Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nKarnataka High Court\nManthesha K S/O Late Sanna Naganna vs The State Of Karnataka on 23 February, 2022Bench: M.Nagaprasannapresided Bymnpj\n                            1\n\n\n\n\n            IN THE HIGH COURT OF KARNATAKA\n                    DHARWAD BENCH\n\n        DATED THIS THE 23RD DAY OF FEBRUARY, 2022\n\n                         BEFORE\n\n        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA\n\n           CRIMINAL PETITION NO.101856 OF 2019\n\nBETWEEN:\n\n1.   MANTHESHA K.,\n     S/O LATE SANNA NAGANNA\n     AGED ABOUT 32 YEARS\n     OCC: EMPLOYEE IN\n     HERO HONDA SHOW ROOM AT BALLARI\n     R/O: AALADAHALLI VILLAGE\n     TQ: AND DIST: BALLARI.\n\n2.   SMT.HANUMAKKA\n     W/O HONNUR SWAMY\n     AGE: 33 YEARS,\n     OCC: HOUSEHOLD WORK.\n\n3.   HONNUR SWAMY\n     S/O NAGAPPA\n     AGE: 40 YEARS; OCC:KEB LINEMAN.\n\n4.   SMT.SHIVAMMA\n     W/O LATE SANNA NAGANNA\n     AGE: 47 YEARS,\n     OCC: AGRI.,\n\n5.   SMT.SUMA\n     W/O LAKSHMAIAH\n     D/O SANNA NAGANNA\n     AGE: 29 YEARS, OCC: HOUSEHOLD.\n                                2\n\n\n\n\n6.     LAKSHMAIAH\n       S/O HONNURAPPA\n       AGED: ABOUT 34 YEARS.\n\n7.     HANUMESHA\n       S/O SANNA NAGANNA\n       AGED ABOUT 29 YEARS.\n\n8.     PRAVEEN KUMAR\n       S/O HONNUR SWAMY\n       AGED ABOUT 20 YEARS,\n       OCC: HOUSEHOLD.\n\n       PETITIONER NO.2 TO 8 ARE\n       R/O: AALADAHALLI VILLAGE,\n       TALUKA AND DISTRICT: BALLARI.\n                                              ... PETITIONERS\n(BY SRI LAXMAN T.MANTAGANI AND\n    SRI NAGARAJ J. APPANNANAVAR, ADVOCATES)\n\nAND:\n\n1.     THE STATE OF KARNATAKA\n       THROUGH SPP,\n       HIGH COURT OF KARNATAKA,\n       HIGH COURT BUILDING,\n       REPRESENTED BY POLICE INSPECTOR,\n       GUDEKOTA POLICE STATION,\n       GUDEKOTA, TQ: KUDLIGI,\n       DIST: BALLARI.\n\n2.     SMT.VANAJAKSHI @ MADHAVI\n       W/O MANTHESHA K.,\n       AND D/O HONNURAPPA,\n       AGED: ABOUT 28 YEARS,\n       OCC: HOUSEHOLD WORK,\n       R/O: HULIKUNTE VILLAGE,\n       TQ: KUDLIGI, DIST: BALLARI.\n\n                                          ... RESPONDENTS\n                                 3\n\n\n\n\n(BY SRI RAMESH CHIGARI, HCGP FOR R1;\n    SMT.ANURADHA DESHPANDE, ADVOCATE FOR R2)\n\n\n      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF\nCR.P.C., PRAYING TO QUASH THE FIR IN CRIME NO.6/2019 DATED\n11.01.2019 AND PROCEEDINGS PENDING ON THE FILE OF THE\nCIVIL JUDGE & JMFC COURT, KUDLIGI, BALLARI DIST., IN\nC.C.NO.872/2019 (P.C.R.NO.113/2018) FOR THE OFFENCES P/U/S\n323, 504, 506, 498-A OF IPC AND SEC. 3 & 4 OF DOWRY\nPROHIBITION ACT AND ALLOW THE ABOVE CRIMINAL PETITION.\n\n      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS\nDAY, THE COURT MADE THE FOLLOWING:\n\n                            ORDER\n\n     The petitioners are before this Court calling in question the\n\nproceedings in Criminal Case No.872/2019 registered for the\n\noffences punishable under Sections 323, 504, 506 and 498A of\n\nIPC and Sections 3 and 4 of Dowry Prohibition Act, 1961.\n\n\n     2. Heard the learned counsel appearing for the petitioners\n\nand the learned High Court Government Pleader appearing for\n\nthe 1st respondent-State and learned counsel appearing for the\n\n2nd respondent-complainant.\n\n\n     3. Brief facts leading to filing of the present petition, as\n\nborne out from the pleadings, are as follows:\n                                   4\n      Before embarking upon consideration of the case on its\n\nmerit, I deem it appropriate to notice the relationship between\n\nthe parties to the lis. The 2nd respondent is the complainant and\n\nis the wife of 1st petitioner-accused No.1. The 2nd petitioner is the\n\nsister of the 1st petitioner. The 3rd petitioner is the husband of\n\nthe 2nd petitioner. The 4th petitioner is the mother-in-law of the\n\ncomplainant. The 5th petitioner is the again the sister of the 1st\n\npetitioner. The 6th petitioner is the husband of the 5th petitioner,\n\nsister of the 1st petitioner. The 7th petitioner is the brother of the\n\n1st petitioner and the 8th petitioner is the son of petitioner Nos.2\n\nand 3. Marriage between the 2nd respondent-complainant and\n\nthe 1st petitioner takes place on 27.05.2017.\n\n\n      4. Alleging demand of dowry and several other instances of\n\ntorture being meted out by the accused, the complainant\n\nregisters a private complaint invoking Section 200 of Cr.P.C.,\n\npursuant to which, the learned Magistrate directs investigation\n\nto be conducted in terms of Section 156(3) of Cr.P.C. After\n\nconduct of investigation, the Police have also filed a charge sheet\n                                    5\n\n\n\n\nagainst the accused for the aforesaid offences. It is at that\n\njuncture, the petitioners knocked the doors of this Court in the\n\nsubject petition.\n\n\n     5. The learned counsel appearing for the petitioners would\n\ncontend that the complaint does not narrate any overt act being\n\nperformed or committed by the petitioners including the\n\nhusband and the mother-in-law. The other petitioners who do\n\nnot even reside with the complainant are dragged into these\n\nproceedings, which according to the learned counsel for the\n\npetitioners, is an abuse of the process of law.\n\n\n\n     6. On the other hand, the learned counsel Smt. Anuradha\n\nDeshpande, appearing for the 2nd respondent-complainant\n\nwould vehemently refute the submissions and contends that the\n\nallegations   are   clearly   against   all   the   accused   and   the\n\nstatements of eyewitnesses would vindicate the said allegations\n\nand would contend that the charge sheet has also been filed in\n                                       6\n\n\n\n\nthe matter and it is a matter of trial and this court should not\n\ninterfere at this juncture.\n\n\n      7. The learned High Court Government Pleader appearing\n\nfor respondent No.1-State would also toe the lines of the learned\n\ncounsel for the 2nd respondent-complainant to contend that\n\nthere are statements of eyewitnesses for demand of dowry by the\n\naccused from the parents' house of the complainant and would\n\ntherefore contend that it is for the accused to come out clean in\n\nthe trial.\n\n\n      8.     I    have   given   my   anxious   consideration   to   the\n\nsubmissions made by the learned counsel appearing for the\n\nparties and have perused the material on record.\n\n\n      9.         The afore-narrated fact of marriage between the\n\ncomplainant and the 1st petitioner is not in dispute. It is\n\ngermane to notice the private complaint which would touch\n\nupon the offences that are sought to be alleged against the\n\npetitioners. The private complaint reads as follows:\n                              7\n     "PRIVATE COMPLAINT U/S 200 OF CR.P.C\n     FILED ON BEHALF BY THE COMPLAINANT\n\n      I humbly submits as follows:\n      1.    I am born and brought up at Hulikunte village\nin Kudligi Taluk. I am having one elder sister and two\nyounger brothers. I am a graduate woman. The accused\nNo.1 is my husband and our marriage took place on 27-05-\n2017 at Hulikunte village in Kudligi Taluk before my house\nas per customs and traditions prevailing in our community.\n\n      2.     I submit during the time of marriage, my\nparents had given Rs.1,00,000/- as dowry, 15 Tola gold,\nRs.15,000/- towards cloth is given to the accused No.1 and\nall marriage expenses incurred on my parents.\n\n       3.    The accused No.1 is my husband, the accused\nNo.2 is elder sister of accused No.1, the accused No.3 is\nhusband of accused No.2, accused No.4 is mother of\naccused No.1,2,5 and 7, accused No.6 is husband of\naccused No.5 and accused No.8 is son of accused No.2 and\n3. All are residing in Aaladahalli village in Ballari Taluk.\n\n       4.    After my marriage I went to accused No.1's\nhouse at Aaladahalli village wherein I was resding with\naccused No.1, 2 and 3. Myself and accused No.1 are\nresiding in my husband's elder sister Hanumakka and\nHonnurswamy. The accused No.5 to 8 are visiting to my\nhouse daily by one way or other reason. I lead happy\nmarried life with the accused No.1 for a period of one two\nmonths. The accused persons specially accused No.3 had\ninstigated the other accused persons to give me mental and\nphysical harassments.     The accused No.3 is the person\nbehind the brain of the accused persons especially accused\nNo.1. They used to scold me in every instance for silly\nreasons. The accused persons with an common intention\nthey are not providing food properly.        There was a\nconspiracy between the accused persons against me. They\nclearly told me not to allow my parents to Aaladahalli\n                                   8\n\n\n\n\n     village. I requested my husband to accomadate separate\n     residential house because living in sister's house is not so\n     proper. In the month of October 2017 for silly reason of\n     washing cloths, the accused No.2 raised quarrel and\n     forcibly to go out from their house. Then I communicate this\n     matter to my husband. Then we shifted the family to\n     accused No.4 Shivamma's house wherein we are living with\n     Shivamma and Hanumesha i.e. accused No.7 by the side of\n     that house accused No.5 and 6 house was there. Then the\n     harassment was severe, accused No.1 completely neglected\n     me and he used to stay in the house of accused No.2 and 3\n     and you will be going to his job Ballari from the house of\n     accused No.2 and 3. Then living and leading life is very\n     horrible to me. I brought it to the notice of all the accused\n     persons without proper commodities how can I live. Then\n     my husband and all the accused persons gathered together\n     and scold in my filthy languages if you again questioned\n     me, we will kill you. It is their version without food and\n     shelter they forced me go out from their house. I intimated\n     the matter to my parents and they came and brought me to\n     Hulikunte village. Since then I am living here. In the month\n     of 29th July 2018 the accused No.1,2,3,7 and 8 had come\n     to Hulikunte village and they clearly disclosed their\n     demands i.e. further dowry of Rs.1,00,000/-and further\n     gold of 5 Tola from my parental house. My parents straight\n     away refused to give, then the above mentioned accused\n     persons told me if you failed to bring, we will go and lodge\n     complaint against you that "all of you assaulted us in\n     Hulikunte". We did not bother the wordings of the accused\n     persons. Orally we informed this fact to the Gudekote\n     police."\n\n\n     10. The complaint afore-quoted has only verification part\n\nand not an affidavit as is required in law. The issue with regard\n\nto whether the complaint could be entertained on the strength of\n\nverification or an affidavit is dealt with by the Hon'ble Apex\n                                        9\n\n\n\n\nCourt in the case of PRIYANKA SRIVASTAVA & ANOTHER VS.\n\nSTATE OF UTTAR PRADESH & OTHERS1, wherein it has held\n\nas follows :\n\n                "30. In our considered opinion, a stage has come in\n         this country where Section 156(3) Cr.P.C. applications are\n         to be supported by an affidavit duly sworn by the applicant\n         who seeks the invocation of the jurisdiction of the\n         Magistrate. That apart, in an appropriate case, the learned\n         Magistrate would be well advised to verify the truth and\n         also can verify the veracity of the allegations. This affidavit\n         can make the applicant more responsible. We are compelled\n         to say so as such kind of applications are being filed in a\n         routine manner without taking any responsibility\n         whatsoever only to harass certain persons. That apart, it\n         becomes more disturbing and alarming when one tries to\n         pick up people who are passing orders under a statutory\n         provision which can be challenged under the framework of\n         said Act or under Article 226 of the Constitution of India.\n         But it cannot be done to take undue advantage in a criminal\n         court as if somebody is determined to settle the scores.\n\n                31. We have already indicated that there has to be\n         prior applications under Section 154(1) and 154(3) while\n         filing a petition under Section 156(3). Both the aspects\n         should be clearly spelt out in the application and necessary\n         documents to that effect shall be filed. The warrant for\n         giving a direction that an the application under Section\n         156(3) be supported by an affidavit so that the person\n         making the application should be conscious and also\n         endeavour to see that no false affidavit is made. It is\n         because once an affidavit is found to be false, he will be\n         liable for prosecution in accordance with law. This will\n         deter him to casually invoke the authority of the Magistrate\n         under Section 156(3). That apart, we have already stated\n         that the veracity of the same can also be verified by the\n\n1\n    (2015) 6 SCC 287\n                                    10\n\n\n\n\n     learned Magistrate, regard being had to the nature of\n     allegations of the case. We are compelled to say so as a\n     number of cases pertaining to fiscal sphere, matrimonial\n     dispute/family disputes, commercial offences, medical\n     negligence cases, corruption cases and the cases where\n     there is abnormal delay/laches in initiating criminal\n     prosecution, as are illustrated in Lalita Kumari are being\n     filed. That apart, the learned Magistrate would also be\n     aware of the delay in lodging of the FIR.\n\n           32. The present lis can be perceived from another\n     angle. We are slightly surprised that the financial institution\n     has been compelled to settle the dispute and we are also\n     disposed to think that it has so happened because the\n     complaint cases were filed. Such a situation should not\n     happen."\n     11. The Apex Court in the case of PRIYANKA SRIVASTAVA\n\nhas delineated as to why an affidavit would be necessary for a\n\nprivate complaint to be filed and an investigation to be directed\n\nby the learned Magistrate under Section 156(3) Cr.P.C. The\n\nreason assigned therein for directing filing of such an affidavit is\n\nreiterated by the Apex Court in the case of BABU VENKATESH\n\nAND OTHERS Vs. STATE OF KARNATAKA AND ANOTHER\n\nreported in (2022) SCC Online SC 200.\n\n\n     12. Admittedly, in the case at hand, though the complaint\n\ndoes not seek direction for investigation, nonetheless, the\n                                 11\n\n\n\n\nlearned Magistrate has referred the matter for investigation\n\nunder Section 156(3) of the Cr.P.C. Non-filing of an affidavit\n\nwould vitiate entire proceedings.\n\n\n     13. The relationship of parties is narrated hereinbefore.\n\nThe 1st petitioner is accused No.1, husband of the complainant\n\nand others are other members of the family. The complaint, if\n\nperused, would clearly indicate that the allegations in the\n\ncomplaint are only against the husband.      Instances of torture\n\nmeted out against the complainant, even in the summary of the\n\ncharge sheet filed pursuant to the investigation, are also against\n\nthe husband. The matter is required to be remitted back to the\n\nhands of the learned Magistrate to apply his mind and then\n\ndirect investigation under Section 156(3) of the Cr.P.C. The\n\nlearned Magistrate is required to consider the contents of the\n\ncomplaint as to whether there are allegations against every other\n\nmember of the family and then direct investigation to be\n\nconducted.\n                                        12\n         14. It is for the learned Magistrate to apply his judicious\n\nmind while considering the complaint and directing investigation\n\nto be conducted by the Police. Since the complaint falls foul of\n\nthe judgment rendered by the Apex Court in the cases of\n\nPRIYANKA SRIVASTAVA AND BABU VENKATESH, further\n\nproceedings taken thereto would all be rendered a nullity in law.\n\n\n         15. In identical circumstances, following the judgment of\n\nthe Apex Court in the case of PRIYANKA SRIVASTAVA, a Co-\n\nordinate Bench of this Court in the case of SRI KISOR PIRAJI\n\nKHARAT AND OTHERS v. RAJESHWAR REDDY KARNATI\n\nVENKATA AND ANOTHER2 has held as follows:\n\n                   "2.Respondent No.1 has filed a private complaint in\n            PCR No.1547/2016. The learned Magistrate has referred\n            the complaint for investigation under Section 156(3) of\n            Cr.P.C. to the jurisdictional police for investigation and\n            report. The said order of referring the complaint to the\n            police is called in question before the Court. Though the\n            learned counsel has also challenged the reference order\n            on various other grounds, in my opinion the order is not\n            technically sound. In view of the decision rendered by the\n            Apex Court reported in (2015)6 SCC 287 in the case of\n            PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF\n            UTTAR PRADESH AND OTHERS, the Apex Court has\n2\n    Crl.P.No.5016 of 2017 dated 9th January, 2018\n                          13\n\n\n\n\ncategorically observed at paragraphs 30 and 31 in the\nfollowing manner:\n\n           "30. In our considered opinion, a stage\n    has come in this country where Section 156(3)\n    Cr.P.C. applications are to be supported by an\n    affidavit duly sworn by the applicant who seeks\n    the invocation of the jurisdiction of the\n    Magistrate. That apart, in an appropriate case,\n    the learned Magistrate would be well advised to\n    verify the truth and also can verify the veracity\n    of the allegations. This affidavit can make the\n    applicant more responsible. We are compelled to\n    say so as such kind of applications are being\n    filed in a routine manner without taking any\n    responsibility whatsoever only to harass certain\n    persons. That apart, it becomes more disturbing\n    and alarming when one tries to pick up people\n    who are passing orders under a statutory\n    provision which can be challenged under the\n    framework of the said Act or under Article 226\n    of the Constitution of India. But it cannot be\n    done to take undue advantage in a criminal\n    court as if somebody is determined to settle the\n    scores.\n\n           31. We have already indicated that there\n    has to be prior applications under Sections\n    154(1) and 154(3) while filing a petition under\n    Section 156(3). Both the aspects should be\n    clearly spelt out in the application and\n    necessary documents to that effect shall be\n    filed. The warrant for giving a direction that an\n    application under Section 156(3) be supported\n    by an affidavit is so that the person making the\n    application should be conscious and also\n    endeavour to see that no false affidavit is made.\n    It is because once an affidavit is found to be\n    false, he will be liable for prosecution in\n    accordance with law. This will deter him to\n                           14\n\n\n\n\n    casually invoke the authority of the Magistrate\n    under Section 156(3). That apart, we have\n    already stated that the veracity of the same can\n    also be verified by the learned Magistrate,\n    regard being had to the nature of allegations of\n    the case. We are compelled to say so as a\n    number of cases pertaining to fiscal sphere,\n    matrimonial        dispute/family       disputes,\n    commercial offences, medical negligence cases,\n    corruption cases and the cases where there is\n    abnormal delay/laches in initiating criminal\n    prosecution, as are illustrated in Lalita Kumari\n    are being filed. That apart, the learned\n    Magistrate would also be aware of the delay in\n    lodging of the FIR."\n      3. In view of the above said dictum of the Apex\nCourt, it is clear that the complainant has to file an\naffidavit about the efforts made by him under Sections\n154(1) and 154(3) of Cr.P.C. and also the affidavit should\ncontain the truthfulness and the contents of the\ncomplaint. In the absence of such affidavit being filed, the\nMagistrate gets no jurisdiction to refer the private\ncomplaint for investigation under Section 156(3) of Cr.P.C.\n       4. The learned counsel has strongly contended\nbefore the Court that even considering the entire contents\nof the complaint there is no allegations which constitute\nany offence under the provisions of Sections 403, 406,\n415 r/w 34 of IPC. I do not want to express anything so\nfar as this aspect is concerned., because it is the\njurisdictional Magistrate, who has to apply his judicious\nmind to find out whether there are any allegations in the\ncomplaint which constitute any offence against the\npetitioners and thereafter pass appropriate orders in\naccordance with law. The Magistrate has to go through\nthe decision noted above and can take appropriate action\nin accordance with law. Therefore, the reference order is\nliable to be quashed and consequently registration of the\n                                      15\n\n\n\n\n            First Information Report and all further proceedings\n            therein are required to be quashed. Hence, the following\n                                         ORDER\n\n                         The petition is allowed. The order\n                   passed by the learned Magistrate dated\n                   23.2.2016 referring the complaint under\n                   Section 156(3) of Cr.P.C. and registration of\n                   First   Information    Report    in    Crime\n                   No.63/2017 and all further investigation\n                   therein are hereby quashed.              The\n                   Magistrate can pass appropriate orders in\n                   accordance with law on the complaint\n                   lodged by respondent No.1 taking into\n                   consideration the observation of the\n                   Hon'ble Apex Court in the above said case."\n\n\nIn the light of the judgments of the Apex Court and that of the\n\nCo-ordinate Bench of this Court, the petition deserves to\n\nsucceed albeit in part.\n\n\n     16. For the aforesaid reasons, I pass the following:\n\n                                ORDER\n     (i)       Criminal Petition is allowed in part.\n\n     (ii)      Impugned     proceedings     in   C.C.No.872        of   2019\n               pending before the Civil Judge and JMFC, Kudligi\n               stand quashed.\n                                        16\n        (iii)   The   matter   is   remitted   back   to   the   learned\n                Magistrate to apply his judicious mind and take the\n                proceedings further.\n\n\n        In view of disposal of the petition, I.A.No.1/2019 does not\nsurvive for consideration and accordingly, stands disposed.\n\n\n\n\n                                                 SD\n                                                JUDGE\n\n\n\nbkp\nCT:MJ