her belongings such as clothes and jewellery - Thereafter she never returned to matrimonial home – Subsequently petitioner got another job in Bahrain - Complainant refused to join him to travel abroad - Petitioner left for Bahrain alone on February - On April complainant filed FIR in Women Police Station Mysore City alleging harassment and demand for dowry against six accused - Petitioner was shown as first accused and his family members as other accused - After investigation police filed charge-sheet only against petitioner for offences punishable under Sections 498-A, 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act – Held, A conspectus of facts narrated by petitioner and undisputed facts which can be gathered from records lead to an irresistible inference that though complaint is filed alleging commission of offence under Section 498A IPC it is in fact petitioner who has suffered an untold misery in hands of complainant - It cannot be gainsaid that disclosure of a previous subsisting marriage causes immense mental pain and agony to a husband - Complainant has though unsuccessfully driven petitioner to various Courts unabatedly - It started with complainant initiating proceedings under provisions of DV Act followed by proceedings under Section 125 Criminal Procedure Code Judicial findings have been recorded by learned Trial Magistrates in both proceedings with regard to complainants’ conduct - Learned Magistrate adjudicating proceedings under DV Act has recorded that as per Ex.R7 complainant’s marriage with her third husband was proved - This finding has been affirmed by learned Sessions Judge while dismissing appeal - Suffice to note that records unequivocally disclose that complainant was respondent in a matrimonial case for restitution of conjugal rights initiated by her first husband when she got married with petitioner - She has admitted this fact in proceedings before learned Magistrate in proceedings under Section 125 Criminal Procedure Code - This is a classic case in which a complainant by initiating criminal proceedings under Section 125 Criminal Procedure Code and Section 498A IPC against petitioner has abused said provisions - It is relevant to note that though complaint contains allegations recorded above there is interpolation with regard on which date she was allegedly confined in a room and attempt was made to kill her by pouring kerosene – Further it is stated that made an attempt to hang her to a Ceiling fan - In the following sentence it is stated that he made her fall from a motor cycle and tried to kill her - Two allegations that he attempted to hang complainant and thereafter made her fall from motor cycle contradict each other - If he had really attempted to hang her how did she escape from his clutches No details are forthcoming in this behalf - Complaint is full of unbelievable and self contradicting allegations - First allegation of demand is said to have been made jointly by petitioner and his family members - Second allegation regarding demand of money to purchase a car is alleged jointly against petitioner and his sisters - Thus all allegations in complaint are omnibus in nature and in least made jointly with other accused and there are no specific against petitioner - After investigation admittedly police have not filed charge-sheet against accused No. 2 to 6 - Neither prosecution nor complainant have placed any other material which may suggest commission of any of alleged criminal act/s by petitioner - Therefore it can be safely concluded that allegations against petitioner are designed to harass him - Petition is allowed
ORDER :
1. This is an unfortunate case of an highly harassed husband by abuse of process of law. This petition under Section 482 Cr.P.C. is presented with following prayers:
“(a) Call for the records in C.C. No. 923/2012 (Crime No. 22/2012 of Mahila Police Station, Mysuru), pending on the file of IV Senior Civil Judge and JMFC, Mysuru and further be pleased to set aside the taking of cognizance of the case and quash the entire proceedings in C.C. No. 923/2012 pending on the file of the IV Additional Senior Civil Judge and JMFC, Mysuru.
(b) Quash the order dated 10/8/2018 passed by the IV Addl. Senior Civil Judge and JMFC, Mysuru in C.C. No. 923/2012 on IA filed by the Petitioner for discharge that for the reasons stated above, in the ends of justice.”
2. Heard Shri Faizal Ahmed Khan, party-in-person, Smt. K.P. Yashodha, learned HCGP for the State and Shri S.R. Hegde Hudlamane for complainant-second respondent.
3. Briefly stated the facts of the case are, petitioner is a Mechanical Engineer working in Kuwait, UAE. He married complainant on 21st July 2008 in Mysore. A female child was born to them on 29th April 2009. His wife Nazia Asma (complainant) did not agree to join petitioner to go abroad. In order to save the marriage, he resigned from his job. In September 2011, complainant left the matrimonial home on the pretext of attending her sister’s engagement ceremony along with her belongings such as clothes and jewellery. Thereafter, she never returned to the matrimonial home. Subsequently, petitioner got another job in Bahrain. Complainant refused to join him to travel abroad. Petitioner left for Bahrain alone on 5th February 2012.
4. On 7th April 2012, complainant filed FIR No. 22/2012 in Women Police Station, Mysore City alleging harassment and demand for dowry against six accused. Petitioner was shown as first accused and his family members as other accused. After investigation, police filed charge-sheet only against petitioner for offences punishable under Sections 498-A, 506 of IPC and Sections 3 and 4 of Dowry Prohibition Act.
5. Petitioner filed an application under Section 239 Cr.P.C. seeking discharge. By order dated 10th August 2018, learned trial Judge has dismissed the said application. Petitioner, in this petition, has challenged the entire criminal proceedings including the order passed by the learned Sessions Judge on his application filed under Section 239 Cr.P.C.
6. Shri Faizal Ahmed Khan, petitioner/party-in-person urged following grounds in support of this petition:
(i) that complainant was married with one Asif Ali Farooqi on 29th August 2003, prior to marrying him on 21st July 2008.
(ii) that Asif Ali Farooqi had filed M.C. No. 1710/2006 in the Court of Principal Family Judge, Bengaluru seeking restitution of conjugal rights. It stood transferred to the Family Court at Mysore and re-numbered as M.C. No. 244/2007.
(iii) that an interim order was passed on 5th August 2006 in M.C. No. 244/2007 against complainant from re-marrying. However, suppressing this fact and in violation of Court order, complainant got married with petitioner in July 2008.
(iv) that complainant also initiated criminal proceedings under Sections 12, 18, 19, 20, 21 and 22 of Prevention of Women from Domestic Violence Act, 2005 in C. Misc. No. 69/2012 on the file of Principal I Civil Judge and JMFC, Mysore. In the order dated 5th December 2016, the learned Trial Judge has recorded in paragraphs nos. 38 and 39 thereof that Ex.R7 had proved that complainant had married for the third time and rejected the petition with costs.
(v) that complainant also initiated proceedings in C. Misc. No. 526/2014 under Section 125 Cr.P.C. seeking maintenance. While tendering her evidence in the said proceedings she has admitted in the cross-examination that she was earlier married and her marriage was registered in the office of the Sub-Registrar, Channapattana.
(vi) that petitioner filed O.S. No. 55/2015 on the file of Judge, Family Court at Mysore seeking a declaratio
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