BFORE THE HON’BLE HIGH COURT OF KARNATAKA

Criminal.MC.No:120/2023

IN THE MATTER BETWEEN

Mr. SOHAIL & Ors. …... PETITIONER

AND

STATE OF KARNATAKA & Ors. …...RESPONDENT

MEMORIAL ON BEHALF OF REPONDENT

 STATEMENT OF JURISDICTION

THE PERTITIONER THE HON’BLE HIGH COURT OF KARNATAKA UNDER

SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973.
THE RESPONDENT HAS APPEARED OT THE HON’BLE HIGH COURT OF
KARNATAKA IN RESPONSE TO THE PRTITIONS FILED BY THE PETITIONERS.
SECTION 482 OF CRIMINAL PROCEDURE CODE, 1973:

“Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.”

MEMORIAL ON BEHALF OF REPONDENT

 FACTS OF THE CASE

Sohail is highly reputed KAS officer and is been married to Mrs. Sima on 2 nd march 2017 , who’re
residents of Karnataka. After their 3yrs of their wedlock the couple started living separately since 5 th
Nov 2020 due to compatability issues. Therefore it is held as an unhappy marriage of 3yrs of long
separation.
A complaint was filed by Mrs. Sima against Sohail and his family on which FIR was registered on
9th December 2020 for demanding dowry. She was also subjected to cruelty and also unnatural sex
was committed on her by her husband when she refused his dowry demands. Sima has approached
his parents about Sahil behavior towards her, for which they have abused her verbally.

As per the FIR marriage was solemnized in march, 2017. Sima father has spent sum of 50L in their
wedding in which 10L of cash is included. No charge sheet has been filed even though FIR has been
registered. Although the accused and his family had taken anticipatory bail by the sessions court in
Bangalore.

Now they have approached this hon’ble high court for quashing of the said FIR registered against
him and his family.

Whereas Sima and her family is ready to settle the matter through conciliation to continue marital
relationships with Sohail. Whereas Sohail isn’t ready to continue his marital relationship with Sima
as FIR has deeply affected his career and trashed his reputation.
The pendency of administrative actions on him has resulted to lose his promotion to higher
designations and services.
When Mrs. Sima wanted to solvethe issues through conciliation there is no response from Mr.
Sohail.

MEMORIAL ON BEHALF OF REPONDENT

 STATEMENT OF ISSUES

1. WHETHER THE PETITION IS MAINTAINABLE OR NOT?

2. WHETHER THE FIR IS LIABLE TO BE QUASHED?
3. WHETHER THE INGREDIENTS OF SECTION 498A AND OTHER SECTIONS
ARE SATISFIED IN FIR REGISTERED?

MEMORIAL ON BEHALF OF REPONDENT

 ARGUMENTS ADVANCED

ISSUE 1: Whether the petition is maintainable or not?

1. "It is most humbly submitted before the Hon'ble Coast that: firstly, no substantial
question of law arises in the instant case. Secondly, no exceptional circumstances
arise in the instant case where substantial and grave injustice has been done and
lastly, there has been no lapse of the part of the High Court in marshalling of
evidence which justifies reviewing it in large interests of justice. 'The counsels
therefore humbly contend that the writ petition at hand maintainable before the
Hon ble Court.
2. It is humbly submitted before the hon'ble High court of Karnataka that the suit is
not maintainable under Section 482 of the Criminal Procedure Code. The Hon’ble
Supreme court in case of ‘Sushil kumarSingh V. State Of U.P’1 held that “it is well
settled that the inherent powers under Section 482 Cr.P.C. can be exercised only
when no other remedy is available to the litigant and not where a specific remedy
is provided by any statute. If an effective statutory alternative remedy is available,
the Courts should refrain from exercising its extraordinary power under Section
482 CrPC., especially when the accused has not availed of that remedy”.
3. It is also stated by the Apex court in case of ‘Central Bureau Of Investigation V.
Aryan Singh’2, The Supreme court held that “the High Court has materially erred
in going in detail in the allegations and the material collected during the course of
the investigation against the accused, at this stage. As, at the stage of discharge
and/or while exercising the powers under Section 482 CrPC, the Court has a very
limited jurisdiction and is required to consider “whether any sufficient material is
available to proceed further against the accused for which the accused is required
to be tried or not”.

1A. THAT THERE HAS BEEN NO LAPSE ON THE PART OF THE

HON'BLE HIGH COURT IN MARSHALLING OF EVIDENCE WHICH
JUSTIFIES REVIEWING IT IN LARGER INTERESTS OF JUSTICE.
It is most humbly submitted that Sec. 482 of the Cr.P.C. states that,
"Nothing in this code shall be deemed to limit or affect the inherent powers
of the High court to make such orders as may be necessary to give effect to

1 2023 SCC online All 105.

2 2023 SCC online SC 379 .

MEMORIAL ON BEHALF OF REPONDENT

 any order under this code, or to prevent abuse of the process in any Court or
otherwise to secure the ends of justice "
It is we settled that the inherent jurisdiction of the High Court under sec. 482 can be
exercised to quash proceedings in a proper case either to "prevent the abuse of process
of any court or otherwise to secure the "ends of justice”3 but the Hon ble Supreme
Court in the case of ‘Inder Mohan Goswami v. State of Uttaranchal'4 held that.
"Inherent powers under Section 482, Cr.P.C. though wide have to be exercised
sparingly, carefully, and with great caution and only when such exercise is
justified by the tests specifically laid down in the section itself. Authority of
Court assists for advancement of justice. If any abuse of the process leading to
injustice is brought to the notice of the Court. then the Court would be
justified in vreventing injustice by invoking inherent powers in absence of
specific provisions in the statute."
While reiterating this view in the case of ‘State of Telangana v. Habib Abdullah
Jeelani’5 the Apex Court held that the powers under Sec. 482 of Cr.P.C. or under Art.
226 of the Constitution to quash the F.I.R. is to be exercised in a very 'sparing manner'
and it is not to be used to choke or smother the prosecution that is 'legitimate'. It was
further stated in the aforesaid decision that inherent powers do not confer an arbitrary
jurisdiction on the High Courts to act according to 'whim or caprice and that such
power has to be exercised sparingly, with circumspection and in the 'rarest of the rare
cases'. It thus casts an onerous and more diligent duty on the Court. The appellant has
approached the High Court for quashing of F.I.R. under Section 482 of the Cr.P.C.
thus in order to testify that there was no lapse on part of the High Court it is crucial to
test whether all the essentials for quashing of F.I.R. were sufficed.

1B. THAT THE PROSECUTION IS ‘LEGITIMATE’

It was settled in the case of ‘State of A.P. v. Golconda Linga Swamy 6’ that the
inherent power of the Court should not be exercised to stifle a legitimate prosecution
and that exercise of inherent powers to quash the proceedings is called for only in a
case where the complaint does not disclose any offence or is frivolous, vexatious or
oppressive.
It is most humbly submitted that the prosecution against the Petitioner is completely
legitimate as all the ingredients of the offences charged are constituted as further
contended in. When ‘ispo facto’ it is explicit that a prima facie case is formed and the
allegations do form sufficient grounds for issue of process then there stands no legal
ground to hold such prosecution as "illegitimate”.

3 R.P.Kapur V. state of Punjab, AIR 1960 SC 866; Neeharika Infrastructure pvt. Ltd. V. State of Maharastra & Ors.
4 AIR 2008 SC 251 at 256.
5 (2017) 2 SCC 779.
6 (2004) 6 SCC 522

MEMORIAL ON BEHALF OF REPONDENT

ISSUE 2: Whether the FIR is liable to be quashed?

1. It is submitted to the Hon’ble court that the FIR is not liable to be quashed as the
petitioner is guilty for their actions as they have caused severe agony to the
respondent.
The Respondent has gone through a lot of physical abuse, mental abuse and as
well as verbal abuse not only from the petitioner but also from his family. They
never cared about the agony the respondent was going through at that point. So
keeping in mind all of these the FIR shouldn’t be quashed and the petition should
be kept aside.
2. It is submitted to the Hon’ble court that the FIR filed under Section 377 of IPC,
1860 cannot be quashed as stated in the case of ‘Preet Singh & Ors. V. The State
Of Delhi Nct & Anr 7’. where the court held that ‘keeping in the view of the
contents of FIR filed that the investigation is yet to be concluded and charge-sheet
has also not yet been filed, the contention of the learned counsel for the petitioners
that the allegations are baseless and false in nature appears to be premature for the
purpose of quashing the FIR. Further, this Court notes that petitioner no. 1 has not
joined investigation and non- bailable warrants have been issued against him,
therefore it is not a fit case for quashing of FIR”.

ISSUE 3: Whether the ingredients of section 498A and other sections are satisfied
in FIR registered?

1. The counsel for the Respondent most humbly submits that: firstly, the ingredients
of section 498A of IPC, 1860 are satisfied where it states that “Husband or
relative of husband of a woman subjecting her to cruelty. Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three
years and shall also be liable to fine. “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any person related to her to
meet such demand.”.8 Where in this case the Respondent was a victim of cruelty
committed on her. So Section 498A of IPC satisfies the ingredients of FIR filed.

2. Secondly, the ingredients of Section 377 of IPC, 1860 are satisfied where it states
that “Unnatural offences.—Whoever voluntarily has carnal intercourse against

7 W.P. CRL. 1762/2022 & CRL. M.A. 15262/2022

8 Section 498A of Indian Penal Code, 1860.

MEMORIAL ON BEHALF OF REPONDENT

 the Order of nature with any man, woman or animal, shall be punished with
1[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine”9. Where the
unnatural sex which is an unnatural offence that is committed by the petitioner on
respondent which is unnatural offence under section 377 of IPC, 1860 satisfies the
ingredients to file an FIR under this section.
3. Thirdly, the ingredients of section 3 of the dowry prohibition act, 1961 states the
“penalties for giving and taking dowry: If any person, after the commencement of
this Act, gives or takes or abets the giving or taking of dowry, he shall be
punishable 2[with imprisonment for a term which shall not be less than 3[five
years, and with fine which shall not be less than fifteen thousand rupees or the
amount of the value of such dowry, whichever is more]: —1[(1)] If any person,
after the commencement of this Act, gives or takes or abets the giving or taking of
dowry, he shall be punishable 2[with imprisonment for a term which shall not be
less than 3[five years, and with fine which shall not be less than fifteen thousand
rupees or the amount of the value of such dowry, whichever is more]\:" Provided
that the Court may, for adequate and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a term of less than 4[five
years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,— 1[(2)
Nothing in sub-section (1) shall apply to, or in relation to:-"

(a) presents which are given at the time of a marriage to the bride
(without any demand having been made in that behalf): Provided that
such presents are entered in a list maintained in accordance with the
rules made under this Act;
(b) presents which are given at the time of a marriage to the
bridegroom (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in
accordance with the rules made under this Act: Provided further that
where such presents are made by or on behalf of the bride or any
person related to the bride, such presents are of a customary nature
and the value thereof is not excessive having regard to the financial
status of the person by whom, or on whose behalf, such presents are
given.”10
Section 4 of the dowry prohibition act, 1961 which states
“Penalty for demanding dowry.—If any person demands, directly or
indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with
imprisonment for a term which shall not be less than six months, but which
may extend to two years and with fine which may extend to ten thousand
rupees: 2[4. Penalty for demanding dowry.—If any person demands, directly

9 Section 377 of IPC, 1860.

10 Section 3 of The Dowry Prohibition Act, 1961

MEMORIAL ON BEHALF OF REPONDENT

 or indirectly, from the parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be punishable with
imprisonment for a term which shall not be less than six months, but which
may extend to two years and with fine which may extend to ten thousand
rupees". Provided that the court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a term of
less than six months.”11 The above sections also justify the ingredients of FIR
where this is the cause or an issue that lead petitioner to commit crimes under
section 498A & 377 of IPC, 1860.

11 Section 4 of dowry prohibition act, 1961.

MEMORIAL ON BEHALF OF REPONDENT

 PRAYER

WHEREFORE, it is prayed in the light of the issues raised, arguments advanced and authorities
cited, that this Hon’ble Court may be pleased to:

1. Dismiss the above criminal petition.

2. Punish the petitioner and his family for the agony caused to the respondent.

The Court being satisfied may also make any such order as it may deem fit in the light of
Justice, Fairness, Equality and Good Conscience

All of which is most humbly prayed.

MEMORIAL ON BEHALF OF REPONDENT