Karnataka High Court
Mr. Devendra Bhatia vs State Of Karnataka on 7 March, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 03.03.2025
Pronounced on : 07.03.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.19567 OF 2023 (GM - RES)
BETWEEN:
MR. DEVENDRA BHATIA
S/O KANHAIYALAL BHATIA
AGED ABOUT 54 YEARS
RESIDING AT NO. AA-1603
16TH FLOOR, ALPINE 'A' BLOCK
GOLDEN GRAND APARTMENT
YESHWANTHPURA
BENGALURU - 560 022.
... PETITIONER
(BY SRI HASHMATH PASHA, SR.ADVOCATE FOR
SRI MAHAMMADALI, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY RMC YARD POLICE STATION
BENGALURU CITY - 560 022
(REPRESENTED BY LEARNED
SPECIAL PUBLIC PROSECUTOR)
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2 . POLICE INSPECTOR
BAGALGUNTE POLICE STATION
BENGALURU CITY.
3 . DEPUTY COMMISSIONER OF POLICE
NORTH (CRIME)
BENGALURU CITY.
4 . MR.HARSHAL BHATIA
S/O DEVENDRA BHATIA
AGED ABOUT 25 YEARS
RESIDENT OF NO. AA-1603
ALPINE BLOCK
GOLDEN GRAND APARTMENTS
YESHWANTHPURA
BENGALURU - 560 022.
NOW AT NO.S-2
VISHWENDRA ENCLAVE
C-119A, DAYANANDA MARG
TILAKNAGAR
BENGALURU - 560 004.
... RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1 TO R-3;
SRI MANU P.KULKARNI, ADVOCATE FOR R-4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS PENDING
IN S.C. NO. 715/2019 ON THE FILE OF HONBLE XLV ADDL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY, FOR OFFENCE
UNDER SECTIONS 498-A, 302 OF INDIAN PENAL CODE AS AN
ABUSE OF PROCESS OF LAW WHICH IS ARISING OUT OF CRIME
NO. 251/2018 OF RMC YARD POLICE STATION, BANGALORE CITY
AS PER ANNEXURE-E (FIR AND COMPLAINT), ANNEXURE- K (
ORDER OF COGNIZANCE), ANNEXURE- L (ORDER SHEET OF
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S.C.NO. 715/2018) AND ANNEXURE- M (DISCHARGE ORDER) AND
DTD 05.08.23.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 03.03.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this Court calling in question
proceedings in S.C.No.715 of 2019 arising out of crime in Crime
No.251 of 2018 registered for offences punishable under Sections
498A and 302 of the IPC before the RMC Yard Police Station,
Bengaluru City.
2. Facts, in brief, germane are as follows:-
The petitioner is the accused and 4th respondent is his son,
defacto complainant. The petitioner gets married to one Mrs. Kiran
Bhatia on 08-05-1995 which would be 23 years before the date of
the alleged incident and from the wedlock two children are born,
one the de-facto complainant and a daughter, both at the relevant
point in time aged above 20 years. In this order, the petitioner and
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his wife, the deceased, would be referred to as father and mother
respectively. It is the averment in the petition that the family did
reside together cordially in a flat situated at 16th floor, Alpine 'A'
Block, Golden Garden Apartment, Yeshwanthpura, Bengaluru. The
petitioner is said to be an employee at ABB as a software Engineer.
3. The case revolves round an incident that happened on
26-08-2018. It is the averment that it was a Raksha Bandhan day.
On the said day, the mother of the defacto complainant is said to
have prepared the food, served the food to all and was staying in
the living room of the house. The son, CW-1 was said to be in the
room and the daughter CW-12 had been outside the apartment to
attend coaching. At about 3.35 p.m. the petitioner is said to have
sensed some noise from the kitchen and goes to the kitchen and
found that the wife was not in the kitchen. He then moves to the
utility and does not find her. In the balcony attached to the utility,
he sees down from the 16th floor of the balcony and finds lot of
people gathered there. He immediately told his son and both of
them rushed to the ground floor where the wife of the petitioner
was lying with injuries. She succumbed to those injuries.
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4. The petitioner then informs RMC yard Police, as also the
neighbours and relatives. The Police come to the spot and conduct
a mahazar and record the statement of the defacto complainant
and registered an unnatural death report in UDR No.31 of 2018 as
obtaining under Section 174 of the Cr.P.C. The body was then
shifted to mortuary of M.S.Ramaiah Hospital awaiting arrival of the
relatives.
5. The next day on 27-08-2018 the police conduct inquest
panchanama on the body in the presence of the petitioner, his
children and the relatives. There was no allegation of any
involvement of the petitioner in the incident. The petitioner, his two
children and the blood relatives travelled to Rajasthan, the place
where they hailed to finish all the family rituals. After 14 days on
completion of all rituals, the family comes back to Bangalore. The
son/defacto complainant then registers a complaint on 11-09-2018
alleging that the petitioner, his father was always fighting with his
mother, the deceased and in every fight, he was warning that he
would kill her or she should die herself. It is the complaint that the
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father is the reason for the mother's fall. Immediately, thereafter,
a complaint comes to be registered in Crime No.251 of 2018
against the petitioner for the offence punishable under Section 306
of the IPC. The petitioner was taken into custody and interrogated
and is said to have been on bail later. On the score that the
complainant had no confidence with the person who was
investigating into the offence, represents to the Commissioner of
Police for change of Investigating Officer. The investigation is
shifted from RMC Yard Police Station to Bagalgunte Police Station
coming within the same Division.
6. The Investigating Officer then files a requisition before the
concerned Court to include the offence under Section 302 of the
IPC. The investigation is conducted and a final report is placed
before the concerned Court alleging offences punishable under
Sections 498A and 302 of the IPC. Cognizance is taken on the
charge sheet and the concerned Court registers C.C.No.3751 of
2019. Since the offence was punishable under Section 302 of the
IPC, the matter was committed to the Court of Sessions where it is
registered and pending trial in S.C.No.715 of 2019. The petitioner
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files an application seeking his discharge from trial on the score
that he has nothing to do with the fall of the deceased/wife. This is
a case where the father is complained of by the son of murdering
the mother. The discharge application comes to be rejected. Upon
rejection, the petitioner stands at the doors of this Court with the
present petition. This Court owing to the submission of the learned
senior counsel for the petitioner that change of jurisdiction was
contrary to Section 36 of the Cr.P.C., had interdicted the
proceedings. The respondent No.4 has filed his objections and the
matter is heard.
7. Heard Sri Hashmath Pasha, learned senior counsel
appearing for the petitioner, Sri B.N.Jagadeesha, learned Additional
State Public Prosecutor appearing for respondents 1 to 3 and
Sri Manu P. Kulkarni, learned counsel appearing for respondent
No.4.
8. The learned senior counsel for the petitioner would submit
that the power to change the Investigating Officer from one
jurisdiction to another jurisdiction is not available with the
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Commissioner of Police. It can be done only by the concerned Court
or this Court. He would further contend that allegations made
against the petitioner are all improbable. A father cannot be
imagined to push the wife down as narrated by his son, the de-
facto complainant. It was an accidental fall from the balcony at
best. There is neither offence of Section 498A nor offence of Section
306 abetment to suicide and can never be an offence under Section
302 murder of his wife. He would contend that the son did not have
a cordial relationship with his father, the petitioner. Therefore, to
wreak vengeance against the petitioner, the son is tutored by the
relatives and that tutoring has resulted in registration of crime. It
is his case that if at all the son had to allege against the father, he
would have done it in the first instance itself. The Police record the
statement and register an unnatural death report. Not a whisper
about the allegation comes about. It is his submission that it
should be taken note of and proceedings be quashed.
9. Per-contra, the learned counsel appearing for the 4th
respondent would vehemently refute the submissions contending
that it is too late in the day for the petitioner to allege that transfer
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of investigation which happened in the year 2018 is erroneous.
Even otherwise, the learned counsel would contend that this Court
itself has held that power under Section 36 of the Cr.P.C. is
available for transfer of investigation if it is within the same Division
or jurisdiction. It is his case that the judgment that the learned
senior counsel placed reliance upon while submitting for grant of an
interim order is not applicable to the case at hand. On merits of
the matter, the learned counsel would submit that in Section 164
statement not of the son alone, the daughter as well would clearly
pin down the petitioner for both the offences i.e., Sections 498A
and 302 of the IPC. It is his submission that when there is copious
evidence against the father, this Court in its jurisdiction under
Section 482 of the Cr.P.C., should not interfere.
10. The learned Additional State Public Prosecutor would also
toe the lines of the complainant in contending that there is no
change in jurisdiction by the transfer. The transfer was necessitated
by the representation of the son against the father. He would,
therefore, contend that it is a matter of trial and since trial has
progressed to a large extent, this Court should not today interfere.
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11. I have meticulously perused the intricacies of the
evidence and considered the submissions made by the respective
learned counsel and have perused the material on record.
12. The afore-narrated facts are not in dispute. The link in
the chain of events require reiteration date wise. The petitioner and
the mother, now deceased get married on 08-05-1995. They live
for 23 years together. From the wedlock, two children are born. At
the relevant point in time, the children were beyond 20 years old.
On an ill-starred afternoon of 26-08-2018, the mother allegedly
falls from 16th floor of the apartment and succumbs to the cruel
hand of destiny. An unnatural death report under Section 174 of the
Cr.P.C., on a tempest of enquiry is rendered. On the next day, the
inquest report is prepared and statements of the father of the
complainant and other relatives are taken. The statement of the
daughter is also recorded on 27-08-2018. The daughter is said to
be away from the house when the alleged incident happened. It is a
matter of record that all the family members travelled to Rajasthan
and come back after 14 days. On coming back, the complaint
comes to be registered by the son of the petitioner.
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13. Since the entire issue triggered from the complaint, I
deem it appropriate to notice the complaint. It reads as follows:
"To
Station House Officer,
RMC Yard Police Station,
Bangalore-22.
Sub: Application to register First Information Report
against my father for intentionally killing my mother.
Respected Sir,
1. I Harshal Bhatia (S/o Devendra Bhatia), resident
of AA-1603, Alpine Block, Golden Grand Apartments,
Yeshwanthpur, Bangalore.
2. My father has been behaving in a egomaniacal way
for years. He would create disputes over the smallest of
things. This would result in altercations. My dad would end
up berating and beating my mom. For instance he had
mandated that as soon as he came back from office two
glasses of water ought to be kept on the dining table. My
mother obliged. One day when he returned from office, one
of the two glasses was not completely full. Such a small
thing resulted in him beating my mother. In another
instance, he dragged my mother from the bed to the
kitchen with her hair. I and my sister can never forget this
horrifying instance of our mother being dragged across the
floor as dad pulled her by hair. We later found out that this
was because she was sick and asked him to make his own
tea for one day. Due to such actions we feel unsafe with
our father.
3. Due to my father's inappropriate behavior me and my
sister have implored my mother to divorce or take action against
my dad several times but she always refused. In the presence of
just my sister and I, she revealed that she would not take any
action against him until we were both well settled. Even my
father, during fights has asked my mom for a divorce several
times.
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4. On the afternoon of 26th August my mother (Mrs. Kiran
Bhatia), passed away when she was flipped by my father from our
flat on the 16th floor. At that time this was purported to be an
accident. On that fateful day my parental family utilized the fact
that I was emotionally broken and they pressurized me to provide
statements which were not true and were according to them. We
(I and my sister) are both still students and were told now that
our mom was gone, no one else except our father would take care
of us ("Ab tumahara aur kaun hai?"). Now that my mother's last
rights are completed, we are out of their clutches and they cannot
enforce undue influence and pressure. Right now I am feeling
much more confident to speak the truth before the authorities
and make a request to reopen the case against my father.
5. On that afternoon I was reading a book in my
room when I heard my parents fighting. This was a routine
occurrence. After a while of fighting, I heard my dad
shouting "Main tujhe jaan se maar dunga haraamzaadi!
Teri itni himmat ki tune mujhpe haaath uthaya?" (I will kill
you, you haraamzaadi! How dare you hit me?). To which
my mom replied "Puri zindagi pitati hi aa rahi hun, ek din
to maar saktihun". (I have been beated all my life. For
once I can hit back"). Then I started moving outside the
room to see what was going on. I saw my dad standing in
the balcony. He lifted my mom by her legs and flipped her
over. I rushed to the balcony. When he saw me, he joined
his hands and begged "Maine kuch nahi kiya! Maine kuch
nahi kiya! Maine kuch nahi kiya! (I did not do anything! I
did not do anything! I did not do anything"). After I came
down I saw that my mother had died on spot. My father
killed my mother and he must be brought to justice.
6. After the incident, when some of the relatives and
friends had gathered and some had called I spoke to them
about the incident that actually happened. Umesh Bhatia
(my uncle) and Himanshu Bhatia (cousin) were successful
in convincing me to hide the actual facts of the incident. I
was told that since I had already lost my mother, my dad
was the only one remaining to take care of us. They
specifically emphasized that, "Zindagi bhawnaon se nahi
chalti, apne aur bahan kay bhavishya kay baare me soch.
Meri maan nahi to sab khatam ho jayega" (irrespective of
your feelings and emotions, you have to think about your
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sister's future. It would be ruined if you do not act
accordingly."
7. I am not just sure but confident and have countless
reasons to believe that this incident was not an accident,
considering the egoist nature and short temperedness of my
father. He usually gets out of control and he can harm my mother
to any extent. This was not an accident but a murder.
Therefore, I make a request before the competent
authority/investigating officer to reopen and investigate the
matter afresh on the basis of my application.
Date: 11-09-2018
Place: Bangalore, India.
Complainant/Applicant: Harshal Bhatia."
(Emphasis added)
Pursuant to the complaint, a crime comes to be registered against
the petitioner for offence punishable under Section 306 of the IPC in
Crime No.251 of 2018. The incident was on 26-08-2018. The
investigation commences in Crime No.251 of 2018.
14. The statement of the daughter of the deceased is
recorded under Section 164 of the Cr.P.C. The daughter narrates
the squabble between the mother and the father intermittently and
speaks about the violence as well. The daughter's statement,
insofar as it is relevant, reads as follows:
".... .... ....
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2. My father by name Devendra Bhatia is working at ABB
Company as an Engineer. Since from our childhood my father
was egoistic, control freak, temperament. My father used to
treat my mother as slave. My father never shown any love and
affection towards myself and my brother. When we are younger
age he was showing little bit care on us but when we are
growing up he started to treat us harshly.
3. I would like to say some instance about his
egoistic and temperament nature that, when I was 6 - 7
years old child one day my mother was not feeling well
she was suffering from high fever, at that time my father
asked her to prepare tea for himself. But my mother due
to high fever she was not in position to move ahead,
hence she told him to prepare tea for him, for that my
father got angry and dragged my mother from bedroom
to kitchen by grip of her hair and pushed her into the
kitchen by saying that "what do you think, I will make my
own tea?" This is one of the situation to tell about my
father and this type of incidents have occurred many
times from our very young age.
4. My father used to spit on her, hit her, abuse her
physically and mentally so much without reason. One day
there was fight between my father and my mother. My
mother had told herself that "mein Kamini hu kya". For
that my father picked up his shoe and hit my mother. At
that time my brother took photo/video from his mobile.
Till today we are having that photo/video to show his
rude behaviour and torture.
5. Recent years my mother started becoming
stronger. We used to tell her to take divorce from him
because she could have led a better life rather than living
with my father but my mother always used to say that,
you both should settle down first then we think of it.
6. One day my father was angry during a fight when
he tried to kick her, my mother moved little bit to side
but then he hit TV, TV screen was broken and even glass
pieces were there, there was a dent on TV screen. Such
was the intensity of his brutality. Despite of his ill-
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treatment my mother was tolerating it due to our
younger age.
7. My mother always praying God for peace and she used
to perform pooja at home. My mother always used to read
Bhagwad Gita. One day my father came in an angry mood and
he saw that my mother was reading holy Gita book. My father
want to destroy it and he told that why you are reading Gita you
won't get any knowledge, you destroy it or else I will destroy.
Then I took the Gita book from my mother and hid it
somewhere. Then my father came and burnt the entire pooja
room and insisted my mother to burn Gita book also. My father
never allowed my mother to get peace by reading Holy Books
also.
... ... ...
14. Next morning I told her that if he does not want
to see your face you ask him to go out. On that night
again there was fight between them and again my father
asked my mother to go out as he don't want to see her
face. But, my mother at that time resisted him and told to
him that "if you don't want to see my face you get out".
For that my father got so much anger and as usual he
asked for divorce. For that my mother replied that I will
take divorce. That is the first time my mother agreed for
divorce. For that my father got anger and told saying that
"ek phutti kodi bhi nahi dunga" means I will not give you
single penny.
15. For that my mother said I don't want anything. I just
want peace. Like that fighting was going on for some time and
then my mother went out from the room and she was crying
and slept on the cot at drawing room.
16. On 26-08-2018 around 10-30 a.m. she woke me up
and asked me to get ready to celebrate Raksha Bhandhan. At
about 11.00 a.m. I woke my brother and asked him to get ready
to celebrate Raksha Bhandhan. When I was making the plate
ready by keeping tilak, rakhi sweets etc. my father was across
and I asked him to join for rakhi celebration but he ignored me
and went out. After that we all i.e., myself my brother and my
mother have celebrated Raksha Bhandhan.
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17. After that I called him for 4 - 5 times but he did not
lift my call then after 10 - 15 minutes my father came back to
home. Then I asked him to get the rakhi tied, but he did not
reply.
18. In spite of fight from last 3 - 4 days my mother
went to him and asked my father that "tumhari behanone
rakhi beji hai, unase tumhari kya dushmani, rakhi to
bandhvalo" your sisters have sent the rakhi, you do not
have any enmity with your sisters, atleast get the rakhi
tied. My father replied that (Bhadame gayi rakhi, bhad
mein gaye tum sab) to hell with the rakhi and to hell with
you all. I noticed that my father was in mood to pick
quarrel for no reason and he was in a anger mood so I
asked my mother to let him be. After that I went to my
room and started studying, around 1.00 p.m. my mother
called me and told me to get ready to go to coaching
class. When I came out from room I noticed that my
mother was preparing dal bati churma. I asked my
mother why you are preparing this dish for my father
even though you are already hurt in the hands. To which
my mother said "koi bath nahi beta unka mood achha
rahega unko dal bati bahot acchi lagatihai" means its OK
beta his mood will get better, and he likes dal bati very
much. She told me to focus on my coaching class. My
mother made specially rice for me because bati was not
yet baked then I had rice and dal. When I was leaving I
told to my father Jai Sri Krishnan i.e., the word we use to
say when we leaving. He did not replied rather he had
that look to get fight and to throw something. Then my
mother dropped me till bus stop even though she was
busy in the kitchen. At the bus stop she told me that I
will prepare bati for you in the evening when you come
back and you don't worry you study well."
(Emphasis added)
Since the daughter was not present in the house at the time of the
incident, the aforesaid statements would become important as a
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prelude to the alleged incident. The investigation would go on.
Alleging that the Investigating Officer was well known to the
petitioner, the son/complainant represents before the
Commissioner of Police for change of Investigating Officer. The
representation reads as follows:
"To
Shri T.Suneel Kumar, IPS
The Commissioner of Police Bangalore City,
Infantry Road,
Bangalore.
Sub: RMC Yard Police Station coerced me to change my
complaint for my father intentionally killing my
mother.
Respected Sir,
1. I harshal Bhatia (S/o Devendra Bhatia), resident of AA-
1603, Alpine Block, Golden Grand Apartments,
Yeshwanthpur, Bangalore.
2. Yesterday (11th September) I tried to register a
complaint against my father for killing my mother.
The police coerced me to change my complaint and
modified it and took my signature. And then filed
the FIR.
3. Since the FIR was registered in Kannada they completely
changed it and forced me to sign.
4. The original complaint I took to the police station is also
enclosed here with the modified one with the FIR.
Therefore, I make a request to correctly lodge my
original complaint and reopen the investigation by
changing the investigation officers. The present
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investigation officer stays in the same apartment building
and is known to my father.
Yours sincerely,
Sd/-
Harshal Bhatia
Date: 12-09-2018
Place: Bangalore, India. "
(Emphasis added)
The representation is on 12-09-2018. Not very late, but the next
day of registration of the complaint itself. Therefore, the statement
of the daughter is recorded by the changed Investigating Officer.
The Investigating Officer of Bagalgunte Police Station to whom the
investigation was handed over records the statement of the son,
the defacto complainant as obtaining under Section 164 of the
Cr.P.C. His statement reveals gory details of what happened on the
said date or previous to the said date. The statement is as follows:
"My name is Harshal Bhatia and I am pursuing
Engineering 7th Sem. At Dr. Ambedkar Engg. College,
Bangalore. My father Devendra Bhatia is working at ABB
company as a Engineer. My mother Kiran Bhatia, she was a
house wife. My father Devendra Bhatia was very egoistic and
violent also. He used to pick up quarrel with my mother for
simple reasons since from our childhood. My father used to beat
my mother many times. My father used to fight with my mother
and shout, beat, spit on and drag my mother, sister and myself.
So I would like to say that my father was very egoistic. I would
like to say one instance for illtreating my mother that my father
mandated that as soon as he came back from office two glasses
of water ought to be kept on the dining table. My mother
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obliged for the same and she used to keep two glasses of
water on the dining table everyday but recently about 2
months back one day when he returned from the office
one of the two glasses was not completely full hence for
the said reason my father beaten my mother very badly.
Despite of such torture my mother used to tolerate,
because of our younger age. And she always used to tell
us, we should settle down in life. If any police complaint
is lodged that will give bad name to our family, hence for
that reason my mother never agreed to take any action
against my father. But my father used to insist her to give
divorce always but my mother never used to reply. But,
in recent days my father was asking that (tere sath nahi
rehena, mujze divorce dede) means you are not required
to me give divorce. For which my mother replied that
(haan nahi rehena, ithane salonse torture seharahi hun)
means I do not want to bear this torture I will take
divorce. Then my father told that (main thuze ek phuti
kodi bhi nahi dunga) means I won't give you single rupee
also.
2. On 26-08-2018 I was at my home on that day
there was Raksha Bhadhan. At about 11.00 a.m. my sister
by name Yogya Bhatia asked me to get ready to celebrate
Raksha Bhadhan, at that time my father was not at home.
We all i.e., myself, my sister and my mother have
celebrated Raksha Bhadhan. After 10-15 minutes my
father came back to home. At that time I have noticed that
my father had angry look on his face and my sister asked him to
get tie the rakhi to his hand which was sent by his sisters. For
that my father did not replied and ignored my sister. In spite of
fight from last 3 - 4 days my mother asked my father that
(tumhari behanone rakhi beji hai, unase tumhari kya dushmani,
rakhi to bandhvalo) your sisters have the sent the rakhi, you do
not have any enmity with your sisters, atleast get the rakhi tied.
My father replied that (Bhadame Gayi rakhi, bhad mein gaye
tum sab) to hell with the rakhi and to hell with you all. Then my
sister prevented my mother to say anything to him because at
that time he was in the mood to pick up quarrel and fight. In
spite of such an atmosphere at home my mother was cooking
dal bati a special Rajasthani Dish for my father. Then I went to
my room and went to sleep. I got up around 3.00 p.m. at that
time my sister was not there at home and I understood that she
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went to her coaching class. I then picked up a book and started
reading at room. Thereafter, my mother called me for
lunch. I told her that after finishing reading I will join for
lunch. In the meantime, she served food to my father. My
father asked and shouted at her to serve more Bati to him
as his plate was empty. My mother told that more bati is
not yet baked, if he wants she serves rice. My mother
asked him the same thing for 3 times but my father did
not replied. Thereafter he was shouted by saying that
(andhi hai kya plate khali hai dikhata nahi kya, jo bhi hain
wo dede) means are you blind cannot you see that my
plate is empty, whatever is there give me that. My mother
was busy in preparing Bati hence she told my father to
come to kitchen to take rice, for that my father's ego got
hurted and suddenly he went to kitchen and started to hit
my mother with pressure cooker lid. Then I heard that my
father shouting by saying (jan se maardunga haram
zaadi, teri itani himmath ki muzape hath uthaya) means I
will kill you haram zaadi, how dare you to hit me. My
mother was crying and she replied saying (puri jindagi
pitati aarahi hun... ek din maar bhi sakati hun) means for
all my life I have been beaten for once I can hit back.
Then I thought the fight was too serious hence I came
out running to the dinning room at that time I saw my
father and mother at balcony. My father was flipping my
mother over the balcony. I ran to balcony my father turns
towards and joined his hands and told that (meine kuch
nahi kiya, meine kuch nahi kiya, meine kuch nahi kiya)
means I did not do anything. I did not do anything, I did
not do anything. Thereafter I ran down my mother was
dead thereafter my father came and tried to move the
body though I told him not to move the body. My father
tried to take body to house. My mothers head was broken
at the back. Immediately public gathered there but my father
vanished from the area. Again my father came back with bed
sheet. Public informed to police, the police came, I took them to
house and shown everything. Then my fathers friends gathered
and told me that no beta your mother is not there who will take
care of you and your sister, you do not involve the police and
pressured me. At that time my mothers body was at ambulance,
hence I also went in ambulance to M.S. Ramaiah Hospital, after
finishing all the formalities my paternal cousin by name
Himanshu Bhatia called me and told that I should tell to Police
21
that we are happy family and at that time of incident I was
sleeping, the incident might have happened accidentally. My
cousin asked me to come directly to police station, when I went
to police station where they have already prepared a written
statement, for that they have asked me to put signature. At that
situation I am not in a position to read the statement. And I
have signed it blindly due to emotional feelings.
3. Due to their pressure and emotional distress I
did not able to lodge the complaint immediately against
my father. My father is sole responsible and he himself
has committed murder. Therefore, I prays to take
suitable action and punish him.
4. On the next day we cremated my mother at
Chamarajpet. After that two policemen came to our house and
asked us to remove the wire which was in tacked to get dry the
cloths and also asked us to keep stool near the edge of balcony
and keep the baking woven on the top of shelf at balcony
because post mortem doctor will come and inspect the spot.
5. Further, I would like to say that, during the
rituals days at Kota, Rajashtan, my father asked me to
give my mother mobile but in my mother mobile there
was some recordings relating to his abusive behavior,
therefore, I feared that I if give the mobile he may delete
it, hence, I refused to hand it over to him. The said
incident angers my father and his brother Manish Bhatia
and they strangled and choked my throat. After my
shouting my sister and another uncle came to rescue me.
6. Then I realise that myself and my sister are not safe in
their hands hence we called our maternal uncle and grandfather
to come and take us with them, then we went to Jaipur and we
told everything to our maternal uncle and grandfather about the
incident. Then we came back to Bangalore and to lodged a
complaint against my father.
7. But the complaint attached to the present FIR
was modified by the police when we went to lodge
complaint to police 11-09-2018. On that day I was
accompanied with sister, maternal uncle and grandfather
but the police did not allow them to get inside the room.
22
Then police called my father to the station and my father
came to police station and he sat on the chair as a king
and he continued to abuse in filthy language in front of
police. Four to five police men surrounded me and asked
me to modify the complaint as if my mother fell from our
flat due to torture of my father but actually my father
flipped my mother from balcony. At that situation with no
other option I had modified the complaint.
8. On the next day me, my sister and maternal uncle
approached the Commissioner of Police and finally we got the
chance to meet him in the evening. He told to record 164
statement.
Hence, I beg to take suitable action against my father."
(Emphasis added)
After recording of statements as noticed hereinabove, charge sheet
comes to be filed by the Bagalgunte Police before the concerned
Court. The concerned court then registers C.C.No.3751 of 2019 for
offences punishable under Sections 498A and 302 of the IPC. The
summary of the charge sheet as obtaining under Column No.7
reads as follows:
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23
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Since the offence was punishable under Section 302 of the IPC, the
case was committed to the Court of Sessions and is now pending
trial in the aforesaid sessions case.
15. The petitioner files an application seeking his discharge
shockingly enough and it comes to be rejected. After the said
rejection, the petitioner is at the doors of this Court on a weak legal
24
submission that the transfer was contrary to Section 36 of the
Cr.P.C., and runs counter to the judgment rendered by the
coordinate Bench of this Court in the case of Mr. MAGADI
SHANKAR RAO KRISHNA MURTHY v. THE COMMISSIONER OF
POLICE1. The judgment in MAGADI SHANKAR RAO was tossed
before the Apex Court and the Apex Court on 18-07-2016 disposed
of the SLP by affirming facts therein, but keeps the law open to be
decided in an appropriate case. Therefore, the Apex Court had not
granted its imprimatur to the legal findings in MAGADI SHANKAR
RAO. Even otherwise, the said judgment in MAGADI SHANKAR
RAO is considered and distinguished by this Bench in the case of
ANIL D'SOUZA v. THE STATE OF KARNATAKA2 wherein this
Court has held as follows:
".... .... ....
8. I have given my anxious consideration to the
submissions made by the respective learned senior counsel and
have perused relevant material on record. In furtherance
whereof, the only issue that false for consideration is, whether
the order dated 06-10-2022 transferring the investigation from
Station House Officer, Electronic City Police Station to the
Station House Officer, Marathhalli Police Station is valid in the
eye of law?
1
ILR 2015 KAR 6039
2
W.P.No.22044 of 2022 decided on 28-07-2023
25
9. Section 36 of the CrPC reads as follows:
"36. Powers of superior officers of police.--Police
officers superior in rank to an officer in charge of a police station
may exercise the same powers, throughout the local area to which
they are appointed, as may be exercised by such officer within the
limits of his station."
Section 36 deals with powers of superior officers of Police.
The Police Officers superior in rank to an officer in-charge of the
Police Station may exercise same power throughout the local
area to which they are appointed and as may be exercised by
any such officer within the limits of his station. Since the story
commences from 07-08-2022, it would suffice for consideration
of the issue in the lis. Dr. Seena Biju, wife of the petitioner
checks into a hotel by name Ottera and consumes poison. The
poison does not kill Dr. Seena Biju immediately who is shifted
from hospital to hospital and succumbs to the poison on 10-08-
2022. It appears after consumption of poison on 07-08-2022
the Electronic City Police had asked Dr. Seena Biju to give her
statement and the statement was that nobody was responsible
for her act of consuming poison. After her death, the 4th
respondent, sister of the deceased registers a complaint on 18-
08-2022. The complaint so registered reads as follows:
"To Date:18-08-2022
The Police Inspector,
Electronic City Police Station,
Bangalore, Karnataka.
From:
Mrs. Leena Denzil,
(Younger sister of deceased Seena Biju),
W/of Denzil Martin, Flat No.301,
3rd Floor, Bhavanis YNR Paradise,
Beside Boddu Kamalamma Function Hall,
Yapral - 500 087, Secunderabad,
Telangana, Email:[email protected]
Phone: 9966100037, Community: Christian.
Sir,
Sub: UDR FIR No.0018/2022, PS Electronic
City, Bangalore City - Complaint against
26
Anil D'Souza for abetment to souicide
and dowry death - Reg.
--
I, Leena Denzil, Aged 48 years W/o Denzil Martin,
R/o Flat No.301, 3rd Floor, Bhavanis YNR Paradise, Yapral,
Secunderabad, Telangana State – 500 087, beg to submit
the following for your kind consideration and necessary
action.
I am a resident of the above address. I am the
younger sister of Late Dr. Seena Biju (50 years) and Mr.
Anil D’Souza is her husband. He is 51 years S/o Joseph
Martin D’souza. I am lodging this complaint as the
complicity in commission of offence by Mr. Anil D’Souza is
there in the untimely and unfortunate death of my sister
Mrs. Seens Biju on 10th August, 2022 at 8.30 a.m. That
certain facts have come to our notice in the last 5 days
related to the demise of my sister under suspicious
circumstances. In this regard, my father, Retd. Capt. V.P.
Joseph, has lodged a complaint and the same has been
registered in Electronic City Police Station on 10th August
2022.
After the demise of my sister, myself and my family
members have ascertained and procured substantial,
adequate, cogent and incriminating evidences and
documents which is submitted at the time of investigation.
Firstly, they were legally wedded on the 6th April,
2021 at the Office of District Collector, East District,
Gangtok. My sister was not at all looking for this marriage,
however Anil kept pursuing her and stalked her with a
dishonest intention of making gain out of savings and
earnings. In pursuance of his nefarious intention of
getting into a relationship, he was insistent and allured her.
After many months of persuasion and stalking eventually
Mr. Anil D’Souza entrapped her with fraudulent
representations and she succumbed to his ploy and got
convinced about marriage. At this point, I would like to
state that for both of them it was their second marriage.
Soon after the marriage, from April to July, 2021
there were multiple instances of mental and physical
cruelty, culpable indifference, scheming disinterest as well
as lack of basic human courtesy. He began demanding all
details of her assets both movable and immovable and as to
any inheritance from my parents side.
27
Secondly, when Anil and Seena moved to Bangalore
(Apartment D 001, Ajmera Infinity, Neeladri Road,
Electronic City, Phase-I, Bangalore-560 100), there were
again many instances of perpetrated mental and
physical torture on my sister. He subjected her to ill-
treatment and he repeated culpable indifference and
aggravated behavior towards my sister. He even berated
her prior life and savings, mocking her financial status
and achievements as she could not put up more than `
5,00,000/- cash towards the house purchase on the
demand of Mr. Anil.
Thirdly, Anil was cheating on my sister, which was
shared by her to us on multiple occasions. He was having
affairs with many women and had lengthy and indecent
conversations with them. Upon trying to discuss and
question such topics he would fly into a rage and use
abusive language with her, passing disparaging remarks
and employing unparliamentary language which caused
mental trauma to my sister and felt deceived due to him not
addressing his obligations.
Fourthly, there are instances where he has thrown
my sister out of the house demanding money from
her father. His rage and anger was also demonstrated
outside the house. Seena was subject to high stress by him
and reached out to my parents as well as Anil’s sister
Charmaine for support. His sister refused to be involved due
to Anil’s unpredictable behavior in such matters.
Furthermore his behavior of cheating women and causing
mental trauma was observed as a repeated pattern
which needs to be strongly investigated.
Lastly, on the 7th August, his abrasive behaviour
forced my sister out of the house and take the
extreme step of suicide. As per Anil D’Souza, who
informed Swapna (my younger sister), she checked in to a
hotel named Otera at around 10.30 a.m. and consumed
Paraquat. She then reached out to Stephen George (my
cousin brother) asking him to pick her up through a call and
voice message. Stephen on visiting the hotel, found her in a
extremely low condition and called to inform Anil, who
refused to come to help. Stephen then moved her to
Kavery hospital for treatment. Seena’s (deceased) family
(we) were informed by Swapna (younger sister) at 4.30
p.m. and subsequently we reached Bangalore on 8th August
28
and were here until the 10th August 2022 for her treatment.
During her hospitalization he cunningly used her bank
cards and withdrew substantial money to transfer
money to himself in the name of hospital expenses but
never paid her bills in full. He even did not attend his
own wife’s funeral in Hyderabad.
I, her sister, Leena Denzil, would like to initiate a
formal investigation under the caption of Abetment to
Suicide, as all instances point to his systematic, continuous
oppression and merciless nature which has pushed, forced,
compelled and created a traumatic environment leading to
the act of suicide. Hereby we request you to take
appropriate steps to see that the culprit is brought to
justice as per law. We would also like to know what action
was initiated so far and what is the present state of
investigation.
We also need support to obtain all her
belongings from her residence (Ajmera Infinity) to be
handed over to the rightful heir Ms. Rhea Biju, her
daughter.
My deceased sister’s daughter by name Ms. Rhea
Biju, resident of New Zealand, has executed the General
Power of Attorney in my favour proceed with all legal and
other co-related acts on her behalf. A copy of the GPA is
filed with this letter.
For your immediate action,
Thanking you,
Yours sincerely,
Sd/-
Mrs. Leena Denzil,
9966100037,
[email protected]”
The allegation against the petitioner is of physical torture,
demand of money, oppressive behavior of the petitioner to be
the reason for commission of suicide and abetment which was
sought to be projected in the complaint. The complaint then
becomes a crime in Crime No.157 of 2022 for offences
punishable under Sections 498A and 306 of the IPC. It was
registered before the Electronic City Police Station and the
Station House Officer of the said Police Station takes up the
investigation. The petitioner then receives a communication on
2916-10-2022 from the Station House Officer of Electronic City
Police Station and the said communication reads as follows:
“EªÀjUÉ
C¤¯ï r¸ÉÆÃeÁ ©£ï eÉÆøɥsï ªÀiÁnð£ï r¸ÉÆÃeÁ
CfäÃgÁ E£ï¦ü¤n C¥ÁmïðªÉÄAmï
¤Ã¯Á¢ægÀ¸ÉÛ, J¯ÉPÁÖç¤Pï¹n ¥sÉøï-1
¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ.
F ªÀÄÆ®PÀ ¤ªÀÄUÉ ¸ÀÆa¸ÀĪÀÅzÉãÉAzÀgÉ, ¤ªÀÄä «gÀÄzÀÞ £ÀªÀÄä ¥Éưøï
oÁuÉAiÀÄ°è zÁR¯ÁVgÀĪÀ ªÉÆ.¸ÀA.157/2022 PÀ®A 498(J), 306 L.¦.¹ ¥ÀæPÀgÀtzÀ
PÀqÀvÀªÀ£ÀÄß »jAiÀiÁ¢üPÁjUÀ¼À DzÉñÀzÀ ªÉÄÃgÉUÉ ªÀÄÄA¢£À vÀ¤SÉUÁV ªÀiÁgÀvÀÛºÀ½î
¥Éưøï oÁuÉ, ¥Éưøï E£ïì¥ÉPÀÖgï gÀªÀjUÉ ªÀUÁðªÀuÉ ¤ÃrgÀÄvÉÛ. ¤ÃªÀÅ E£ÀÆß
ªÀÄÄAzÉ F ¥ÀæPÀgÀtzÀ «ZÁgÀuÉUÁV ªÀiÁgÀvÀÛºÀ½î ¥Éưøï oÁuÉ, ¥Éưøï E£ïì¥ÉPÀÖgï
gÀªÀgÀ ªÀÄÄAzÉ ºÁdgÁUÀ®Ä ºÁUÀÆ £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀzÀAvÉ ºÁdgÁwAiÀÄ£ÀÄß ¤ÃqÀ®Ä
¸ÀÆa¹zÉ.”
The communication informs the petitioner that Crime
No.157 of 2022 is transferred to Marathhalli Police Station from
Electronic City Police Station on the direction of higher up and,
therefore, the petitioner was directed to approach Marathhalli
Police Station in future. Immediately thereafter, the petitioner is
before this Court challenging the said order of transfer in a
petition filed on 07-11-2022.
10. The learned senior counsel appearing for the
petitioner would submit that the 4th respondent/complainant on
03.10.2022 communicates to the 2nd respondent alleging faulty
investigation by the Station House Officer of Electronic City
Police Station, after which a second complaint is registered
before the Assistant Commissioner of Police and the complaint is
accepted on 06.10.2022. The transfer from Electronic City
Police Station to Marathhalli Police Station happens without
assigning any reason. Immediately thereafter, an application is
filed before the learned Sessions judge seeking cancellation of
bail by the 4th respondent. The reason was that when the
petitioner was marking his attendance in pursuance of
conditions of bail, he was informed about the transfer and later
he was not permitted to mark his attendance at the Police
Station. The learned senior counsel also contends that the
Additional Commissioner of Police has no power of transfer of
investigation from one Police Station to another. In this regard
30
he has placed reliance upon a judgment of the co-ordinate
Bench of this Court in the case of MAGADI SHANKAR RAO
KRISHNA MURTHY v. COMMISSIONER OF POLICE3 wherein
it is held as follows:
“11. The territorial jurisdiction of the Commissioner
of Police to the entire Bangalore City is as specified by the
State Government. Commissioner of Police is a superior
police officer as defined by Section 2(22) of Karnataka
Police Act, 1963. The Officer in-charge of a Police Station is
defined in Section 2(o) of the Code usually who is of the
rank of the Police Inspector, is inferior in rank in the
hierarchy of the system.
12. The Apex Court in the case of Nirmal Singh
Kahlon v. State of Punjab (supra) along with Another Case.
“27. In terms of Section 3 of the Police Act,
1861, the State has the ultimate say in the matter of
superintendence of investigation. Section 36 of the
Code must be read harmoniously with the said
provision. Therefore, when Section 36 of the Code uses
the words “in rank”, it should be given a purposive
construction. Although a plain reading of the
aforementioned provision appears to be containing
three ingredients, namely, (i) the investigation must
be carried out by an Officer in charge; (ii) which may
be supervised by an Officer superior in rank; and (Hi)
in respect of a local area to which they are appointed,
but in the context of the power of the State vis-a-vis
the provisions of the Act, the same, in our opinion,
deserves a wider application.”
By a catena of judicial pronouncements, the scope
and ambit of this Section 36 of the Code is well defined and
there is no doubt that the Commissioner of Bangalore is the
officer superior in rank to an Officer in charge of the Police
Station. The powers of the Police Commissioner in the
capacity of the superior officer to take over the investigation
from the jurisdictional Investigating Officer cannot be a
matter of quarrel.
In the case of CBI v. State of Rajasthan [(2001) 3
SCC 333: AIR 2001 SC 668], it was held that when an order
3
ILR 2015 KAR 6039
31
under Section 156(3) of the Code is passed by a Magistrate,
any officer superior in rank or such officer in charge of the
police station can well exercise the power to conduct such
an investigation and all such investigation be deemed would
be an investigation conducted by an officer in charge of the
police station. It was held ‘It is permissible to any superior
officer of police to take over the investigation from such
officer in charge of the police station either suo motu either
on the direction of the Superior Officer or even that of the
Government’ Unfortunately, in the case on hand the
Commissioner did not take over investigation by himself but
directed the Assistant Commissioner of Police (Crimes) to
order a Police Officer of CCB unit to conduct the
investigation. Now it is argued for the respondents that the
Police Commissioner in the capacity of the superior officer
while exercising his power under Section 36 of the Code
delegated his power to the Assistant Commissioner of
Police, to take out investigation from local jurisdiction for
proper investigation through another police officer who is
not less than the rank of Station in charge. While presenting
such submission, the respondents fail to equate the
Commissioner of Police of City of Bangalore to the State as
contemplated in Article 12 of the Constitution of India to
authorize investigation by a different police officer of
different unit. Selection of investigating agency is neither
the prerogative of the complainant nor the choice of the
jurisdictional Magistrate that is also well settled by the
judicial pronouncements. It is the State Government or the
High Court in exercise of its power under Article 226 of the
Constitution that can order investigation by any other
specialized agency than the local police. It is the State
Government under the general powers of superintendence
under Section 3 of the Police Act, 1861 has the power to
direct further investigation under Section 173(8) of Cr. P.C.
(State of Bihar v. J.A.C. Saldanha [1980 SCC (Cri) 272] )
The Courts ordinarily do not intervene in the matter of
investigator by police, however, in exceptional
circumstances, the Court would intervene to protect the
personal/propriety rights of the citizen (Manohar Lal
Sharma v. Principal Secretary [AIR 2014 SC 666] ).
13. In Central Bureau of Investigation v. State of
Rajasthan (supra), while adjudicating the question of a
Magistrate’s power to direct investigation by C.B.I. under
Section 156(3) of the Code, the Apex Court, in the context
of Section 36 of the Code, observed thus:
32
“This means any other police officer, who is superior in
rank to an officer in charge of a police station, can exercise the
same powers of the officer in charge of police station and when he
so exercise the power he would do it in his capacity as officer in
charge of the police station. But when a magistrate orders
investigation under Section 156(3), he can only direct an officer in
charge of a police station to conduct such investigation and not a
superior police officer, though such officer can exercise such
powers by virtue of Section 36 of the Code. Nonetheless when
such an order is passed, any police officer, superior in rank of such
officer, can as well exercise the power to conduct investigation,
and all such investigations would then be deemed to be the
investigation conducted by the officer in charge of a police station.
Section 36 of the Code is not meant to substitute the magisterial
power envisaged in Section 156(3) of the Code, though it could
supplement the powers of an officer in charge of a police station. It
is permissible for any superior officer of police to take over the
investigation from such officer in charge of the police station either
suo motu or on the direction of the superior officer or even that of
the government.”
14. The above observation comes in aid to solve the
legal puzzle we are faced with. The Commissioner of Police
could have exercised his jurisdiction under Section 36 of the
Code and could have conducted the investigation by
himself. But in the absence of any statutory authority to
delegate the power of investigation to an inferior Officer, he
could not have assigned the case to the CCB unit. Power to
delegate investigation to some extent is vested with the
Station House Officer who is acting under Section 157(1) of
the Code, whereby on receipt of the information he can
depute his subordinate officer not below of such rank as the
State Government, may direct to proceed to investigate the
fact and circumstances of the case and if necessary, to take
measures for the discovery and arrest of the offender.
Except the provision at sub-Section (1) of Section 157 of
the Code, the concept of delegation of power cannot be
perceived either from the Code or Karnataka Police Act.
That answers the question raised supra in the beginning of
the discussion. Thereby, the order passed by the
Commissioner at Annexure ‘D’ is without authority and
propriety. Intervening and transferring the case in the
middle of investigation which would have been concluded by
this time is illegal. The petition is filed touching the legality
of registration of the complaint etc. Though the petitioners
are seeking to quash the complaint and FIR itself, the order
of the Learned Magistrate passed under Section 156(3) of
33
the Code convinces that he has perused the complaint
averments and felt it necessary for police investigation and
the said order does not call for interference. However, both
the complainant and the accused, if aggrieved by the final
report of the investigation, will have their opportunity to
challenge the said order.”
The learned senior counsel in terms of the aforesaid judgment
would seek to lay emphasis on the fact that the Commissioner
of Police, Bangalore City was a superior Officer who could take
up investigation to himself, but had no power to transfer the
investigation to another investigating officer. A perusal at the
paragraphs relied on by the learned senior counsel would
indicate that investigation in MAGADI SHANKAR RAO
KRISHNA MURTHY‘s case was a transfer beyond the
jurisdiction. The issue before the co-ordinate Bench was
whether the Commissioner of Police could have exercised his
jurisdiction under Section 36 of the Cr.P.C. to delegate the
power/assign the investigation to CCB unit. The Court holds that
the Commissioner of Police could have taken up the
investigation to himself, but could not have delegated or
assigned the case to CCB. The judgment in the case of MAGADI
SHANKAR RAO KRISHNA MURTHY is distinguishable on facts
without much ado.
11. The act of the 2nd respondent, has done in the case at
hand, is within his jurisdiction. He has directed transfer of
investigation from one Station to another. It is not a case
where he has usurped jurisdiction of another officer and
transferred the case to altogether a different Station House
Officer in a different jurisdiction. The learned senior counsel for
the petitioner has strenuously contended that it is not for the
complainant to choose the Investigating Officer. The
complainant, in the case at hand, has not chosen the
Investigating Officer but had complained that investigation was
not being conducted in a proper manner. On appreciating this
fact, the investigation has been shifted to another Police Station
within the same jurisdiction. Therefore, these submissions of the
learned senior counsel that it is a transfer and transfer is
vitiated by bias are all lacking consideration at this juncture.
34
12. Learned counsel for the 4th respondent/complainant
and the State in unison would submit that the investigation is
nearing completion and the Station House Officer of Marathhalli
Police Station is ready to file his final report before the
concerned Court. Therefore, interfering at this juncture, on this
plea of transfer of investigation from one Station to the other,
which does not even come under the power exercised under
Section 36 of the Cr.P.C. as it is within the jurisdiction and the
Additional Commissioner of Police exercising the power being a
superior officer of the said area, no warrant of interference is
called for. What are alleged are grave offences which would
require investigation and the petitioner in the garb of raising a
challenge to the transfer is wanting to scuttle investigation.
This cannot be permitted, apart from the fact that I find no legal
infirmity in the order.”
In the light of the aforesaid order considering identical circumstance
of change of Investigating Officer, the investigation being
transferred to a different Police Station on compelling facts, if it
would within the same Division, the superior officer under Section
36 of the Cr.P.C. was empowered to transfer the investigation.
Therefore, there is no legal infirmity as is projected by the learned
senior counsel for the petitioner taking recourse to Section 36 of
the Cr.P.C. Therefore, the submission of alleged error fails to find
merit in the light of the aforesaid reasons.
16. The other submission of the learned senior counsel for the
petitioner is that the offence is highly improbable for the father to
35
kill his wife. The same yardstick applies also to the children, that
why would they complain against the father. The vivid narration of
the daughter in the statement recorded under Section 164 of the
Cr.P.C. and the son, of a more vivid description but would clearly
mean that the petitioner is to be tried for both the offences. The
submission that there is no allegation of demand of dowry is of no
avail, as it is trite law that in the absence of demand of dowry also,
cruelty can form the fulcrum of the allegation. The allegation, I
mean the offence punishable under Section 498A of the IPC.
Therefore, the offence under Section 498A of the IPC prima facie
found and is to be tried.
17. The other offence is the one punishable under Section 302
of the IPC. When the evidence of both the children as quoted
hereinabove would pin the petitioner down albeit, prima facie, it is
ununderstandable as to how this Court would exercise its
jurisdiction under Section 482 of the Cr.P.C. on an offence under
Section 302 of the IPC against the accused and obliterate the trial.
If the children have complained against the petitioner narrating
vivid details, it becomes a matter for a full-blown trial, where the
36
petitioner has to come out clean. Any interference, in the case at
hand by quashment of proceedings, would run foul of the judgment
of the Apex Court in the case of KAPTAN SINGH v. STATE OF
UTTAR PRADESH4, wherein it has held as follows:
“…. …. ….
9.1. At the outset, it is required to be noted that in
the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
judgment and order [Radhey Shyam Gupta v. State of U.P.,
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
4
(2021) 9 SCC 35
37
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,
it becomes the job of the investigating authority at such
stage to probe and then of the court to examine
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can
be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
38in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
39
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
40
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed.”
(Emphasis supplied)
Finding the submissions of the learned senior counsel absolutely
meritless, there is no warrant to entertain the petition and lend a
protective umbrella to the petitioner. The petition draped in
imaginary legal infirmities has bereft of any redeeming foundation,
therefore, has to meet its dismissal.
18. For the aforesaid reasons, the petition lacking in merit is
dismissed.
41
Interim order if any operating, stands dissolved. Since the
issue is of the year 2018, it is necessary that the concerned Court
would conclude the proceedings at an outer limit of nine months
from the date of receipt of a copy of this order, if not earlier.
Consequently, pending applications if any, also stand
disposed.
SD/-
____________________
JUSTICE M.NAGAPRASANNA
bkp
CT:MJ
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