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1 in the High Court of Karnataka at Bengaluru

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1 in the High Court of Karnataka at Bengaluru 1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF APRIL, 2015 BEFORE THE HON’BLE MR. JUSTICE A.N.VENUGOPALA GOWDA CRIMINAL PETITION NO.7613/2014 BETWEEN: BHARATHRAJ GUMPPE S/O BABU BELCHAPPADA, AGED 24 YEARS, # 3-130A, MADUPALLA, EARA, BANTWAL - 574 323 DAKSHINA KANNADA. ... PETITIONER (BY SRI ARUNA SHYAM M., ADV.) AND: 1. THE STATE OF KARNATAKA BY ULLALA POLICE SOUTH SUB-DIVISION, MANGALORE CITY, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA, BANGALORE- 560 001. 2 2. KHALEEL AHMED SHEIK S/O LATE SHEIK ABDUL LATHIF, MAJOR, ‘INSHA MANZIL’ NEAR STELLA MARY’S SCHOOL, KOTEKAR, MANGALORE CITY -575 004, DAKSHINA KANNADA DISTRICT. ... RESPONDENTS (BY SRI VIJAY KUMAR MAJAGE, HCGP FOR R1; SRI B. LETHIF, ADV. FOR R2) THIS CRL.P. IS FILED UNDER S.482 CR.P.C., PRAYING TO QUASH THE COMPLAINT FILED BY THE 2ND RESPONDENT, THE FIR IN CRIME NO.342/2014, FOR THE OFFENCES PUNISHABLE UNDER S.366 R/W S.34 OF THE IPC, PENDING ON THE FILE OF III-JMFC, M.G.ROAD, CORPORATION BUILDING, MANGALORE. THIS CRL.P. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioner, working as a Conductor, fell in love with Miss. Insha Khaleel, aged about 19 years and a student of I B.B.M. Course in St. Agnes College, Mangaluru i.e., the daughter of the 2 nd respondent and on 19.11.2014 married her in the Meeting Hall of Sri Seetharamanjaneya Bharathi Mandir, Yenmur Village, Sullia, Dakshina Kannada. The couple, thereafter, got published the matter relating to solemnization of their 3 marriage, in “Jaya Kirana”, a local newspaper. The petitioner’s wife informed the 2 nd respondent and also the jurisdictional police, the solemnization of her marriage. 2. The 2 nd respondent having lodged a complaint, the first respondent – Ullala Police, registered a case in Crime No.342/2014, for the offence punishable under S.366 r/w S.34 of IPC, against the petitioner and three others and submitted FIR to the III JMFC, Mangaluru, D.K. This petition was filed, under S.482 Cr.P.C., to quash entire proceedings relating to the said case. 3. The 2 nd respondent had filed WPHC No.228/2014, as against the State and also the petitioner, to issue a writ of Habeas-Corpus, to produce Insha Khaleel and set her at liberty. The petitioner and his wife Smt. Inchara @ Insha, having suo-motu appeared, on 28.11.2014, the said petition was dismissed. 4. Sri Aruna Shyam, learned advocate, contended that the petitioner having not committed any offence and 4 the ingredients of the alleged offence having not been stated in the complaint filed by the respondent No.2, the investigation of the case being an empty formality or futile exercise, resulting in waste of public time and money, the impugned proceeding be quashed. According to the learned advocate, the allegations made in the complaint do not constitute a cognizable offence justifying the registration of a case and an investigation thereon. He submitted that the petitioner married Insha Khaleel @ Inchara, with her consent, in the presence of friends, well wishers and family members and is leading married life. He submitted that there being no material of whatsoever nature, in support of the allegations made in the complaint, the first respondent is wholly unjustified in registering the case and submitting FIR to the Magistrate. He further submitted that the petitioner is apprehending threat to his life and liberty, since, his wife, earlier belonged to a different religion and as the 2 nd respondent and his supporters are influential and politically powerful, 5 are likely to cause harm or harassment to the married couple. 5. Sri Vijay Kumar Majage, learned HCGP, submitted that the first respondent would investigate the case and submit final report to the jurisdictional Magistrate. He submitted that the petition being premature is liable to be dismissed. 6. Mr. B.Lethif, learned advocate, submitted that in view of non-return of Miss Insha Khaleel, on 17.11.2014, from the College, the 2 nd respondent having learnt that the petitioner and his friends kidnapped and are forcing her to marry, lodged the complaint on 19.11.2014 and a case in Crime No.342/2014 was registered by the first respondent. He submitted that the case requires investigation by the police, to find out, whether there is kidnapping or abduction or inducement of Insha Khaleel, to compel her marriage etc. 7. Perused the petition and considered the rival contentions. The point for consideration is, whether, the 6 woman – Insha Khaleel, was abducted to, with the intension to compel her to marry against her wish or for the purposes appearing in S. 366 IPC? 8. In the earlier paragraphs, I have already adverted to certain factual details about the solemnization of the marriage of the petitioner and Insha Khaleel, whose date of birth, as per the SSLC Marks Card, is 03.10.1995. As on 17.11.2014, Insha Khaleel was a major. The marriage solemnized on 19.11.2014 was published in “Jaya Kirana”, Kannada Newspaper. Insha Khaleel @ Inchara has notified both respondents about the solemnization of her marriage with the petitioner. 9. On a complaint made by the 2 nd respondent, a case in Crime No.342/2014 was registered by the first respondent. On 27.11.2014, WPHC No.228/2014 was filed by the 2 nd respondent, to issue writ of Habeas Corpus and direct the respondents, to set at liberty Insha Khaleel. The said petition was dismissed on 28.11.2014 as misconceived. 7 10. The petitioner and the 2 nd respondent are from different religions. Apprehending that the 2 nd respondent may cause harassment and/or initiate proceedings, Insha- Khaleel @ Inchara has notified the solemnization of her marriage and requested both respondents, not to disturb or harm the petitioner and allow herself to live happily. 11. On perusal of the record and the submissions made by the learned advocates, it is clear that Insha Khaleel, the daughter of the 2 nd respondent, is a major and was at all relevant times a major. Hence, she was free to marry anyone she likes or live with anyone she likes. There is no bar in law for a inter-caste or inter-community or inter-religious marriage. Hence, no offence was committed by the petitioner and his friends, who have been named in the impugned FIR. 12. To constitute an offence under S. 366 IPC, it is necessary to show that the accused induced the woman or compelled by force to go from any place and that such 8 inducement was by deceitful means; that such abduction has taken place with the intent to forcefully marry or that she may be induced for illicit intercourse and/or that the accused knew it to be likely that she may be seduced to illicit intercourse as a result of her abduction. Mere abduction of a woman does not bring an accused under the ambit of S.366 IPC. To proceed against an accused, under S.366 IPC, it must be alleged that the accused abducted the woman with the intent that she may be complelled or knowing it to be likely that she will be compelled to marry any person / or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the complaint contains the allegation that the abduction was for the purposes mentioned in S.366 IPC, a case for the offence under S.366 IPC cannot be registered. 13. The instant case is a classic example of mechanical registration of case by the 1 st respondent for 9 the offence under S.366 IPC. The impugned action of the first respondent is an abuse of process of law, at the instance of the 2 nd respondent, who appears to have got annoyed, on account of marriage of his daughter, outside his religion. 14. In LATA SINGH Vs. STATE OF U.P. AND ANOTHER, (2006) 5 SCC 475 , the petitioner therein, married a man belonging to another caste and began to live with him. Her brother filed a criminal complaint accusing her husband of commission of the offences under Ss. 366 and 368 IPC, thereby, leading to the commencement of trial proceedings. A writ petition having been filed in the Apex Court, while observing, that a live-in-relationship between two consenting adults of hetrogenic sex, does not amount to any offence, even though it may be perceived as immoral, it was held, that a major girl is free to “marry anyone she likes” or “live with anyone she likes.” In the factual background of the case, it was held, that no offence was committed by any of the accused and the whole 10 criminal case in question is an abuse of process of the Court. The observations made and the directions issued therein, being relevant to the instance case, is extracted herein below: “14. This case reveals a shocking state of affairs. There is no dispute that the petitioner is a major and was at all relevant times a major. Hence she is free to marry anyone she likes or live with anyone she likes. There is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. Hence, we cannot see what offence was committed by the petitioner, her husband or her husband's relatives.
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