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Reserved on : 28.06.2024

Pronounced on : 19.07.2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19

TH

DAY OF JULY, 2024

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.9653 OF 2023

C/W

WRIT PETITION No.19687 OF 2023 (GM-RES)

WRIT PETITION No.23864 OF 2023 (GM-RES)

IN CRIMINAL PETITION No.9653 OF 2023

BETWEEN:

1 . MR. MOHAMED SHAHID

S/O MOHAMED YOUSUFF SAIT

AGED ABOUT 31 YEARS.

2 . MRS. HOORNAZ BANU

W/O MOHAMED YOUSUFF SAIT

AGED ABOUT 58 YEARS.

BOTH ARE RESIDING AT:

FLAT NO.F-01, NO.37/1,

BERLIE STREET

LANGFORD TOWN

INCLOVER HAVEN

BENGALURU – 560 025.

... PETITIONERS

(BY SRI SIDDHARTH B.MUCHANDI, ADVOCATE)

R

2

AND:

1 . STATE OF KARNATAKA

BY BASAVANAGUDI

WOMEN POLICE STATION

BASAVANAGUDI, BENGALURU – 560 070

REPRESENTED BY SPP

HIGH COURT BUILDING

BENGALURU – 560 001.

2 . MRS. AFREEN

W/O MOHAMED SHAHID

AGED ABOUT 26 YEARS

FLAT NO.102, 1

ST

FLOOR

197 FALCON, RENAISSANCE

R.V.ROAD CROSS

OPP. DASS COMPOUND

BASAVANAGUDI

BENGALURU – 560 004.

... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R1;

SRI C.V.NAGESH, SR. ADVOCATE FOR

SRI NAGARAJ R., ADVOCATE FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 O F

CR.P.C., PRAYING TO QUASH THE CHARGE SHEET AND THE ENTIRE

PROCEEDINGS IN C.C.NO.11622/2023 FOR THE ALLEGED OF FENCE

P/U/S.498-A, 504 R/W SEC.34 OF IPC AND SEC.3 AND 4 OF DP ACT

REGISTERED BY THE RESPONDENT NO.1 POLICE (BASAVANAG UDI

WOMEN P.S.,) PENDING ON THE FILE OF THE LEARNED 37t h

ADDITIONAL CMM COURT BENGALURU VIDE ANNEXURE C AND D.

3

IN WRIT PETITION No.19687 OF 2023

BETWEEN:

SMT. AFREEN

W/O MOHAMED SHAHID

AGED ABOUT 26 YEARS

RESIDING AT FLAT NO.102,

1

ST

FLOOR, 197

FALCON RENAISSANCE

R.V.ROAD CROSS,

OPP. DASS COMPOUND

BASAVANGUDI,

BENGALURU – 560 004.

... PETITIONER

(BY SRI C.V.NAGESH, SR. ADVOCATE FOR

SRI NAGARAJ R., ADVOCATE)

AND:

1 . STATE OF KARNATAKA

SHO, ASHOK NAGAR

POLICE STATION, BENGALURU

REPRESENTED BY HCGP,

HIGH COURT OF KARNTAKA

BENGALURU.

2 . MOHAMED SHAHID

AGED ABOUT 31 YEARS

RESIDING AT: FLAT F-01, INCLOVER

HAVEN NO.37/1, BERLIE STREET

LANGFORD TOWN,

BENGALURU – 560 025.

... RESPONDENTS

(BY SRI THEJESH P., HCGP FOR R1;

SRI SIDDHARTH B.MUCHANDI, ADVOCATE FOR R2)

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 FIRST INFORMATION REP ORT

REGISTERED IN CRIME NO.251 OF 2023 ANNEXURE-A FOR T HE

OFFENCES PUNISHABLE U/S 307, 380, 411, 506 R/W SECT ION 511

AND 34 OF THE INDIAN PENAL CODE, 1860 AND SECTION 3 OF

THE KARNATAKA PREVENTION AND ERADICATION OF INHUMAN E

EVIL PRACTICES AND BLACK MAGIC ACT, 2017 IN PURSUAN T TO

FALSE AND FRIVOLOUS COMPLAINT BY THE R2 ANNEXURE-B IN

PCR NO.51647 OF 2023 QUA THE PETITIONER.

IN WRIT PETITION No.23864 OF 2023

BETWEEN:

SHABAZ MASOOM

(WRONGLY MENTIONED AS

SHAHBAZ @ MASOOM)

S/O OF MR. SADATH ULLA

AGED ABOUT 31 YEARS

RESIDING AT NO. 50

RANAJI RAO ROAD

BASAVANAGUDI

BENGALURU - 560 004.

... PETITIONER

(BY SRI C.V.NAGESH, SR. ADVOCATE FOR

SRI MADHUR A.KALYANSHETTY, ADVOCATE)

AND:

1 . STATE OF KARNATAKA

REPRESENTED BY

STATION HOUSE OFFICER

ASHOK NAGAR POLICE STATION

BENGALURU – 560 025.

5

2 . MOHAMED SHAHID

S/O MOHAMED YOUSEF

AGED ABOUT 31 YEARS

RESIDING AT FLAT F-01

INCLOVER HAVEN

NO. 37/1, BERLIE STREET

LANGFORD TOWN

BENGALURU – 560 025.

... RESPONDENTS

(BY SRI THEJESH P. HCGP FOR R1;

SRI SIDDHARTH B.MUCHANDI, ADVOCATE FOR R2)

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 IMPUGNED COMPLAINT D ATED

21.02.2023 FILED BY R-2 PENDING ON THE FILES OF THE

LD.MAGISTRATE IN PCR NO.51647/2023. (ANNEXURE-B). I N SO

FOR AS PETITIONER CONCERN ONLY AND ETC.,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDERS ON 28.06.2024, COMING ON FOR PRONOUNCEMENT T HIS

DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

Protagonists in these cases are wife, husband, mother-in-law

and a friend of the wife. Criminal Petition No.9653 of 2023 is

preferred by the husband and mother-in-law of the w ife who are

accused Nos. 1 and 2 calling in question the proceedings initiated in

C.C.No.11622 of 2023 pending before the 37

th

Additional Chief

6

Metropolitan Magistrate, Bangalore arising out of crime in Crime

No.22 of 2023 registered for offences punishable un der Sections

498A, 323 and 34 of the IPC and Sections 3 and 4 of the Dowry

Prohibition Act, 1961 (‘the 1961 Act’ for short). Writ Petition

No.19687 of 2023 and Writ Petition No. 23864 of 2023 are

preferred by the wife who is accused No.1 and accused No.2 who is

said to be known to the wife calling in question cr ime in Crime

No.251 of 2023 registered pursuant to the private complaint filed

by the husband in PCR No.51647 of 2023 pending befo re the 29

th

Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru

for offences punishable under Sections 380, 411, 506, 307, 511 and

34 of the IPC and Section 3 of the Karnataka Preven tion and

Eradication of Inhuman Evil Practices and Black Mag ic Act, 2017

(‘the Act’ for short). Since these cases are interlinked, they are

taken up together and considered in this order.

2. Criminal Petition No.9653 OF 2023

:

The 1

st

petitioner is the husband of the complainant/2

nd

respondent and the 2

nd

petitioner is the mother–in-law. They are

accused Nos. 1 and 2 in C.C.No.11622 of 2023. Facts in brief

7

concerning this petition are that the 1

st

petitioner and the

complainant get married on 30-06-2018. After the ma rriage

registration in accordance with the Special Marriage Act, 1954 also

is put in place. The 1

st

petitioner/husband registers a complaint

before the jurisdictional Police which becomes a cr ime in Crime

No.85 of *2020 for offences punishable under Section 381 of the

IPC. The allegation was theft of money and gold jewels but against

whom was not stated. The police conduct investigation and file a ‘C’

report. It is the allegation of the husband that statement of the

complainant was recorded and notwithstanding the sa id recording

‘C’ report was deliberately filed. Between 30-07-2 020 and

14-04-2022 two children are born from the wedlock. A complaint

comes to be registered by the respondent/wife again st the

petitioners alleging offences punishable under Sections 498A, 323

r/w 34 of the IPC and Sections 3 and 4 of the 1961 Act on

24-01-2023. The Police after investigation filed a charge sheet not

for all the aforesaid offences, but for the offence punishable under

Sections 498A, 504 r/w 34 of the IPC and Sections 3 and 4 of the

1961 Act. The learned Magistrate taking cognizance of the offence

on 23-05-2023 issues process to the petitioners. It is then the

*Corrected vide Chamber order dated 28.08.2024

8

petitioners have knocked at the doors of this Court in the subject

petition. This Court, in terms of its order dated 06-10-2023, has

stayed further proceedings before the concerned Cou rt and the

same is in subsistence even today.

3. Writ Petition No.19687 of 2023: This writ petition is

preferred by the wife calling in question registration of a crime by

the husband. The incident that led to filing of the crime is that the

wife is alleged to have been thrown out along with her children at

around 4.00 a.m. on 11-06-2022 even without allowin g the wife to

take her documents and belongings, which happened d ue to

frustration of certain alleged illicit relationship of the husband with

another woman. On 10-07-2022 it is the further allegation that the

complainant/husband barged into the house of the wi fe’s father to

take away the second child who was 9 months then an d has

threatened that he would kill the wife and abduct the children and

take them outside India. On 13-01-2023 the wife fi les a petition

seeking custody of the minor children in G & WC No.26 of 2023. On

16-01-2023 the Family Court grants interim custody of minor

children in favour of the wife. After this comes c rime in Crime

9

No.22 of 2023 which is the subject matter of the co mpanion

petition. It appears during the investigation, the Police seized gold

ornaments allegedly belonging to the wife from the house of the

husband. The wife files an application under Sections 451 and 457

of the Cr.P.C., for release of gold and silver ornaments. During the

subsistence of the said application, the wife also initiates

proceedings for annulment of marriage in M.C.No.103 1 of 2023. It

is then the husband prefers a private complaint on 21-02-2023 and

the matter was referred for investigation and crime No.251 of 2023

comes to be registered thereto. It is registered f or offences

punishable under Sections 380, 411, 506, 307, 511 a nd 34 of the

IPC and Section 3 of the Karnataka Prevention and E radication of

Inhuman Evil Practices and Black Magic Act, 2017. The allegation

in the FIR is theft and practice of provisions of the Act. The wife,

after registration of the crime, has knocked at the doors of this

Court in the subject petition.

4. Writ Petition No.23864 of 2023 : This petition arises

from the very crime i.e., Crime No.251 of 2023. Acc used No.2 in

the crime is the petitioner, friend of the wife. The complainant is

10

again the same viz., the husband. Therefore, bifurc ation of the

petitions goes this way. Criminal Petition No.965 3 of 2023 is

preferred by the husband and the mother-in-law calling in question

proceedings in C.C.No.11622 of 2023 which arose out of crime in

Crime No.22 of 2023. The other petitions are at the stage of

investigation. They arise out of Crime in Crime No.251 of 2023.

5. Heard Sri Siddharth B. Muchandi, learned counse l

appearing for the petitioners in Crl.P.No.9653 of 2 023 and for

respondent No.2 in W.P.No. 19687 of 2023 and W.P.No .23864 of

2023, Sri P. Thejesh, learned High Court Government Pleader

appearing for respondent No. 1 in all the petitions, Sri C.V. Nagesh,

learned senior counsel appearing for respondent No. 2 in

Crl.P.No.9653 of 2023 and for the petitioner in W.P .No.19687 of

2023 and W.P.No.23864 of 2023.

6. The learned counsel for the petitioners in Cri minal Petition

No.9653 of 2023 would contend that none of the offe nces alleged

which are the ones punishable under Section 498A or Section 34 of

the IPC are met in the case at hand. A perusal of the summary of

11

the charge sheet, according to him, would not make out any

offence against these petitioners. Therefore, the proceedings are an

abuse of the process of law. He would seek quashmen t of the same

and places reliance upon plethora of judgments rend ered by the

Apex Court on the issue.

7. The learned senior counsel Sri C.V. Nagesh who appears

for the petitioners in both the writ petitions and for respondent No.2

in the criminal petition would vehemently contend that the husband

has gone on, registering crimes which are most unte nable, as the

crimes so registered are for the offences as afore-quoted. The theft

that the husband alleges has happened three years a go. The Black

Magic Act has been deliberately brought in without any iota of

ingredients and for offence punishable under Section 307 of the IPC

there is not even preparation or attempt to murder. He would

contend the private complaint is deliberately regis tered as a

counter-blast to what the wife has registered i.e., crime in Crime

No.22 of 2023. Matters of 3 or 4 years vintage are sought to be

agitated by the husband. He would seek quashment of proceedings

in Crime No.251 of 2023.

12

8. I have given my anxious consideration to the su bmissions

made by the respective learned counsel and have per used the

material on record.

9. The afore-narrated facts though not in dispute would

require a little elaboration. The factum of marriage is not in dispute.

A crime is registered by the husband in Crime No.85 of *2020

alleging theft of money and gold jewels. It is the averment in the

petition that the husband comes across various exchanges of chats

between one Shabaz Masoom, accused No.2 in Crime No .251 of

2023 and his wife. By then, the wife filed a complaint before the

jurisdictional Police on 24-01-2023 which comes to be registered as

crime in Crime No.22 of 2023 for the afore-quoted o ffences. The

Police, after investigation, file a charge sheet on 01-05-2023

against the husband and the mother-in-law. The husb and and the

mother-in-law have called that in question in the criminal petition.

The complaint is necessary to be noticed. It reads as follows:

“Date:24-01-2023

From:

Smt. Afreen,

*Corrected vide Chamber order dated 28.08.2024

13

W/o Mohamed Shahid,

Aged about 26 years,

R/a Flat No.102, 1

st

Floor,

197, Falcon Renaissance,

R.V.Road Cross,

Opp: Dass Compound,

Basavanagudi,

Bengaluru – 560 004.

To

The Basavanagudi Women’s PS,

No.3806, Thaygarajanagar,

Banashankari, Bangalore

Karnataka – 560 070.

Sir,

Sub: Complaint against (1) Sri Mohamed Shahid

S/o Mohamed Yousuff Sait (2) Hoornaz Banu

W/o Mohamed Yousuff Sait.

1. I write to inform you that on 30-06-2018 I was married

to the above mentioned Sri Mohamed Shahid. Since th e

date of my marriage, I have been under constant

harassment of Dowry and Cruelty at the hands of my

husband. After our marriage, myself and my husband

were residing at matrimonial house i.e. No.430, first floor,

11

th

Main, Viveknagar, Bangalore-560 047.

2. At the time of my marriage, my husband and his family

has demanded that they want to have big fat Muslim

wedding. Even though at the time of wedding we were

going through financial crisis, my father tried all his best

efforts to fulfill their wishes. On their demand our nikah

(marriage) took place at, Princes Green, Gate No.9,

Bangalore Palace Road, Palace Grounds, Bengaluru 56 0

006 and reception on the very next day at the same

place. The said marriage was registered under Speci al

Marriage Act, 1954 on 25-03-2019 at Sub-Registrar,

Shivajinagar, Bangalore. All the expenses of my wedding

was solely borne by my father. Further, my husband

family demanded for expensive furniture’s and my father

spent around Rs.3,00,000/- (Rupees three lakhs only) to

fulfill their lavish demands. My husband even asked my

14

parents to make an accommodation to all the guest from

groom side in a lavish hotel. My father thereby spe nt

around Rs.1,50,000/- (Rupees one lakh fifty thousan d

only) and booked rooms at Confident Pentagon at

Bangalore to lodge my In laws’ guests. My mother-in-law

(Accused No.2) demanded that my father should give at

least 1 kg of gold at the time of wedding as dowry, in

case if he failed to do so, they will call off my wedding.

Thereafter, my father having no other option succum bed

to the said demand and somehow managed to give 500

grams of gold to my husband.

3. Even after commencing the marriage my husband a nd his

family were no satisfied with the dowry sought. Day by

day, their demanded started to increase. My husband

wanted to invest in a business for which he wanted a

huge amount and for the same he started to demand w ith

my father. Apart from dowry demands, my husband use d

to constantly abuse me physically and also use foul

language to me and my family for not getting enough

dowry. My husband was supported by his relatives

including his mother (Hoornaz Banu). My mother in- law

used to independently assault me and also instigate my

husband to physically assault me and also abuse me for

getting more dowry. She created a hostile environment at

home and ensured that my husband pushed me out of

the house. I was put under severe physical and ment al

cruelty due to the said actions of my husband and h is

mother.

4. My husband and his mother were always blaming m e for

not paying enough amount and was asking me to call my

father to ask for money. I have reliably learnt that my

husband has several affairs. He used to constantly visit

girls and used to compare our physical relationship with

theirs. In the name of sex, my husband physically

assaulted me and forced me to engage in unnatural a cts

for which I never consented. Recently, I came across that

he is having an extra marital affair with one Ms. Madhuri

Verma. After coming to know about the same, I

immediately brought this to the Notice of the parents of

my husband as mentioned above. Instead of advising my

husband, the said parents told me that until I get huge

15

amount from my father for him to invest in the business,

they will encourage my husband in whatever illegal work

he does.

5. I state that my husband and his mother never us ed to let

me to out of the house and also restrained me from

talking to her parents. The respondents use to keep my

phone in his custody.

6. Due to suspicion, I checked my husband’s Whatsa pp

chats and I was shocked to see that he had been

constantly texting with Ms. Madhuri Verma along wit h

other girls. He had also sent sexually provoking messages

to many women including his ex-girl friends from hi s

college. I have been shattered and depressed due to the

above said actions of my husband. When I asked my

husband regarding his unethical activities, he got

aggressive and started to assault me physically. He

kicked me from his leg on my stomach, chest and oth er

private parts. I even informed my mother in-law

regarding all said events, but she being a woman without

even thinking the pressure I was undergoing, stated that

it is none of her business. She won’t involve with any of

these affairs and started to demand more money from my

father. She even stated that its okay for her son to have

several affairs, as I am not fulfilling his financial needs.

Later on 11-06-2022, both my husband and his mother

throwed me and my first child i.e., Inayath Hawwa away

from the matrimonial house. At this time, I had 8 months

baby, my second child i.e., Abdul Ahad Azad. I with out

having any other choice went to my father’s house along

with my two children. Hence, to save myself from th eir

clutches, I left from my matrimonial house along with my

two children and presently residing with my parents at

Jayanagar, Bengaluru.

7. At the time of sending me out of my matrimonial

residence, they took my phone, my gold ornament whi ch

was presented by my father and my relatives and

daughter’s gold, cloths, my passport and my daughte r

Inayath Hawwa passport and other documents. Without

any of said articles I went to my father’s house an d

started to stay there. I had no job and hence my second

16

child was only of 6 months old. I had to stay back at

home to look after him. My phone is in my husband’s

custody and I am afraid that he will misuse the same.

8. There were several attempts made by elders of m y

community to reconcile our marriage but none of the ir

efforts became successful. We have reached the poin t

where it makes no value or reason for this relationship. I

have finally made sure of my decision and hence all that

needs of reconcile will not add up anything to this matter.

We have understood that my husband and his mother a re

not considering this as a marriage instead it was a merely

a path for them to get money. The only purpose of t his

marriage to them was just to cause me a mental and

physical harassment.

In view of the above, I request you to take appropriate actions

against the above mentioned Accused and book them u nder

Sections 405, 420, 354 (Assault or criminal force to woman with

intent to outrage her modesty), 354(D) (stalking), 378 (theft),

497 (adultery) and 498A read with 34 of Indian Pena l Code,

1860 and also under Section 3 and 4 of the Dowry Pr ohibition

Act, 1961.

Yours sincerely,

Sd/- Smt. Afreen.”

The Police conduct investigation and file a charge sheet against

both the husband and the mother-law. The summary o f the charge

sheet, as obtaining in column No.17, reads as follows:

“17. Brief facts of the case

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A perusal at the complaint or the summary of the ch arge sheet

would not indicate any offence against the mother-i n-law, but

would clearly indicate various offences or ingredient of offences

against the husband. Hence, permitting further proceedings against

the mother-in-law, finding no allegation against her, would run foul

18

of the judgment of the Apex Court in the case of KAHKASHAN

KAUSAR v. STATE OF BIHAR

1

, wherein it is held as follows:

“…. …. ….

Issue Involved

“10. Having perused the relevant facts and

contentions made by the Appellants and Respondents, in

our considered opinion, the foremost issue which

requires determination in the instant case is wheth er

allegations made against the in-laws Appellants are in

the nature of general omnibus allegations and there fore

liable to be quashed?

11. Before we delve into greater detail on the

nature and content of allegations made, it becomes

pertinent to mention that incorporation of section 498A

of IPC was aimed at preventing cruelty committed up on a

woman by her husband and her in-laws, by facilitati ng

rapid state intervention. However, it is equally tr ue, that

in recent times, matrimonial litigation in the coun try has

also increased significantly and there is a greater

disaffection and friction surrounding the instituti on of

marriage, now, more than ever. This has resulted in an

increased tendency to employ provisions such as 498 A

IPC as instruments to settle personal scores agains t the

husband and his relatives.

12. This Court in its judgment in Rajesh Sharma v. State

of U.P.

4

, has observed:—

“14. Section 498-A was inserted in the statute with

the laudable object of punishing cruelty at the han ds of

husband or his relatives against a wife particularly when

such cruelty had potential to result in suicide or murder of a

woman as mentioned in the statement of Objects and

Reasons of the Act 46 of 1983. The expression ‘cruel ty’ in

Section 498A covers conduct which may drive the woman to

1

2022 SCC OnLine SC 162

19

commit suicide or cause grave injury (mental or physical) or

danger to life or harassment with a view to coerce her to

meet unlawful demand. It is a matter of serious concer n

that large number of cases continue to be filed under

already referred to some of the statistics from the Crime

Records Bureau. This Court had earlier noticed the fact that

most of such complaints are filed in the heat of the moment

over trivial issues. Many of such complaints are not bona

fide. At the time of filing of the complaint, implications and

consequences are not visualized. At times such compla ints

lead to uncalled for harassment not only to the accused but

also to the complainant. Uncalled for arrest may ruin the

chances of settlement.”

13. Previously, in the landmark judgment of this co urt

in Arnesh Kumar v. State of Bihar

5

, it was also observed:—

“4. There is a phenomenal increase in matrimonial

disputes in recent years. The institution of marria ge is

greatly revered in this country. Section 498-A IPC was

introduced with avowed object to combat the menace of

harassment to a woman at the hands of her husband and

his relatives. The fact that Section 498-A IPC is a cognizable

and non-bailable offence has lent it a dubious place of pride

amongst the provisions that are used as weapons rath er

than shield by disgruntled wives. The simplest way to

harass is to get the husband and his relatives arres ted

under this provision. In a quite number of cases, bed-ridden

grandfathers and grand-mothers of the husbands, their

sisters living abroad for decades are arrested.”

14. Further in Preeti Gupta v. State of Jharkhand

6

, it has

also been observed:—

“32. It is a matter of common experience that most

of these complaints under section 498A IPC are filed in the

heat of the moment over trivial issues without proper

deliberations. We come across a large number of such

complaints which are not even bona fide and are filed with

oblique motive. At the same time, rapid increase in the

number of genuine cases of dowry harassment are also a

matter of serious concern.

33. The learned members of the Bar have enormous

social responsibility and obligation to ensure that the social

fiber of family life is not ruined or demolished. They must

ensure that exaggerated versions of small incidents should

20

not be reflected in the criminal complaints. Majority of the

complaints are filed either on their advice or with their

concurrence. The learned members of the Bar who belo ng

to a noble profession must maintain its noble traditions and

should treat every complaint under section 498A as a basic

human problem and must make serious endeavour to help

the parties in arriving at an amicable resolution of that

human problem. They must discharge their duties to th e

best of their abilities to ensure that social fiber, peace and

tranquility of the society remains intact. The member s of

the Bar should also ensure that one complaint should n ot

lead to multiple cases.

34. Unfortunately, at the time of filing of the

complaint the implications and consequences are not

properly visualized by the complainant that such complaint

can lead to insurmountable harassment, agony and pai n to

the complainant, accused and his close relations.

35. The ultimate object of justice is to find out the

truth and punish the guilty and protect the innocent. To find

out the truth is a herculean task in majority of thes e

complaints. The tendency of implicating husband and all his

immediate relations is also not uncommon. At times, e ven

after the conclusion of criminal trial, it is difficult to

ascertain the real truth. The courts have to be extremely

careful and cautious in dealing with these complaints and

must take pragmatic realities into consideration whil e

dealing with matrimonial cases. The allegations of

harassment of husband's close relations who had been

living in different cities and never visited or rarely visited

the place where the complainant resided would have an

entirely different complexion. The allegations of th e

complaint are required to be scrutinized with great care and

circumspection.

36. Experience reveals that long and protracted

criminal trials lead to rancour, acrimony and bitterness in

the relationship amongst the parties. It is also a matter of

common knowledge that in cases filed by the complain ant if

the husband or the husband's relations had to remain in jail

even for a few days, it would ruin the chances of amicable

settlement altogether. The process of suffering is extremely

long and painful.”

15. In Geeta Mehrotra v. State of UP

7

, it was observed:—

21

“21. It would be relevant at this stage to take note of

an apt observation of this Court recorded in the matter

of G.V. Rao v. L.H.V. Prasad reported in (2000) 3 SCC

693 wherein also in a matrimonial dispute, this Court had

held that the High Court should have quashed the complaint

arising out of a matrimonial dispute wherein all fa mily

members had been roped into the matrimonial litigati on

which was quashed and set aside. Their Lordships observed

therein with which we entirely agree that:

“12…There has been an outburst of matrimonial

dispute in recent times. Marriage is a sacred ceremony, main

purpose of which is to enable the young couple to settle down

in life and live peacefully. But little matrimonial skirmishes

suddenly erupt which often assume serious proportio ns

resulting in heinous crimes in which elders of the family are

also involved with the result that those who could have

counselled and brought about rapprochement are rend ered

helpless on their being arrayed as accused in the criminal case.

There are many reasons which need not be mentioned h ere for

not encouraging matrimonial litigation so that the parties may

ponder over their defaults and terminate the disputes amicably

by mutual agreement instead of fighting it out in a court of law

where it takes years and years to conclude and in that process

the parties lose their “young” days in chasing their cases in

different courts.” The view taken by the judges in this matter

was that the courts would not encourage such disputes.”

16. Recently, in K. Subba Rao v. The State of Telangana

8

,

it was also observed that:—

“6. The Courts should be careful in proceeding

against the distant relatives in crimes pertaining to

matrimonial disputes and dowry deaths. The relatives of the

husband should not be roped in on the basis of omnibus

allegations unless specific instances of their involvement in

the crime are made out.”

17. The abovementioned decisions clearly

demonstrate that this court has at numerous instanc es

expressed concern over the misuse of section 498-A IPC

and the increased tendency of implicating relatives of the

husband in matrimonial disputes, without analysing the

long term ramifications of a trial on the complaina nt as

well as the accused. It is further manifest from th e said

judgments that false implication by way of general

22

omnibus allegations made in the course of matrimoni al

dispute, if left unchecked would result in misuse o f the

process of law. Therefore, this court by way of its

judgments has warned the courts from proceeding

against the relatives and in-laws of the husband wh en no

prima facie case is made out against them.

18. Coming to the facts of this case, upon a perusal of the

contents of the FIR dated 01.04.2019, it is revealed that general

allegations are levelled against the Appellants. The complainant

alleged that ‘all accused harassed her mentally and threatened

her of terminating her pregnancy’. Furthermore, no specific and

distinct allegations have been made against either of the

Appellants herein, i.e., none of the Appellants hav e been

attributed any specific role in furtherance of the general

allegations made against them. This simply leads to a situation

wherein one fails to ascertain the role played by each accused in

furtherance of the offence. The allegations are therefore general

and omnibus and can at best be said to have been ma de out on

account of small skirmishes. Insofar as husband is concerned,

since he has not appealed against the order of the High court,

we have not examined the veracity of allegations made against

him. However, as far as the Appellants are concerne d, the

allegations made against them being general and omn ibus, do

not warrant prosecution.

19. Furthermore, regarding similar allegations of

harassment and demand for car as dowry made in a pr evious

FIR. Respondent No. 1 i.e., the State of Bihar, contends that the

present FIR pertained to offences committed in the year 2019,

after assurance was given by the husband Md. Ikram before the

Ld. Principal Judge Purnea, to not harass the Respondent wife

herein for dowry, and treat her properly. However, despite the

assurances, all accused continued their demands and

harassment. It is thereby contended that the acts constitute a

fresh cause of action and therefore the FIR in question herein

dated 01.04.19, is distinct and independent, and ca nnot be

termed as a repetition of an earlier FIR dated 11.12.2017.

23

20. Here it must be borne in mind that although the

two FIRs may constitute two independent instances,

based on separate transactions, the present complai nt

fails to establish specific allegations against the in-laws

of the Respondent wife. Allowing prosecution in the

absence of clear allegations against the in-laws

Appellants would simply result in an abuse of the p rocess

of law.

21. Therefore, upon consideration of the relevant

circumstances and in the absence of any specific ro le

attributed to the accused appellants, it would be u njust if

the Appellants are forced to go through the tribula tions of

a trial, i.e., general and omnibus allegations cann ot

manifest in a situation where the relatives of the

complainant's husband are forced to undergo trial. It has

been highlighted by this court in varied instances, that a

criminal trial leading to an eventual acquittal als o inflicts

severe scars upon the accused, and such an exercise

must therefore be discouraged.”

In the light of the facts obtaining in the case at hand and the

judgment of the Apex Court supra, permitting further proceedings

against the mother-in law would become an abuse of the process of

law, but the same does not go with the husband. The husband will

have to come out clean in a full blown trial in vie w of serious

allegations made against him.

24

W.P.No.19687 OF 2023 – Crime No.251 of 2023:

10. Facts succinctly stated are as follows:

After registration of the crime by the wife which becomes a

crime in Crime No.22 of 2023, the husband registers a private

complaint. The private complaint is registered on 21-02-2023 which

is after registration of crime in Crime No.22 of 2023 which was on

24-01-2023. The allegation is against the wife and the alleged

friend of the wife. The aforesaid complaint is ref erred for

investigation under Section 156(3) of the Cr.P.C., It then becomes

a crime in Crime No.251 of 2023. The offences alleged are attempt

to murder, cheating, theft, preparation to commit an offence which

is punishable beyond three years and Section 3 of the Black Magic

Act. The registration of the crime in Crime No.251 of 2023 has led

the wife and her friend before this Court in two se parate writ

petitions.

11. The learned senior counsel Sri C. V. Nagesh re presenting

the petitioners in both these cases would vehemently contend that

the very registration of the complaint by the husband is an abuse of

the process of law. It is his contention that theft that allegedly took

25

place in 2020, is sought to be complained, after 3 years, in the year

2023. For the attempt to murder, there is not even a titter of

ingredient. The provisions of the Act are without rhyme or reason --

alleged. He would seek quashment of entire proceedi ngs, for it to

be saved from law being abused.

12. Per contra, the learned counsel appearing for the

complainant/husband would contend that he saw so ma ny

whatsapp chats between the wife and accused No.2, h er friend in a

conspiracy to kill the mother-in-law and the husband by practice of

black magic. It is, therefore, the provisions of the Black Magic Act

are complained of. He would admit the fact that the theft has taken

place in the year 2020. Since the wife and her fri end have

discussed about finishing of the husband and the mo ther-in-law,

the offence under Section 307 of the IPC is appropriately laid. He

would seek dismissal of the petitions.

13. I have given my anxious consideration to the s ubmissions

made by the respective learned counsel and have per used the

material on record qua the subject petitions.

26

14. To consider the submissions of the respective learned

counsel it is necessary to notice the genesis of the problem. The

genesis lies in the private complaint registered by the husband

invoking Section 200 of the Cr.P.C., Certain parag raphs of the

complaint in P.C.R.No.51647 of 2023 are germane to be noticed

and they are extracted hereunder for the purpose of quick

reference:

“…. …. ….

5. The complainant was shocked in January 2020

when several gold and diamond jewelry viz., four

bangles, 1 diamond set, 3 gold pendants and three t hick

bangles, belonging to complainant parents which wer e

kept in the almirah in his house, went missing. At that

point of time, complainant enquired with his parent s

regarding the whereabouts of the jewelries. However ,

none of them had any idea as to where it was and wh o

had taken them. Complainant and his parents felt th at

their maid Mrs. Karpakka had stolen these articles, but

when police investigated and interrogated maid it w as

found that it was not her and later, the complainan t

realized that it was accused Nos. 1 and 2 who had

conspired together and hatched a plan to steal valu able

articles and cash for their ulterior motives, which is

detailed herein below. Photos of jewelry and a few

invoices are herewith produced as Document No.7 and 8.

CD (1) containing the photos of jewelry is herewith

produced as Document No.9.

6. In the month of July 2021, the complainant was

shocked to find out that his diamond studded ring, pendant and

earring along with two gold bangles worth several lakh of rupees

went missing from his almirah. At that point of tim e, since

lockdown restrictions were imposed in lieu of the C ovid-19

27

pandemic and since there were no visitors to compla inant

house, the complainant started suspecting that one of their

family members was behind it.

7. The complainant state that he had a suspicion on

accused No.1 and when complainant checked accused N o.1’s

phone in the month of June 2022, complainant was sh ocked to

find out that accused No.1 was having a love affair with the

accused No.2 who is a resident of No.50, Ranoji Rao Road,

Basavanagudi, Bangalore 560 004. The accused No.2 w ould

constantly contact and chat with him through the me ssaging

application called IMO.

8. The series of conversations which ran to about 4200

messages, for the period between April to June 2022 , wherein

accused No.1 had conspired with accused No.2 and ha d

committed multiple acts of theft of money, jewelry, etc. from

complainant house totally valuing and amounting to Rs.19 lakh

(Rs.1 lakh of cash and Rs.18 lakhs worth of gold).

9. The complainant state that chats/conversations

also revealed that accused used to frequently abuse

complainant’s mother Mrs. Hoornaz Banu and had stat ed

and expressed that complainant’s mother brings bad luck

to accused No.1. The accused No.2 was involved in t he

practice of black magic and other evil practices. T he

Accused No.1 and 2 had also planned to murder

complainant mother and that accused No.2 was guidin g

accused No.1 and instructing her with the use of bl ack

magic techniques and evil practices. It was only th en

complainant realized that accused no.1 was the one who

had stolen the jewelries, money etc. for fulfilling such evil

practices. There were also conversations regarding the

expenses which would be involved and how accused No .1

would arrange the same. The accused No.1 had stolen

money from complainant and handed it over to accuse d

No.2 as ‘supari amount’ to meet the expenses involv ed in

the use of black magic and other evil practices whi ch

accused No.1 had planned and attempted to murder

complainant mother and such offences have been

committed by the accused on various dates between 1 4-

04-2022 to 4-6-2022.

28

10. Since complainant had purchased the phone for

accused No.1, the complainant kept that phone with him and

complainant also got this phone examined by a scien tific

forensic expert, who has confirmed the contents on the phone.

Print out of the relevant extracts IMO chats is pro duced as

Document No.10 , DVD (2) containing the IMO chats recording

is produced as Document No.11, and Copy of the Forensic

Expert report dated 06-09-2022 is produced as Document

No.12.

11. The complainant confronted the accused No.1 and

initially she gave evasive answers and excuses and started

making false and baseless allegations against complainant and

his mother and also threatened that accused No.1 filed a false

complaint against complainant and his mother, which she has

also done recently. On 11-06-2022, accused No.1 vol untarily

took children and left the marital home. During the telephone

conversation with the complainant the accused has a dmitted

about commission of the offence by her too which is recorded as

audio recordings by the complainant. Also while cha tting on

Whatsapp with the complainant, the accused used her mother’s

mobile phone and also admitted her wrong doings. Pr int out of

the transcripts of the voice recordings reflecting the admissions

by the accused No.1 is produced as Document No.13 , CD (3)

containing the audio recordings is produced as Document

No.14 and the printouts of the whatsApp chats is produced as

Document No.15 .

12. The complainant was hoping that accused No.1

will change her ways but her conduct depicts that s he

wants to get rid of complainant and his family and elope

with accused No.2.Since the accused No.1 was caught

red-handed by the complainant, to set up a false cl aim, to

exert pressure upon the complainant by filing false cases,

and to ensure that the complainant cannot meet the

children, whom he is very attached to, the accused No.1

has instituted false and baseless complaint and got a

false FIR registered against him and his mother and had

also filed a false petition before the Hon’ble Fami ly Court,

Bengaluru.

13. The accused No.1 has conspired and connived

with the accused No.2 and in pursuance of the said

conspiracy, the accused No.1 has stolen valuable ar ticles

29

from the house of the complainant i.e., gold and si lver

jewelry and cash all worth about Rs.19 lakhs and th e

accused Nos. 1 and 2 have chatted in the form of

thousand of messages on the messaging app IMO to

conspire to murder the mother of the complainant wi th

the use of black magic techniques and evil practice s and

the accused No.1 handed over the money and jewelry to

accused No.2 as ‘supari amount’ to meet the expense s

involved in the use of black magic and other evil p ractices

and thereby attempted to murder the mother of the

complainant and thereby the accused No.1 and 2 have

committed the offences punishable under Sections 38 0,

411, 506, 307 r/w. 511 IPC, Section 34 IPC and Sect ion 3

of the Karnataka Prevention and Eradication of Inhu mane

Evil Practices and Black Magic Act, 2017.

14. The aforesaid offences have been committed by t he

accused Nos. 1 and 2 i.e., conspiracy, theft and preparation and

attempt to murder and mother of the complainant on various

dates between 14-04-2022 to 4-06-2022.

15. The complainant filed a written complaint dated

13.02.2023 against the accused No.1 and 2 to the Po lice

Inspector, Ashok Nagar Police Station, Bengaluru an d also

complaint dated 15-02-2023 to the Commissioner of P olice,

Bangalore. However, no action has been taken. Thoug h they

called for discussion, the police are not willing to register the

FIR in spite of there being clear and clinching evidence against

the accused as detailed supra. Copy of the complaint dated 13-

02-2023 to the Police Inspector along with postal receipt and

complaint dated 15-02-2023 to the Commissioner of P olice are

produced herewith as Document Nos.16 and 17. Copy of the

Aadhar card of the complainant is produced herewith as

Document No.18 .

16. The complainant submits that the accused No.1 a nd

her family are highly influential persons and have connections

with the Police department and politicians. Even if FIR is

registered, there would be no honest and proper investigation in

the crime and the interest of the complainant will be sabotaged

and justice will suffer. Hence, the complainant presents this

private complaint under Section 200 Cr.P.C. with a prayer to

30

take cognizance and proceed in accordance with Sect ion 200,

190 and 204 Cr.P.C.

17. The complainant has not filed any other complai nt

either before the Hon’ble Court or any other Court on the same

cause of action against the accused which has been registered

or being investigated.

Wherefore, the complainant in the above case prays that

this Hon’ble Court be pleased to pass an order, tak ing

cognizance of the offences punishable under Sections 380,

411, 506, 307 r/w. 511 IPC, Section 34 IPC and Sect ion 3

of the Karnataka Prevention and Eradication of Inhu mane

Evil Practices and Black Magic Act, 2017 secure the

presence of the accused and punish them in accordan ce with

law, to meet the ends of justice.”

(Emphasis added)

At paragraph-7 it is the submission of the husband that he checked

the mobile phone of the wife and comes to know a few facts. Series

of conversations, according to the complaint, took place about theft

and also using black magic techniques and evil practices to murder

both the husband and the mother-in-law. It is the allegation that

the wife had stolen money from the husband and hand ed it over to

her friend as a ‘supari’ amount. It is his submission that those

whatsapp chats have admittedly led to the registrat ion of crime.

Since they are very serious in nature, they should be investigated

into. I decline to accept the said submission of the learned counsel

appearing for the husband.

31

15. At the outset, I have no hesitation to hold tha t the

husband has registered the crime, as a counter-blast to what the

wife has registered in Crime No.22 of 2023, as the narration in the

complaint of the husband supra is trying to connect the dots with

regard to the theft of jewels and practice of black magic. The

complaint itself narrates that the theft has happened in the year

2020 and also in the month of July 2021. The compla int is filed, as

observed hereinabove, on 21-02-2023. The husband n arrates he

was shocked at the theft, that happened 3 years ago. It looks like

the impact of shock has happened 3 years later. Whether whatsapp

chats that the husband seeks to place reliance upon can be taken

note of, to permit investigation into the crime for the aforesaid

offences, is what is to be noticed. There are a few whatsapp chats

that are appended to the statement of objections fi led by the

husband. There are four particular chats to support the allegation,

according to the learned counsel appearing for the husband. They

read as follows:

“I have told mom n dad indirectly many times ya he scholds me

yeh sab we should not thnk nor do aaisa he tells ya

06.10 p.m.

Hmmm 06.10 p.m.

32

I want to finish kaam ya but if I tel dad he won’t agree oly ha”

06.10 p.m.

“Once saas goes I ll keep all the money ya 01.07 p .m.

Bas Kaam chacha agree n finish of 01.08 p.m.”

“Yes ya once she goes everything will be in ur control

12.55 p.m.

He don’t care ya!! Now it’s ok Once kids start going school I ll

need money ya n if sas is dr she won’t allow oly husband to give

12.56 p.m.

She should go soon ya aab 12.56 p.m.

Now she will ya 12.56 p.m.

Her time has come 12.56 p.m.”

“Done ya 07.21 a.m.

U took kya 07.22 a.m.

N 2400 dollars 07.22 a.m.

Yes ya 07.22 a.m.

Just dollars kya 07.22 a.m.

N chiller hai ya Dubai ke n dollars also chiller 07.23 a.m.

Thk yai ya 07.23 a.m.

N India money 2k 07.23”

Section 307 of the IPC reads as follows:

“307. Attempt to murder .—Whoever does any act with

such intention or knowledge, and under such circums tances

that, if he by that act caused death, he would be g uilty of

murder, shall be punished with imprisonment of eith er

description for a term which may extend to ten years, and shall

also be liable to fine; and if hurt is caused to any person by such

act, the offender shall be liable either to imprisonment for life,

or to such punishment as is hereinbefore mentioned.

33

Attempts by life convicts.—When any person offending

under this section is under sentence of imprisonment for life],

he may, if hurt is caused, be punished with death.”

Section 307 deals with attempt to murder. It directs that whoever

does any act with such intention or knowledge and u nder such

circumstances, if he by that act caused death, he would be guilty of

murder. The crux of the matter is intention or kno wledge to

perform an act and if performed would eventually be comes a

murder. Therefore, it is attempt to murder. The issue is that the

husband and the mother-in-law were sought to be fin ished by

practice of black magic. Therefore, Section 3 of the Black Magic Act

is invoked. Section 3 of the Act reads as follows:

“3. Prevention and eradication of inhuman evil

practices and black magic .—(1) No person shall himself

or through any other person commit, promote, propag ate

or practice or cause to promote, propagate or pract ice

inhuman, evil practices and black magic specified i n the

schedule.

(2) From the date of commencement of this Act,

Commission of any act of inhuman, evil practices an d

black magic and any advertisement, practice, propag ation

or promotion of inhuman, evil practices and black m agic

in violation of provision of this Act by any person by

himself or through any other person shall constitut e an

offence under the provisions of this Act and the person

guilty of such offence shall on conviction be punis hed with

imprisonment for a term which shall not be less than one year

but which may extend to seven years and with fine w hich shall

34

not be less than Five thousand rupees but which may extend to

fifty thousand rupees:

Provided that, as a consequence of offence under this Act

if death of the victim occurs, the offender, shall be deemed to

have committed an offence of murder as defined in

Section 300 of Indian penal code, 1860 (Act 45 of 1 860) and

shall be punishable under Section 302 of the said code or if such

act has endangered life of the victim or has resulting in injury to

any person, the offender shall be deemed to be guilty of having

committed an offence of attempt to murder as define d under

Section 307 of the Indian penal code, 1860 (Act 45 of 1860) and

shall be punishable accordingly or if consequence o f such

offence, the victim commits suicide, then the offender shall be

deemed to have abetted commission of suicide, as de fined and

punishable under Section 306 of Indian penal code, 1860 (Act

45 of 1860) and shall be punishable accordingly.

(3) Whoever abets the commission or attempt the

commission of any act or offence punishable under S ub-

section (2), shall be deemed to have committed that

offence and shall on conviction be punished with th e

same punishment for such offences in Sub-section (2 ).

(4) Consent of the victim shall not be a defense un der

this section.

(5) The offence punishable under Sub-section (2), s hall

be cognizable and non-bailable.”

(Emphasis supplied)

Section 3 makes it an offence on practice of black magic as found in

the schedule. The schedule reads as follows:

“(1) Performing any inhuman, evil act and black ma gic

in search of precious things, bounty and hidden

treasure for similar reasons in the name of such as

banamathi, Mata-Mantra, assaulting any person,

parading naked or put a ban on his daily activities

35

or instigate advice or encourage committing of such

inhuman acts.

(2) To create an impression by declaring that a po wer

inapprehensible by senses has influenced one's

body or that a person has possessed such power

thereby create fear in the minds of others or to

threaten others of evil consequences for not

following the advice of such person or deceive

defraud and deter him.

(3) Under the pretext of expelling the ghost, assa ulting

by tying the person with rope or chain, beating by

stick or whip to make the person drink foot wear

soaked water, giving chilli smoke hanging a person

to roof fixing with rope or by a hair or pluck his

hair, causing pain by way of touching heated object

to organs or body of a person, forcing a person to

perform sexual act in the open, practice inhuman

acts, putting urine or human excreta forcibly in th e

mouth of a person or practice any such acts.

(4) By making the persons believe that a particula r person

practices banamathi, Mata-Mantra black magic or bri ngs

under the influence of ghost or diminishes the milk ing

capacity of a cattle by mantra-tantra or similarly accusing

a particular person that, he brings misfortune to others or

is a cause for spread of diseases and thereby making the

living of such person miserable, troublesome or difficult,

to declare a person as saithan or incarnation of saithan.

(5) To create a panic in the minds of public in general by way

of invoking ghost or mantras or threaten to invoke ghost

creating an impressing that there is ghostly or warth of

power inapprehensible by senses causing physical injuries

and preventing a person taking medical treatment,

instead diverting him to practice inhuman evil and aghory

acts or treatment threatening a person with a death or

causing physical pains or causing financial loss by

practicing or tend to practice black magic or inhuman act.

(6) Claiming to perform surgery by fingers or clai ming to

change the sex of a foetus in womb of a woman.

36

(7) To create an impression that special supernatural powers

are present in himself, incarnation of another person or

holy spirit or that the devotee was his wife, husband or

paramour in the past birth thereby indulging into sexual

activity with such person.

(8) Persuading, propagating or facilitating rituals that involve

self-inflicted injuries such as hanging from a hook :

inserted into the body (sidi) or pulling a chariot by a hook

inserted into the body;

(9) Persuading, propagating or facilitating rituals involving

harm inflicted on children in the name of curing them,

such as throwing them on thorns or from heights;

(10) Practicing evil practices against women by fo rcing

isolation, prohibiting re-entry into the village or

facilitating segregation of menstruating or postpartum

women; and subjecting women to inhuman and

humiliating practices such as parading them naked in the

name of worship or otherwise, such as “betthale seve”;

(11) Forcing any person to carry on evil practices such as

killing of an animal by biting its neck (gaavu), that cause

harm to public health nuisance.

(12) Facilitating any person or persons to roll over (urulu seve)

on the leaves of left over food by other persons in any

public or/and religious places, or similar practices that

violate human dignity.

(13) Coersing any person or persons to perform fir e-walk at

the time of jatras and Religious festivals, causing physical

injury.

(14) The practice of piercing from rods from one side of, jaw to

another side of the jaw including the tounge i.e.,

“baibiga” practice.

(15) Pelting of stones in the name of Banamathi, Mata-Mantra

and mantra-tantra on the residential houses during night

or day.

37

(16) Prohibiting and preventing a person from taking medical

treatment in case of dog, snake or scorpion bite an d

instead of giving him treatment like mantra-tantra,

ganda-dora or such other things.”

(Emphasis supplied)

The learned counsel appearing for the husband place s heavy

reliance upon clauses (1), (2) and (3) supra. The very schedule

commences with the words ‘ Performing any inhuman, evil act

and black magic’. Therefore, there should be completion of an

act, as it reads “performing”. Clause (3) is beating and whipping

to expel the ghost from any human body . The rest of the clause

is self-explanatory. If the schedule is pitted against the facts

obtaining in the case at hand, where from all these ingredients of

the schedule spring for a complaint to be registered under the Act is

ununderstandable. There is no act performed, neither an attempt

to perform any of the ingredients of the Black Magi c Act. The

Whatsapp chats are completely vague. Therefore, the husband has

undoubtedly indulged in a proceeding, as a counterb last to the

registration of the crime by the wife. The other offences alleged are

38

the ones punishable under Sections 380 and 511 of t he IPC.

Sections 380 and 511 of the IPC read as follows:

“380. Theft in dwelling house, etc.- Whoever commits

theft in any building, tent or vessel, which building, tent or

vessel is used as a human dwelling, or used for the custody of

property, shall be punished with imprisonment of ei ther

description for a term which may extend to seven ye ars, and

shall also be liable to fine.”

…. …. ….

“511. Punishment for attempting to commit offences

punishable with imprisonment for life or other

imprisonment.- Whoever attempts to commit an offence

punishable by this Code with imprisonment for life or

imprisonment, or to cause such an offence to be committed, and

in such attempt does any act towards the commission of the

offence, shall, where no express provision is made by this Code

for the punishment of such attempt, be punished wit h

imprisonment of any description provided for the offence, for a

term which may extend to one-half of the imprisonme nt for life

or, as the case may be, one-half of the longest ter m of

imprisonment provided for that offence, or with such fine as is

provided for the offence, or with both.”

The complaint narrates that the husband was shocked to know of

the alleged theft that had occurred 3 years ago by the wife. An act,

3 years ago, is said to have had an impact upon the husband on the

date of registration of the crime. None of the ing redients as

necessary under Section 511 of the IPC is also present in the case

at hand. It is trite law that the learned Magistrate prior to referring

39

the matter for investigation on a complaint filed invoking Section

200 of the Cr.P.C. cannot so do mechanically. The order referring

the matter for investigation should bear application of mind in order

to nip, frivolous cases being filed, at its bud. A perusal at the order

of reference would not indicate even a semblance of application of

mind. A plain and simple marital discord is dresse d with black

magic, theft and attempt to murder. In the teeth of the aforesaid

findings, if the proceedings against the petitioners in *Crime No.251

of 2023 are permitted to continue, it would become an abuse of the

process of the law and result in patent injustice.

16. For the aforesaid reasons, the following:

O R D E R

(i) Criminal Petition No.9653 of 2023 is allowed in

part and the proceedings in C.C.No.11622 of 2023

pending before the 37

th

Additional Chief Metropolitan

Magistrate stand quashed qua accused No.2, mother-in-

law only. The Criminal Petition insofar as the

husband/accused No.1 is concerned, it is dismissed.

*Corrected vide Chamber order dated 28.08.2024

40

(ii) Writ Petition Nos.19687 of 2023 and 23864 of

2023 are allowed and the registration of crime in

Crime No.251 of 2023 stands quashed.

Consequently, pending applications if any, also st and

disposed.

Sd/-

(M.

NAGAPRASANNA )

J

UDGE

bkp

CT:SS