Chandra Poojari Vs. State of Karnataka - Court Judgment

Excerpt:
- section 24: [anand byrareddy, j] application under section 24 for maintenance - marriage performed as per the provisions of the portuguese civil code application filed under section 24 of the hindu marriage act for maintenance by wife before the family court at belgaum objections by the petitioner/husband with regard to jurisdiction of the family court at belgaum to entertain the application - rejection of objections - challenge to question whether the portuguese family law or hindu law would be applicable to the parties and if the portuguese family law is applicable, which is the court having jurisdiction to decide the matter - held, there is no dispute that the parties were married according to the portuguese family law, that is applicable within the state of goa, and had set up their matrimonial home at fatorda, margao. it is the portuguese family law which would apply, in so far as their matrimonial relationship is concerned. the fact that the petitioner and the respondent underwent a hindu marriage ceremony at a later point of time, would not have the effect of the parties becoming subject to the provisions of the hindu marriage act. the hindu marriage act not having been extended to the state of goa as on the date of their marriage i.e., 26.12.2002 the said act and the provisions thereunder would not apply. further, a suit for divorce by parties governed by the portuguese family law within the state of goa, can file the same in the court of domicile within goa or in the court having jurisdiction over the place where the plaintiff resides (also within the state of goa). it cannot be construed that a plaintiff who is residing outside the state of goa could also file a suit or petition for divorce outside the state of goa, as in the present case, in a place where he or she is residing outside goa. the courts, in the rest of india, would have no jurisdiction to entertain suit (petition) under the provisions of the portuguese family law pertaining to divorce. the laws relating to succession and marriage might not be the same all over the country and different areas in the state might have different laws in respect of those matters. though the respondent is now living at belgaum, on the premise that if there was a possibility of reconciliation, her domicile would be that of the petitioner at goa, it can safely be said that a suit by the respondent would lie in the state of goa in terms of article 5 before the court of domicile. in view of this, it can be said that the portuguese family law would be the court of domicile, within the state of goa. impugned order was quashed. - 3(ix) is satisfied in this case. state of karnataka (sic) that in that case the complainant had failed to establish that he belongs to scheduled caste which was a condition precedent and while discharging the accused for the offence under s. 448 and 506 are not satisfied. he has merely stated that if they give evidence, it will lead to bad consequences. therefore, viewed from any angle, no requirement to constitute any offence as alleged by the prosecution is satisfied. but the minimum requirement of law is not satisfied by the complainant.order1. this petition is filed under sec. 482, cr.p.c. to quash the charge-sheet and dismiss the complaint in spl. case no. (sc & st) 60/96 for the alleged offence under sec. 3(x) of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989, (for short 'the act') and ss. 323, 448, 506 of ipc pending on the file of the sessions judge, bangalore city.2. the brief facts of the case are that one k. puttaswamy, commercial tax officer, lodged a complaint with the respondent-police on 2-3-96 at about 8.45 p.m. on the complaint received through appeal alleging that on 28-12-95 at about 12 noon appointment was fixed by the complainant to produce the accounts for the year 1992-93. the group 'd' worker was directed to hold the parties at the door since the complainant was engaged in signing cheques and challans. meanwhile the petitioner rushed to the chamber by pushing away the group 'd' employee and abused the complainant saying ' ' and threatened that no one should give any evidence regarding the incident. if any evidence is given, they will face consequences. on the basis of this report the police registered a case in cr. no. 80/96 and after completing the investigation charge-sheet was filed before the said court. the learned spl. court has taken cognizance of the offence and directed to issue process to the petitioner. the said order is questioned in this petition.3. heard the learned counsel for the petitioner and the learned hcgp for the respondent.4. the learned counsel for the petitioner has challenged the order on 5 grounds; viz. (1) the complaint came to be lodged belatedly; (2) that there was no public view where the alleged incident had taken place; (3) calling a person by particular caste if it is true is not an offence; (4) the petitioner was not aware of the fact that the complainant belongs to scheduled caste, and (5) he also submitted that the materials placed on record are not sufficient to constitute offences under sec. 323, 448 and 506 ipc.5. however, the learned h.c.g.p. submitted all this will have to be considered by the trial court after the trial.6. from a perusal of the complaint it is clear that the incident had taken place on 28-12-95 at 12 noon in the chamber of the complainant who was working as a c.t.o. but the report came to be filed to the police on 2-3-96 i.e. after a lapse (sic) as to why there was inordinate delay in lodging the complaint. however, it appears that the complainant has stated in the complaint that after receipt of the permission to prosecute the petitioner, he lodged the complaint on that day. but there is nothing to indicate that such a sanction is necessary to prosecute the petitioner.7. to attract the provisions of sec. 3 of the act, it is necessary that it should be in a place where public could view the incident. in support of this argument, the learned counsel for the petitioner has drawn my attention to the decision rendered by this court in cr. p. 1449/95 between b. n. channegowda v. state of karnataka dt. 27-1-1997, wherein this court has held :'it is also stated that all these words were uttered in the private chamber of the petitioner and not in public view and no other person was present.'in this case also the complaint does not disclose that the occurrence had taken place in public view.8. it is further argued that calling a particular person in the name of the caste to which he belongs also is not an offence and to substantiate that argument, he also placed reliance on a decision rendered by allahabad high court reported in (1981 cri. law cases 1). in that case also, the accused therein called the complainant as 'chammar' and in actual fact the complainant also belonged to that caste. therefore, it is held merely calling someone by his caste does not attract the provisions of this act. be that as it may, the petitioner it appears was not aware of the fact that the complainant belonged to that particular caste. therefore, it is now necessary to find out whether calling a person by a particular caste to which he belongs without knowing that he belongs to that caste would attract the provisions of this act.9. the division bench of this court in cr. a. 148/94, state of karnataka v. mahantappa, held following the decision of the supreme court reported in air 1966 sc 45 (sic) that since no evidence was placed before the court that the accused was conscious of the fact that the act was committed knowing the victim belongs to scheduled caste, the act would not apply to the facts of that case and the accused will have to be acquitted of the offence punishable under s. 2(5) of the act.10. from the reading of the complaint or the statements of the witnesses cited by the prosecution, nowhere it is stated that the petitioner was aware of the fact that the complainant belonged to scheduled caste. admittedly, the petitioner was a stranger to that office. from the statement of the peon attached to the chamber of the complainant it is clear that he had seen him for the first time on that particular day. it is true that the petitioner is practising as a chartered accountant and went to the chamber to submit the accounts of his clients. unless it is made out that the petitioner was aware of the fact that the complainant belonged to that caste and with an intention to insult him, he used that word, it cannot be said that there is mens rea on the part of this petitioner to insult him by calling by that name. therefore, as rightly submitted by the learned counsel for the petitioner, none of the requirements of s. 3(ix) is satisfied in this case.11. coming to the other offence alleged against the petitioner, this court has held in smt. b. k. susheela rao v. state of karnataka (sic) that in that case the complainant had failed to establish that he belongs to scheduled caste which was a condition precedent and while discharging the accused for the offence under s. 7(1)(c) the court has come to the conclusion that the charges under ss. 504 and 506 were incidental to the main charge and an off-shoot and that the material before court would not justify the proceedings even with regard to subsidiary offences. in this case also the requirement of ss. 448 and 506 are not satisfied. the petitioner entered into the public office where the complainant was sitting. therefore, section 448 is not attracted. similarly, there is no threat to cause danger to the life of the complainant or the witnesses. he has merely stated that if they give evidence, it will lead to bad consequences. that is not the requirement of section 506, ipc. therefore, viewed from any angle, no requirement to constitute any offence as alleged by the prosecution is satisfied.12. the learned counsel for the state vehemently argued that these things will have to be considered by the trial court. but the minimum requirement of law is not satisfied by the complainant.13. the entire case of the prosecution if taken as a whole does not constitute an offence. this court can interfere with the order of taking cognizance under s. 482, cr.p.c. to avoid unnecessary delay and inconvenience being caused to the parties.for the foregoing reasons, this petition is allowed. the entire proceedings is quashed and the petitioner is discharged, and the complaint is dismissed.14. petition allowed.

Judgment:
ORDER

1. This petition is filed under Sec. 482, Cr.P.C. to quash the charge-sheet and dismiss the complaint in Spl. Case No. (SC & ST) 60/96 for the alleged offence under Sec. 3(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short 'the Act') and Ss. 323, 448, 506 of IPC pending on the file of the Sessions Judge, Bangalore City.

2. The brief facts of the case are that one K. Puttaswamy, Commercial Tax Officer, lodged a complaint with the respondent-police on 2-3-96 at about 8.45 p.m. on the complaint received through appeal alleging that on 28-12-95 at about 12 noon appointment was fixed by the complainant to produce the accounts for the year 1992-93. The Group 'D' worker was directed to hold the parties at the door since the complainant was engaged in signing cheques and challans. Meanwhile the petitioner rushed to the chamber by pushing away the Group 'D' employee and abused the complainant saying ' ' and threatened that no one should give any evidence regarding the incident. If any evidence is given, they will face consequences. On the basis of this report the police registered a case in Cr. No. 80/96 and after completing the investigation charge-sheet was filed before the said Court. The learned Spl. Court has taken cognizance of the offence and directed to issue process to the petitioner. The said order is questioned in this petition.

3. Heard the learned Counsel for the petitioner and the learned HCGP for the respondent.

4. The learned counsel for the petitioner has challenged the order on 5 grounds; viz. (1) the complaint came to be lodged belatedly; (2) that there was no public view where the alleged incident had taken place; (3) calling a person by particular caste if it is true is not an offence; (4) the petitioner was not aware of the fact that the complainant belongs to Scheduled Caste, and (5) he also submitted that the materials placed on record are not sufficient to constitute offences under Sec. 323, 448 and 506 IPC.

5. However, the learned H.C.G.P. submitted all this will have to be considered by the trial Court after the trial.

6. From a perusal of the complaint it is clear that the incident had taken place on 28-12-95 at 12 noon in the Chamber of the complainant who was working as a C.T.O. But the report came to be filed to the police on 2-3-96 i.e. after a lapse (sic) as to why there was inordinate delay in lodging the complaint. However, it appears that the complainant has stated in the complaint that after receipt of the permission to prosecute the petitioner, he lodged the complaint on that day. But there is nothing to indicate that such a sanction is necessary to prosecute the petitioner.

7. To attract the provisions of Sec. 3 of the Act, it is necessary that it should be in a place where public could view the incident. In support of this argument, the learned counsel for the petitioner has drawn my attention to the decision rendered by this Court in Cr. P. 1449/95 between B. N. Channegowda v. State of Karnataka dt. 27-1-1997, wherein this Court has held :

'It is also stated that all these words were uttered in the private chamber of the petitioner and not in public view and no other person was present.'

In this case also the complaint does not disclose that the occurrence had taken place in public view.

8. It is further argued that calling a particular person in the name of the caste to which he belongs also is not an offence and to substantiate that argument, he also placed reliance on a decision rendered by Allahabad High Court reported in (1981 Cri. Law Cases 1). In that case also, the accused therein called the complainant as 'chammar' and in actual fact the complainant also belonged to that caste. Therefore, it is held merely calling someone by his caste does not attract the provisions of this Act. Be that as it may, the petitioner it appears was not aware of the fact that the complainant belonged to that particular caste. Therefore, it is now necessary to find out whether calling a person by a particular caste to which he belongs without knowing that he belongs to that caste would attract the provisions of this Act.

9. The Division Bench of this Court in Cr. A. 148/94, State of Karnataka v. Mahantappa, held following the decision of the Supreme Court reported in AIR 1966 SC 45 (sic) that since no evidence was placed before the Court that the accused was conscious of the fact that the act was committed knowing the victim belongs to Scheduled Caste, the act would not apply to the facts of that case and the accused will have to be acquitted of the offence punishable under S. 2(5) of the Act.

10. From the reading of the complaint or the statements of the witnesses cited by the prosecution, nowhere it is stated that the petitioner was aware of the fact that the complainant belonged to Scheduled Caste. Admittedly, the petitioner was a stranger to that office. From the statement of the peon attached to the Chamber of the complainant it is clear that he had seen him for the first time on that particular day. It is true that the petitioner is practising as a Chartered Accountant and went to the Chamber to submit the accounts of his clients. Unless it is made out that the petitioner was aware of the fact that the complainant belonged to that caste and with an intention to insult him, he used that word, it cannot be said that there is mens rea on the part of this petitioner to insult him by calling by that name. Therefore, as rightly submitted by the learned counsel for the petitioner, none of the requirements of S. 3(ix) is satisfied in this case.

11. Coming to the other offence alleged against the petitioner, this Court has held in Smt. B. K. Susheela Rao v. State of Karnataka (sic) that in that case the complainant had failed to establish that he belongs to Scheduled Caste which was a condition precedent and while discharging the accused for the offence under S. 7(1)(c) the Court has come to the conclusion that the charges under Ss. 504 and 506 were incidental to the main charge and an off-shoot and that the material before Court would not justify the proceedings even with regard to subsidiary offences. In this case also the requirement of Ss. 448 and 506 are not satisfied. The petitioner entered into the public office where the complainant was sitting. Therefore, Section 448 is not attracted. Similarly, there is no threat to cause danger to the life of the complainant or the witnesses. He has merely stated that if they give evidence, it will lead to bad consequences. That is not the requirement of Section 506, IPC. Therefore, viewed from any angle, no requirement to constitute any offence as alleged by the prosecution is satisfied.

12. The learned counsel for the State vehemently argued that these things will have to be considered by the trial Court. But the minimum requirement of law is not satisfied by the complainant.

13. The entire case of the prosecution if taken as a whole does not constitute an offence. This Court can interfere with the order of taking cognizance under S. 482, Cr.P.C. to avoid unnecessary delay and inconvenience being caused to the parties.

For the foregoing reasons, this petition is allowed. The entire proceedings is quashed and the petitioner is discharged, and the complaint is dismissed.

14. Petition allowed.