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CRL.P. No.7129/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2019
BEFORE
THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR
R
CRIMINAL PETITION No.7129 OF 2018
BETWEEN :
SRI. FAISAL AHMED KHAN
S/O LATE NAZIR AHMED KHAN
AGED ABOUT 50 YEARS
R/AT NO.1630, MUSLIM BLOCK
HUNASUR-571 105
MYSURU DISTRICT ... PETITIONER
(BY SHRI. FAISAL AHMED KHAN, PARTY-IN-PERSON)
AND :
1. THE STATE OF KARNATAKA
MAHILA POLICE STATION
MYSURU, REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001
2. SMT. NAZIA ASMA
W/O FAISAL AHMED KHAN
D/O ABDUL GAFAR SHARIFF
AGED ABOUT 35 YEARS
R/AT NO.2339
21ST WEST CROSS
ASHOKA ROAD
LASHKAR MOHALLA
MYSORE-570 004 ... RESPONDENTS
(BY SHRI. S. RACHAIAH, HCGP FOR R-1;
SHRI. S.R. HEGDE HUDLAMANE, ADVOCATE FOR R-2)
....
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CRL.P. No.7129/2018
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO 1. 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, MYSORE. 2. QUASH THE ORDER
DATED 10/8/2018, PASSED BY THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, MYSORE IN C.C.NO.923/2012, ON I.A. FILED BY
THE PETITIONER FOR DISCHARGE THAT FOR THE REASONS
STATED ABOVE.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.09.2019, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
ORDER
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 & 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 & JMFC, Mysuru;
b) Quash the order dated 10/8/2018 passed by the IV
Addl. Senior Civil Judge & 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.”
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CRL.P. No.7129/2018
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.
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CRL.P. No.7129/2018
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.
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CRL.P. No.7129/2018
6. Shri.Faizal Ahmed Khan, petitioner/party-in-person
urged following grounds in support of this petition:
• that complainant was married with one Asif Ali
Farooqi, on 29th August 2003, prior to marrying him
on 21st July 2008;
• 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;
• 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;
• 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.Mis. No.69/2012 on the file of Principal
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CRL.P. No.7129/2018
I Civil Judge and JMFC, Mysore. In the order dated
5th December 2016, the learned Trial Judge has
recorded in paragraphs No. 38 and 39 thereof that
Ex.R7 had proved that complainant had married for
the third time and rejected the petition with costs;
• that complainant also initiated proceedings in
C.Mis.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;
• that petitioner filed O.S. No.55/2015 on the file of
Judge, Family Court at Mysore seeking a declaration
that his marriage with complainant was null and
void. By judgment and decree dated 6th October
2018 the Family Court has declared petitioner’s
marriage with the complainant as null and void;
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CRL.P. No.7129/2018
• that complainant has married for the third time with
one Asrar Ahmed and delivered a baby after
marrying him;
• that complainant challenged the order dated
5th December 2016 passed in C.Mis. No.69/2012 in
Criminal Appeal No.256/2016 in the Court of
IV Additional Sessions Judge, Mysore. The learned
Appellate Judge while dismissing the said appeal
with costs on 16th September 2017 has recorded a
finding that complainant(P.W.1) has admitted that
petitioner was working in Kuwait, UAE three years
prior to the date of filing of the petition on 27th April
2012. It is also recorded that as per complainant’s
sworn statement (Ex.P112) her relation came to an
end with the petitioner on 3rd August 2011;
• that though complainant’s relation came to an end
in August 2011, complainant with malafide intention
got registered FIR No.22/2012 on 7th April 2012
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alleging commission of offences under Sections
498A and 506 of IPC against six accused by filing a
false complaint. Police after investigation have filed
charge-sheet only against petitioner;
Petitioner, party-in-person urged that in the light of
the sequence of events narrated above, the entire
complaint averments are false and accordingly prayed
for allowing this petition.
7. Opposing the petition, Shri.Hegde Hudlamane,
learned Advocate for the complainant submitted that the
complaint contains specific overt-acts against petitioner
and others. However, police have filed charge-sheet
against petitioner, which prima facie establishes that
petitioner has harassed the complainant. He contended
that marriage between petitioner and the complainant is
not in dispute. All contentions urged by petitioner are
subject to proof and therefore, trial is necessary.
Accordingly, he prayed for dismissal of this petition.
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8. Learned HCGP also argued opposing the petition.
9. I have carefully considered rival contentions and
perused the records.
10. Undisputed facts of the case are, petitioner was
married with complainant in July 2008. Even after her
marriage with the petitioner, complainant was defending
the petition for restitution of conjugal rights filed by her
previous husband Asif Farooqi. Within about three years
after marriage, her relation with petitioner came to an
end in August 2011 as per her own admission recorded
by the learned Sessions Judge in paragraph No. 14 of his
order in Criminal Appeal No. 256/2016. There is yet
another judicial finding that complainant had contracted
into third marriage with one Asrar Ahmed and given birth
to a child. The order also discloses that complainant
initiated proceedings under the Domestic Violence Act
(‘DV Act’ for short) in April 2012. The learned Sessions
Judge has also recorded that it was proved by Ex.R7 that
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CRL.P. No.7129/2018
complainant had married for third time and ultimately,
dismissed the petition. The Criminal Appeal filed thereon
has also been dismissed with costs.
11. Not being satisfied, complainant initiated
proceedings under Section 125 Cr.P.C. in the year 2014.
(C.Mis.No.526/2014) seeking maintenance for her and
the child. The said petition has also been rejected so far
as complainant’s claim was concerned.
12. Having thus suffered in the hands of complainant,
petitioner also filed a private complaint in
PCR No.1085/2016 alleging inter alia that complainant
had suppressed her earlier marriage with Asif Ali Farooqi
and when questioned about the same, she has filed the
instant false complaint. Thereafter, she has married for
the third time. With the said allegations, petitioner
sought action against complainant and three others for
commission of offences punishable under Sections 120A,
120B, 107, 108, 494, 496 read with Section 34 IPC. The
learned Magistrate referred the case for investigation
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CRL.P. No.7129/2018
under Section 156(3) Cr.P.C. Accordingly, FIR
No.149/2016 has been registered on 11th August 2016 in
Narasimharaja Police Station, Mysuru City. Records
further disclose that complainant and other accused
unsuccessfully challenged the said FIR before this Court
in Criminal Petition No.1182/2017.
13. Petitioner’s application under Section 239 Cr.P.C.
seeking discharge has been dismissed by the learned trial
Judge by recording that presence of accused as on the
date of incident and whether marriage is void, cannot be
considered at the stage of discharge.
14. A conspectus of facts narrated by the petitioner and
the undisputed facts which can be gathered from the
records lead to an irresistible inference that though
complaint is filed alleging commission of offence under
Section 498A IPC, it is, in fact the petitioner who has
suffered an untold misery in the hands of the
complainant.
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15. It cannot be gainsaid that disclosure of a previous
subsisting marriage causes immense mental pain and
agony to a husband.
16. Complainant has, though unsuccessfully, driven the
petitioner to various Courts unabatedly. It started with
complainant initiating proceedings under the provisions
of DV Act followed by proceedings under Section 125
Cr.P.C. Judicial findings have been recorded by the
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
the learned Sessions Judge while dismissing the appeal.
17. 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 the petitioner. She
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has admitted this fact in proceedings before the learned
Magistrate in proceedings under Section 125 Cr.P.C.
18. This is a classic case in which a complainant by
initiating criminal proceedings under Section 125 Cr.P.C
and Section 498A IPC against the petitioner has abused
the said provisions.
19. It is alleged in the complaint that:
• petitioner, his mother and sisters were assaulting
the complainant;
• that petitioner and his sister demanded
Rs.6,00,000/- to purchase a car failing which they
threatened that she would be divorced;
• that petitioner and his family members insulted her
by calling her as ‘call girl’;
• that they threatened to kill the complainant by
pouring Kerosene if immovable property was not
given;
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• that she was not permitted to speak to her family
members on phone;
• that on 03.08.2011 her husband confined her in a
room and other accused namely Faizal, Anjum,
Shejan Begum and Afzar dragged her to the
kitchen, poured kerosene and attempted to set her
ablaze. However, she escaped and locked herself in
a room. Later Anjum told her that though she has
escaped the attempt, she would be burnt the next
time and left for Mysore;
• that later Faizal attempted to hang her to a fan (sic.
Ceiling fan) and caused injuries to her;
• that Faizal tried to make her fall from a Motor Cycle
in which she sustained injuries and her father got
her treated in Mysore;
• that on 13.03.2012, in a Panchayath arranged in
her house, her father and complaint were abused
and threatened to be killed. As a result, her father
suffered mental set-back.
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20. It is relevant to note that though the complaint
contains the allegations recorded above, there is
interpolation with regard to the date 03.08.2011, 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 Faizal made an attempt to hang
her to a Ceiling fan. In the following sentence, it is stated
that Faizal made her fall from a motor cycle and tried to
kill her. The two allegations that Faizal attempted to
hang the complainant and thereafter made her fall from
the motor cycle contradict each other. If Faizal had
really attempted to hang her, how did she escape from
his clutches? No details are forthcoming in this behalf.
However, even if it is assumed that the said allegation
were true, it is not understandable why she sat on
Faisal’s motor cycle.
22. Thus, the Complaint is full of unbelievable and self
contradicting allegations. The first allegation of demand
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for Rs.3,00,000/- is said to have been made jointly by
petitioner and his family members. The second allegation
regarding demand of money to purchase a car is alleged
jointly against petitioner and his sisters. Thus all
allegations in the complaint are omnibus in nature and in
the least, made jointly with other accused and there are
no specific against the petitioner.
23. After investigation, admittedly police have not filed
charge-sheet against accused No.2 to 6 namely
Shahjahan Begum, Afzal Ahmed Khan, Parveez Ahamed,
Anjum Nazeer and Siddique. Neither the prosecution nor
the complainant have placed any other material which
may suggest commission of any of the alleged criminal
act/s by the petitioner. Therefore, it can be safely
concluded that allegations against petitioner are designed
to harass him .
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24. In the light of the above discussion, this petition
merits consideration and deserves to be allowed. Hence,
the following:
ORDER
(a) Petition is allowed.
(b) Criminal Proceedings in C.C.No.923/2012
arising out of Crime No.22/2012 pending on
the file of IV Additional Senior Civil Judge, &
JMFC, Mysuru, are quashed.
(c) Second respondent is directed to pay a cost of
Rs.25,000/- (Rupees Twenty Five Thousand)
to the petitioner.
25. In view of disposal of this petition,
I.A. No.3/2019 does not survive for consideration and the
same is disposed of.
Sd/-
JUDGE
SPS
