Satyan Shantigram and ors. Vs. State of Karnataka by S.H.O. and anr. - Court Judgment

Excerpt:
code of criminal procedure, 1973 - section 482 - indian penal code, 1860 - section 498-a - dowry prohibition act, 1961 - sections 3 and 4 -offences under - compounding of offences - decree of divorce granted by the court of oklahama putting an end to the relationship of husband and wife between the 1st petitioner and complainant - petitioners prayer for quashing the proceedings - exercise of inherent powers under section 482 criminal procedure code by the high court -held, when the marital tie is broken by virtue of the decree passed for dissolution of the marriage by the court of oklahama, the relationship that existed ceased to exist and invoking the provisions of section 498-a ipc does not arise - in view of amicable settlement between the parties in respect of dowry demand the offence.....orderhuluvadi ramesh, j.1. petitioners have sought for quashing of the proceedings pending before the iaddl. cmm, bangalore in cc 426/2003 regarding taking cognizance of offence and issuing process for the offence under section 498a, ipc is concerned.2. heard the counsel for the petitioners and the government pleader. counsel representing the other respondent is not present.3. brief facts are: the 2nd petitioner is a native of bangalore. one dwarakanath is the husband of the 2nd petitioner. he was working as an assistant manager in indian bank, jayanagar branch, bangalore. the 1st petitioner is the son of the 2nd petitioner. after his graduation in engineering, he went to usa i.e., to the state of oklahama. the daughter of the 2nd accused / petitioner- usha dwarakanath also worked in the.....

Judgment:
ORDER

Huluvadi Ramesh, J.

1. Petitioners have sought for quashing of the proceedings pending before the IAddl. CMM, Bangalore in CC 426/2003 regarding taking cognizance of offence and issuing process for the offence under Section 498A, IPC is concerned.

2. Heard the counsel for the petitioners and the Government Pleader. Counsel representing the other respondent is not present.

3. Brief facts are: The 2nd petitioner is a native of Bangalore. One Dwarakanath is the husband of the 2nd petitioner. He was working as an Assistant Manager in Indian Bank, Jayanagar Branch, Bangalore. The 1st petitioner is the son of the 2nd petitioner. After his graduation in Engineering, he went to USA i.e., to the State of Oklahama. The daughter of the 2nd accused / petitioner- Usha Dwarakanath also worked in the US A in connection with her employment. The husband of the 3rd accused is the 4th accused who is employed in WIPRO Company. The 1st accused / petitioner is married to one Ranjitha daughter of one S Prakash. After marriage Ranjitha joined her husband at Oklahama, USA and lead marital life for some time. Differences arose later. According to the petitioner, Ranjitha was not keeping good health through out and without any rhyme or reason she used to quarrel with him. Apart from that, Ranjitha also suffered from an incurable skin disease. In this context and due to her arrogant behaviour, the 1st petitioner had applied for dissolution of the marriage before the District Court for Tulsa County, State of Oklahama and obtained a decree on 19.8.2002 and the marriage was dissolved. In this connection, the father of Ranjitha, started to intimidate and threaten the 2nd petitioner and others and also used to make threatening calls.

4. According to the petitioners, subsequently a case also was filed against the father of Ranjitha for the offence under Section 506 Part B, IPC and Section 448 since he threatened the 2nd petitioner that he would take away her life. However, in this context, in retaliation, a complaint was filed by Ranjitha under Section 498A, IPC and also under the provisions of Section 3 & 4 of the Dowry Prohibition Act which was registered in No. 108/2002 before the Shankarapuram Police. Further, on registration of the crime, the police investigated the matter and filed a charge sheet against the petitioners in CC 426/2003 before the CMM, Bangalore for the offence under Section 498A, IPC and Section 3 & 4 of the Dowry Prohibition Act. The said action of the Police on the basis of the complaint filed by Ranjitha before the Shankarapuram police and filing of the charge sheet under Section 498A, IPC and Section 3 & 4 of the Dowry Prohibition Act is under challenge in this petition on various grounds.

5. Heard the counsel representing the parties.

Counsel for the petitioners submitted that the decree of divorce passed by the Oklahama Court was sought to be challenged before the Civil Court at Bangalore seeking for a declaration and to set aside the decree passed by the said Court and, as per Section 188 of Cr.PC, if the offence is committed outside India then necessarily it cannot be proceeded against the said person without the sanction of the Central Government and further submitted, as per Section 498A, IPC when there is dissolution of marriage by the Court at Oklahama wherein the complainant and the 1st petitioner had together lead marital life, if it was to be challenged before the Civil Court at Bangalore, necessarily it should be with the previous sanction of the Central Government. Apart from that, even for the offences committed outside the country in which Indian citizens are involved, central government previous sanction ought to have been obtained before enquiry into the matter or before the trial is commenced. Accordingly, he submitted that a memo was filed in the civil suit filed at Bangalore to set aside the decree passed for dissolution of marriage and the suit was withdrawn as the matter was settled, as a result, the decree for dissolution of marriage holds good. Further, since there is no previous sanction obtained from the Central Government before prosecuting or investigating into the matter and when already the marriage is dissolved, cognizance could not be taken against the petitioners and the 1st petitioner is no more the husband of the complainant as on the date of filing of the complaint before the Shankarapuram Police.

6. Learned Counsel for the contesting respondent submitted that already the matter has been settled out of Court and they are not interested in prosecuting the matter.

In the light of the arguments advanced, let me consider whether the petition could be allowed by quashing the charge sheet filed by the police for the offence under Section 498A, IPC and Section 3 & 4 of the Dowry Prohibition Act.

7. In the instant case, it is noticed that at the first instance, a civil suit was filed before the Family Court, Bangalore in OS 53/2003 to pass a decree to set aside the dissolution of the marriage passed by the Oklahama Court. The said decree passed by the Oklahama Court was prior to the filing of the civil suit as well as the complaint. The civil suit so filed during 2003 came to be dismissed on 28.10.2006. The complaint came to be filed on 25.11.2002. However, the civil suit was not disposed of on merits. Rather it became infructuous as the matter is said to have not been pressed as settled out of Court.

8. It may be relevant at this juncture to quote some provisions of the Cr.PC as well as CPC.

Section 188, Cr.PC: Offence committed outside India - When an offence is committed outside India -

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered in India,

He may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:

Provided that, notwithstanding anything in any of the preceding sections of this chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.Section 13, CPC: When foreign judgment not conclusive:

9. A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except -

a. Where it has not been pronounced by a court of competent jurisdiction;

b. Where it has not been given on the merits of the case;

c. Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

d. Where the proceedings in which the judgment was obtained are opposed to natural justice;

e. Where it has been obtained by fraud;

f. Where it sustains a claim founded on a breach of any law in force in India.

Section 498A, IPC: Husband or relative of husband of a woman subjecting her to cruelty:

Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

10. In the instant case, the decree of Oklahama Court for divorce put an end to the relationship of husband and wife between the 1st petitioner and complainant. As per the presumption, unless and until it is held it is not a conclusive judgment as per Section 13 of CPC, it is binding on the complainant. That apart, the civil suit filed also is said to be dismissed.

11. As per Section 498A, IPC, to invoke the said provision, there must be existence of a valid marriage. Since the marriage is dissolved, the complainant cannot proceed against the petitioners by filing a complaint. More over, as per Section 188, Cr.PC, before taking cognizance, prior sanction of the Central Government has to be obtained by the complainant as it is a mandatory requirement.

12. So far as compounding of offence is concerned, the Supreme Court in umpteen decisions has suggested and also laid down the law in respect of Section 498A, IPC cases with an intention to put an end to the matrimonial litigation that the High Court should exercise inherent powers under Section 482, Cr.PC, to promote peaceful settlement between the parties. Accordingly, this Court would exercise jurisdiction to quash the proceedings initiated under Section 498A, IPC with which the petitioners are charged.

13. As per Section 3 & 4 of the Dowry Prohibition Act is concerned there is a memo filed by the advocate for the complainant i.e., the complainant Ranjitha stating that the matter has been settled between the parties out of court, at the instance of well wishers. Though initially it was alleged and having found a prima facie case the police had filed a charge sheet for the offence under Section 3 & 4 of the Dowry Prohibition Act, the fact remains that till the trial is not concluded and a finding is given by the competent court that mere was a demand and acceptance, on mere allegation made if the charge sheet is filed, the statement so recorded under Section 161, Cr.PC or the complaint remains an allegation only till they are proved beyond reasonable doubt. Since in the instant case there is said to be a complaint filed by the petitioners as against the father of the complainant Ranjitha for the offence under Section 506 Part II and other offences, in that back ground as submitted by the counsel for the petitioners, Ranjitha also filed a complaint as a counter blast and pursuant to the same, the police after investigation filed a charge sheet for the offence under Section 498A, IPC and Section 3 & 4 of the Dowry Prohibition Act.

14. The question of compounding of offence is kept open under Section 498A, IPC but in case of offence under Section 3 & 4 of the Dowry Prohibition Act, although charge sheet is filed stating that there is a prima facie case on the material available, but in that background when the dispute has been settled between the parties, though it cannot be strictly said that the charge sheet filed is a frivolous one, the fact remains that in respect of dowry demand or acceptance, some amicable settlement is said to have been made and to put an end to the litigation between the parties in making allegations and counter allegations even the case filed against Prakash, the father of the complainant Ranjitha also is said to have been dismissed as submitted by the petitioner's counsel.

15. Exercising extra-ordinary jurisdiction under Section 482, Cr.PC, the allegation made regarding demand for dowry by filing a charge sheet against the parties and in order to put an end to the litigation, in the interest of justice, the charge sheet so filed against the petitioners in the factual back ground and circumstances of the case, is quashed opining that the allegation if any, so made in respect of offence under Section 3 & 4 of the Dowry Prohibition Act is in the back ground of the differences that arose between the parties.

16. In so far as offences under Section 498A, IPC is concerned, it cannot be proceeded against the petitioners as the marriage that had taken place between the 1st petitioner and the complainant was dissolved by the decree of the Oklahama Court and by the time the complaint was made, there was no existence of a valid marriage between the complainant Ranjitha and the 1st petitioner. As per the provisions of Section 498A, IPC, unless the marriage is subsisting between the parties the offence under the said section cannot be invoked. Only if there is subsistence of marriage between the parties, such a provision could be invoked under Section 498A, IPC as the wordings of the provision reads that' whoever being the husband or the relative of the husband of a woman subjects such women to cruelty shall be punished'. The wordings 'being ahusband' refers to the existence of a valid marriage.

17. In the instant case, it is seen already the marriage is dissolved by the time the complaint came to be filed as such, there was no marital tie between the 1st petitioner and the complainant as on the date of filing of the complaint and the question of the 1st petitioner being the husband of the complainant would not arise. Even otherwise, it is to be noticed, though the said decree, on the point of jurisdiction and other several grounds was sought to be set aside by filing a suit before the Family Court at Bangalore, ultimately that suit also came to be dismissed and the matter is said to have been closed. In the circumstances, invoking the provisions under Section 498A against the 1st petitioner would not be appropriate. Further more, when it is not shown as on the date of filing of the complaint, the relative of the husband also harassed her, after dissolution of the marriage there may not be prima facie case to proceed against the other petitioners also.

18. When the marital tie is broken by virtue of the decree passed for dissolution of the marriage, the relationship that existed ceased to exist thereafter. Then, there is no question of invoking the provisions of Section 498A, IPC.

19. For the foregoing reasons, the charge sheet filed against the petitioners by the Shankarapuram Police for the offences under Section 498A, IPC and Section 3 & 4 of the Dowry Prohibition Act is quashed.

20. Petition is allowed.