Nirmala and Others vs The State of Karnataka and Others

S.N. Satyanarayana, J.—1. Accused Nos. 1 and 2 in C.C. No. 483/2013 which is with reference to the offences punishable under Sections 352, 448, 452, 453, 504, 506 read with Section 34 of IPC registered with JMFC, Bellary have come up in this petition seeking quashing of the same.

Admittedly, the proceeding in C.C. No. 483/2013 is registered pursuant to an order passed in private complaint in P.C. No. 157/2011 on the file of the very same Court, registered for very same offences. The complainant in P.C. No. 157/2011 is one Smt. Anusuyamma who is respondent No. 2 in this proceeding. Petitioner No. 1-Nirmala was the wife of Vijayaprasad, son of Anasuyamma, their marriage is no longer in force in view of decree of judicial separation passed in M.C. No. 56/2003 on the file of the I Additional Senior Civil Judge, Bellary. The petition for judicial separation was filed by Smt. Nirmala against her husband Vijayaprasad and the same was allowed in the month of November, 2009. The records would also disclose that thereafter proceeding in M.C. No. 43/2010 is initiated by her husband Vijayaprasad for decree of divorce which is pending consideration on the file of the Senior Civil Judge, Bellary.

When the matter stood thus, it is the accusation of respondent No. 2 that petitioner No. 1 herein who is accused No. 1 in C.C. No. 483/2013 has forcibly occupied the house belonging to her, which is situated in Bellary. While trying to occupy the said house forcibly, she has taken the assistance of her sister''s son who is accused No. 2 in C.C. No. 483/2013. The private complaint which was filed in P.C. No. 157/2011 by Smt. Anusuyamma is through her Power of Attorney holder, who is none other than her son Vijayaprasad. The said Power of Attorney was for filing a complaint against the petitioners for the offence of trespassing into her house. Based on the said complaint, the sworn statement of Vijayaprasad son of respondent No. 2 was recorded, cognizance is taken with reference to the offences punishable under Sections 352, 448, 452, 453, 504, 506 read with Section 34 of IPC by order dated 30.03.2013. That order was challenged before the Principal Sessions, Judge, Bellary by petitioner Nos. 1 and 2 on the ground that the offence alleged against them does not amount to offence for the reason that petitioner No. 1 has right to seek a share in the property belonging to her mother-in-law, therefore she stayed in the house, the same cannot be considered as an offence punishable under Section 448 of IPC.

It is further stated that though private complaint was sought to be filed by her mother-in-law under the Power of Attorney given to her son for the offence punishable under Section 448, various other offences, which are alleged in the private complaint, are not permissible. Another grievance is that, in the order dated 30.03.2013 the cognizance which was taken is not with reference to any specific offence, as could be seen from the order dated 30.03.2013. In that view of the matter, taking cognizance of the offence alleged against her for the offences punishable under Sections 352, 452, 453, 504, 506 read with Section 34 of IPC is erroneous and the same is required to be quashed.

It is seen that the Sessions Judge, Bellary on going though the entire order and also the material available on record has rejected her prayer in Crl.R.P. No. 284/2013 by its order dated 24.11.2014. Being aggrieved by the concurrent finding of both the Courts below in prosecuting her for the aforesaid offences, this petition is filed seeking quashing of the same.

Heard learned counsel Sri. J. Basavaraj appearing for the petitioners, Sri. Praveen Tarikar, appearing for the contesting respondent and the learned Government Pleader appearing for the State, perused the order passed by both the Courts below and also the private complaint and as well as the Power of Attorney executed by respondent No. 2-Anusuyamma in favour of her son Vijayaprasad who is separated husband of petitioner No. 1 herein. Admittedly, the marriage between petitioner No. 1 and her husband Vijayaprasad is no longer in force in the light of the judicial separation order which is granted by the Sessions, Judge, Bellary on an application filed by petitioner No. 1 herself in M.C. No. 56/2003. Therefore, her contention that she has a right to live in the house of her mother-in-law, as she has a share is not sustainable in the eye of law. More particularly, where she is trying to establish a right to the property in question through her husband, the marriage with that husband itself is not in existence, in the light of judicial separation order, which is filed by her in M.C. No. 56/2003.

Even assuming that the said relationship is in existence, she has no right to seek residence against her mother-in-law who is not duty bound to provide accommodation for her residence in the property belonging to her. Therefore, registering of a complaint against her for the offence punishable under Section 448 of IPC appears to be just and proper and correctness or otherwise of the same is required to be decided in a proceeding which is registered in C.C. No. 483/2013 on the file of the JMFC, Bellary. Further, with reference to other offences alleged against her, which according to the petitioners is not sustainable in law for the reason that the Power of Attorney which is granted by respondent No. 2 to her son is to prosecute only with reference to offence under Section 448 and not other offences.

It is further submitted that the order of learned Magistrate in taking cognizance is erroneous by relying upon the judgment rendered by a Coordinate Bench of this Court in Crl.P. No. 10124/2011 decided on 30.03.2011 is also looked into. On going through the same, it is seen that, in the said proceedings what was sought to be quashed is with reference to cognizance being taken on the basis of the printed format, where the offences are not properly referred to. In that background, a Coordinate Bench of this Court relying upon various other judgments which were cited before it, held that while taking cognizance, the learned Magistrate should apply its mind to the offences alleged and thereafter should take cognizance and it should not be a mechanical order. In this background, the order impugned is taken into consideration. The order which runs to about three pages commencing from preamble that the private complaint filed by the complainant under Section 200 of Cr.P.C. is for the offence punishable under Section 448 and 452, 453, 504, 506, 352 r/w Section 34 of IPC. In the said order at paragraph 2, the entire facts narrated in the complaint is recited in detail and after hearing the arguments, the learned Magistrate formulates two points for consideration in point Nos. 1 and 2 and answered the same in the affirmative. While doing so, he accepts the accusation made in the complaint against petitioner Nos. 1 and 2 with reference to her status in the marriage with the complainant''s son and also her right to seek residence in the said house and also her conduct in enforcing alleged right. Whatever that is done is discussed at length and thereafter in the operative portion cognizance is taken. When the word cognizance is taken is required to be understood with reference to the preamble, the discussion and affirmative answer, which is given with reference to that. Therefore, the submission of the learned counsel that the learned Magistrate has not applied its mind in taking cognizance and the order which is passed is mechanical in nature cannot be accepted and the objections raised against that is not sustainable.

Further, the order of the learned Sessions Judge also specifically indicate that in Crl.R.P. No. 284/2013 by framing point for consideration has rightly reiterated the reasoning rendered by the learned Magistrate and would accept the same as valid and accepting the reason in taking cognizance of various offences which are off shoot of their forcible entry into the house of respondent No. 2, which amounts to an offence under Section 448 as stated in the complaint. The correctness or otherwise of the same is required to be decided in C.C. No. 284/2013. Therefore, taking cognizance of the various offences along with Section 448 appears to be just and proper. In that view of the matter, this Court find no justifiable grounds are made out to interfere with the order of learned Magistrate in taking cognizance and the order of the learned Sessions Judge in confirming the same in its revision capacity dehors the judgment rendered by a Coordinate Bench of this Court in the matter of Sri. K. Ramachandra Reddy v. State of Karnataka and Another in Crl.P. No. 10124/2011, which is discussed supra. With the aforesaid discussion, this petition is dismissed.