VERDICTUM.

IN
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APHC010100702023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)

FRIDAY
FRIDAY, THE THIRD DAY OF MAY
TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO

CRIMINAL REVISION CASE NO: 165/2023

Between:

M.sreenivasulu and Others ...PETITIONER(S)

AND

The State Of Andhra Pradesh and Others ...RESPONDENT(S)

Counsel for the Petitioner(S):

1. CHALLA GUNARANJAN

Counsel for the Respondent(S):

1.

The Court made the following ORDER:

1. This Criminal Revision, under Sections 397 and 401 of Code of Criminal

Procedure, 1973 (for short, 'Cr.P.C.'), has been filed by the Revision

Petitioners/A.1 to A.3, seeking to set aside the discharge petition order, dated

18.11.2022 in Crl.M.P.No.146 of 2020 iin

n C.C.No.450 of 2016 on the file of I

Additional Chief Metropolitan Magistrate, Visakhapatnam, (for short, "the trial

Court").

2. The parties will hereinafter be referred to as arrayed in this Criminal

Revision Case.
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3. In the proceedings before the trial court, the Revision Petitioners/A.1 to

A.3 herein, submitted a petition in Crl.M.P.No.146 of 2020 within C.C.No.450

of 2016, invoking section 239 of the Cr.P.C., with the aim of securing their

discharge from the case registered under C.C.No.450 of 2016.

4. The crux of the case at hand revolves around the allegations of

procedural irregularities attributed to the investigating officer. It is contended

that, devoid of conducting comprehensive counselling or inquiry, the

investigating officer swiftly proceeded to register FIR No.98 of 2015, solely

relying on the report furnished by the 2nd Respondent. Subsequently, upon the

filing of an anticipatory application by the Petitioners, bail was granted by the

VII Additional District Court-cum-Mahila Court. A condition of this anticipatory

bail was the issuance of a notice under section 41A of the Cr.P.C., by the

Sessions Judge, instructing police officials to serve the notice without

executing an arrest. It is submitted that, in blatant disregard of these

directives, the investigating officer proceeded to arrest the Petitioners without

adhering to the Sessions Judge's orders. It is alleged that the case registered

under C.C.No.450 of 2016 seemingly stems from the improper issuance of the

FIR, grounded in what is alleged to be a false report, evidently aimed at

harassing the Petitioners and besmirching their reputation within society.

5. The learned counsel representing the Petitioners asserts that the

learned Magistrate erred in disregarding the decree passed in

F.C.O.P.No.1275 of 2015 by the Family Court, Ranga Reddy District, which

declared the marriage between the 1st Petitioner/A.1 and the 2nd Respondent/
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Defacto Complainant null and void. This decree, although obtained under

Order XII Rule VI based on the express admission of 2 nd Respondent and not

through contestation, unequivocally renders the marriage legally nonexistent,

thus negating the foundation for any charges against the accused. The

learned Magistrate's failure to grasp the essence and purpose of Section 239

of the Cr.P.C., is highlighted, underscoring that in the absence of a valid

marriage, the proposed charges under Section 498A of the IPC and Sections

3 and 4 of the D.P. Act lack legal merit. Furthermore, it is contended that the

complaint, charge sheet, or statements of witnesses fail to substantiate any

case against the Petitioners. The investigating officer's role is portrayed as

merely translating the vernacular complaint into formal court language,

creating an illusion of investigative depth. Upon scrutiny, both the vague

nature of the complaint and the charge sheet, which appears to be a mere

replication of the complaint, fail to establish any prima facie offence against

the Petitioners, even when assuming all allegations to be true and accurate.

6. I have heard Sri Shaik Md. Umar Abdulla, learned counsel for the

Petitioners and learned Assistant Public Prosecutor representing the 1 st

Respondent.

7. In the case of State of T.N. V. N. Suresh Rajan1, the Hon’ble Apex

Court had an occasion to consider in detail the scope of the proceedings at

the stage of framing of the charge Under Section227/228 Code of Criminal

1
MANU/SC/0011/2014
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Procedure. After considering earlier decisions of this Court on the point

thereafter in paragraph 29 to 31, this Court has observed and held as under:

2 9 . We have bestowed our consideration to the rival submissions and the

submissions made by Mr. Ranjit Kumar commend us. True it is that at the
time of consideration of the applications for discharge, the court cannot act
as a mouthpiece of the prosecution or act as a post office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. It is trite that at the stage
of consideration of an application for discharge, the court has to proceed
with an assumption that the materials brought on record by the
prosecution are true and evaluate the said materials and documents with a
view to find out whether the facts emerging there from taken at their face
value disclose the existence of all the ingredients constituting the alleged
offence. At this stage, probative value of the materials has to be gone into
and the court is not expected to go deep into the matter and hold that the
materials would not warrant a conviction. In our opinion, what needs to be
considered is whether there is a ground for presuming that the offence has
been committed and not whether a ground for convicting the Accused has
been made out. To put it differently, if the court thinks that the Accused
might have committed the offence on the basis of the materials on record
on its probative value, it can frame the charge; though for conviction, the
court has to come to the conclusion that the Accused has committed the
offence. The law does not permit a mini trial at this stage.

8. Reference in this connection can also be made to a decision of the

Hon’ble Apex Court in Sheoraj Singh Ahlawat V. State of U.P.2, in which,

after analysing various decisions on the point, the Hon’ble Apex Court

2
(2013) 11 SCC 476
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endorsed the following view taken in Onkar Nath Mishra V. State (NCT of

Delhi)3:

15. '11. It is trite that at the stage of framing of charge the court is required
to evaluate the material and documents on record with a view to finding
out if the facts emerging therefrom, taken at their face value, disclosed the
existence of all the ingredients constituting the alleged offence. At that
stage, the court is not expected to go deep into the probative value of the
material on record. What needs to be considered is whether there is a
ground for presuming that the offence has been committed and not a
ground for convicting the Accused has been made out. At that stage, even
strong suspicion founded on material which leads the court to form a
presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of charge against
the Accused in respect of the commission of that offence.'

9. In State of Tamil Nadu V. N Suresh Rajan, (cited supra), the Hon’ble

Apex Court was observed notwithstanding the difference in language of

Sections 227 and 239, CrPC, the approach of the Court concerned is to be

common under both provisions. The principles holding the field under Sections

227 and 228, CrPC are well-settled, courtesy, inter alia, State of Bihar V

Ramesh Singh4; Union of India v Prafulla K Samal5................, it was laid down

as under:

‘10. Thus, on a consideration of the authorities mentioned above, the

following principles emerge:

(1) That the Judge while considering the question of framing the charges
under Section 227 of the Code has the undoubted power to sift and weigh

3
(2008) 2 SCC 561
4
(1977) 4 SCC 39
5
(1979) 3 SCC 4
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the evidence for the limited purpose of finding out whether or not a prima
facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained the Court will
be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon
the facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and
the Judge is satisfied that the evidence produced before him while giving
rise to some suspicion but not grave suspicion against the accused, he will
be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the
Judge which under the present Code is a senior and experienced court
cannot act merely as a Post Office or a mouthpiece of the prosecution, but
has to consider the broad probabilities of the case, the total effect of the
evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a trial.’

10. The foremost consideration during the framing of charges is to ascertain

the presence of a prima facie case. It's worth noting that, at this juncture,

there's no requirement to delve into the probative value of the materials on

record.

11. As evident from the record, the Revision Petitioners have submitted a

copy of the charge sheet in C.C.No.450 of 2016, concerning Crime No.98 of

2015 of Women Police Station, Visakhapatnam. The accusations against the

Petitioners/A.1 to A.3 assert that A.1, allegedly acting at the instigation of A.2

and A.3, subjected the Defacto Complainant (2nd Respondent herein), A.1’s

wife, to cruelty, encompassing both mental and physical harassment; they

demanded an additional dowry amount from her parents.

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12. The grounds asserted by the Revision Petitioners/A.1 to A.3 are that

they placed reliance on the certified copy of the decree and order in

F.C.O.P.No.1275 of 2015 on the file of the Judge, Family Court, Ranga Reddy

District. This evidentiary material reveals that the 1st Petitioner, referred to as

the husband, instituted legal proceedings against his wife i.e., 2nd Respondent

herein, under F.C.O.P.No.1275 of 2015, seeking a decree of divorce by

dissolving their marriage as null and void. Perusal of the order dated

12.04.2017 evinces the conspicuous absence of the 1st Petitioner, with no

representation being advanced. Conversely, the Respondent, the wife, was

present and affirmatively acknowledged the submission of a counter. Notably,

she raised no objection to the relief sought by the Petitioner for the annulment

of the marriage, while seeking leave to contest the remaining allegations.

13. The learned Judge of the Family Court, after careful consideration of the

admissions made by the 2nd Respondent herein, has observed that the relief

requested by the 1st Petitioner to nullify the marriage between himself and his

wife is permissible. Consequently, the Judge, Family Court allowed the

petition and declared the marriage that was officiated between the parties on

15.03.2015 is null and void.

14. The impugned Order indicates that despite the Petitioners furnishing a

copy of the decree and order in F.C.O.P.No.1275 of 2015, the trial Court

proceeded to dismiss the discharge petition filed by the Revision

Petitioners/A.1 to A.3 without due consideration of the aforementioned order

and decree.
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15. The learned counsel for the Petitioners asserts that the marriage

between the parties has been adjudicated as null and void by the judgment of

the Family Court. Accordingly, in light of the aforementioned judgment, it is

contended that the Petitioners/A.1 to A.3 are entitled to be discharged. In

support of their contention, the Petitioners have placed reliance on the

judgment of the Hon’ble Apex Court in Shivcharan Lal Verma and another

V. State of M.P.,6. It is a case where, the appeal is filed by the two appellants

/accused, who have been convicted under sections 306 and 498A of IPC by

the learned Sessions Judge, wherein the Hon’ble Apex Court considered

whether the prosecution under section 498A of IPC can at all be attracted

since the marriage was null and void. By taking into consideration of the

submissions made, the Hon’ble Apex Court held that there may be

considerable force in the argument of the learned counsel for the appellants

so far as conviction under section 498A of IPC is concerned, in as much as

the alleged marriage with Mohini during the subsistence of a valid marriage

with Kalindi is null and void and therefore, the Hon’ble Apex Court set aside

the conviction and sentence under section 498A of IPC.

16. Learned counsel for the Petitioners contends that even upon conducting

the trial, the ultimate conclusion of the proceedings is anticipated to result in

the acquittal of the accused individuals. Consequently, it is asserted that the

trial Court, given this foreseeable outcome, should have exercised its

discretion to discharge the accused persons from further legal proceedings. In

6
(2007) 15 SCC 369
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support of their contention, the Petitioners have also placed reliance on the

judgment of the Hon’ble Apex Court in P. Siva Kumar & ors. V. State Rep.,

by the Deputy Superintendent of Police and ors7, wherein it held that:

7. Undisputedly, the marriage between the appellant No.1 and PW-1

has been found to be null and void. As such the conviction
under Section 498-A IPC would not be sustainable in view of the
judgment of this Court in the case Shivcharan Lal Verma's case supra.
So far as the conviction under Sections 3 and 4 of the Dowry Prohibition
Act is concerned, the learned trial Judge by an elaborate reasoning,
arrived at after appreciation of evidence, has found that the prosecution
has failed to prove the case beyond reasonable doubt. In an
appeal/revision, the High court could have set aside the order of
acquittal only if the findings as recorded by the trial Court were perverse
or impossible.

In light of the observations outlined in the aforementioned decision, this

Court perceives that there is no utility in prolonging the proceedings against

the accused individuals, especially in light of the Family Court's order nullifying

the marriage between the 1 st Petitioner and the 2nd Respondent.

17. The learned counsel representing the Petitioners ardently asserts that in

instances where a marriage is deemed null and void, the pursuit of legal

proceedings under sections 3 and 4 of the Dowry Prohibition Act becomes

untenable. Central to this argument is the delineation of "dowry" as envisaged

within the Act, positing it as a demand for property or valuable security

intricately intertwined with the institution of marriage. Emphasizing the

exhaustive scope of dowry as defined in section 2 of the Dowry Prohibition

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2023 LiveLaw (SC) 116
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Act, counsel underscores its inclusive nature, encompassing a wide array of

assets and properties exchanged directly or indirectly in connection with

matrimonial alliances. Furthermore, counsel contends that once a marriage is

declared null and void, any purported demand for dowry in relation to said

marriage loses legal validity. Notably, in the case of P. Siva Kumar’s case as

referred to supra, the Hon’ble Apex Court independently scrutinized the trial

court's decision, despite the nullification of the marriage, to assess the

applicability of charges under sections 3 and 4 of the Dowry Prohibition Act.

18. Learned counsel for the Petitioners has apprised the Court of an

admission made by the 2nd Respondent herein (wife/Defacto Complainant)

during the Family Court proceedings. The order passed in F.C.O.P.No.1275 of

2015 reveals that the wife/Defacto Complainant did not raise any objection to

the declaration of the marriage as null and void, but sought leave to contest

other allegations pertaining to the recovery of amounts and ornaments

through separate proceedings. Additionally, it appears that both parties have

reached an amicable compromise, rendering the continuation of the

proceedings unnecessary. In light of these circumstances, this Court is

inclined to believe that the Petitioners have established a case warranting the

allowing of the Revision Case.

19. The nature of the evidence recorded or collected by the investigating

agency, or the documents produced, which prima facie reveal suspicious

circumstances against the accused, suffice for the purposes of framing a

charge. Such material is taken into account in the process of framing the
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charge. If there are insufficient grounds for proceeding against the accused,

they would be discharged. However, if the court, after due consideration of the

material, finds grounds for presuming that the accused has committed the

triable offence, then a charge must necessarily be framed.

20. The learned counsel for the Petitioners asserts that vague and general

allegations have been levied against the Petitioners. While certain documents

have been referenced to demonstrate the amount of transfer, no specific

documents have been presented to substantiate the actual transfer of

amounts. Consequently, the contention raised by the Defacto Complainant,

suggesting that the amounts were transferred as dowry, cannot be accepted.

21. As rightly pointed out by the Petitioners’ counsel, the expenses

purportedly incurred by the family members of the 2nd Respondent/wife for the

marriage have been categorized as dowry. The version presented by the 2 nd

Respondent lacks specificity and consistency concerning the alleged dowry

payments and their particulars. Vague assertions have been made in both the

police complaint and the Domestic Violence Case, without providing any clear

explanation. Furthermore, the 2nd Respondent has failed to explain why she

did not produce documentary evidence to support the alleged payments.

Additionally, it is noteworthy that the 2nd Respondent, in F.C.O.P.No.1275 of

2015, relinquished her claim in the divorce petition, with the intention to

pursue the recovery of the amount through separate proceedings.

22. On a careful conspectus of the legal spectrum, juxtaposed in my view

on the facts and merits expressed hereinbefore, I am satisfied that there is no

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suspicion, much less strong or grave suspicion that the Petitioners are guilty

of the offence alleged under section 3 and 4 of D.P.Act. It would be unjustified

to make the Petitioners face a full-fledged criminal trial in this backdrop.

23. Accordingly, the Revision Petition is allowed. The Revision Petitioners,

on bail, stand discharged of the liabilities of their bail bonds. The Impugned

order of the learned Magistrate dismissing the prayer for discharge is set

aside. Consequently, there not being sufficient material on record to proceed

against them, the Petitioner shall stand discharged in the criminal case.

Miscellaneous applications pending, if any, shall stand closed.

________________________
T. MALLIKARJUNA RAO, J
Date: 03.05.2024
SAK
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THE HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO

CRIMINAL REVISION CASE No. 165 of 2023

Date: 03.05.2024

SAK