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2020 Supreme(AP) 56
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
CHEEKATI MANAVENDRANATH ROY, J.
B. Parvathi – Petitioner
Versus
The State of Andhra Pradesh – Respondent
Criminal Revision Case No.1116 of 2019
Decided On : 07-05-2020
Advocate Appeared:
For the Petitioner: Virupaksha Dattatreya Gouda, Adv.
For the Respondent: Dr. Challa Srinivasa Reddy, Adv.
Point of Law: words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution
Headnote:
Indian Penal Code, 1860 – Sections 498-A and 302 - Dowry Prohibition Act - Section 494 – Demand of Dowry – Murder of wife – Sub-Divisional Police Officer, Kurnool laid charge-sheet against accused Nos.1 and 2 in Crime No.64 of 2015 of Kurnool III town Police Station after completion of investigation for the offences punishable under Sections 498-A and 302 of IPC and under Section 4 of the Dowry Prohibition Act and under Section 494 of the IPC against accused No.1 and for the offence punishable under Section 494 of IPC against accused No.2 – Held, as per the definition of complaint under Section 2(d) Cr.P.C., any oral or written allegation that some person whether known or unknown has committed an offence made to a Magistrate to take action under the Code is a complaint and police report filed under Section 173(2) Cr.P.C. is specifically excluded from its purview. Section 2(r) Cr.P.C. defines "police report" which means a report forwarded by a police officer to Magistrate under sub-section (2) of Section 173, which is generally termed as charge-sheet. So, only when an allegation relating to the offence under Section 494 IPC is made by the aggrieved person to the Magistrate, then only the Court can take cognizance of the case. Certainly the Court cannot take cognizance of the case for the offence punishable under Section 494 IPC on a police report/charge-sheet filed by the police. Eventhough offence under Section 494 IPC is made “cognizable” offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists. The legal position in this regard is not res nova and it has been clearly well settled - entire order is silent in this regard. In fact, the learned Sessions Judge totally misdirected himself in considering the petition under Section 227 Cr.P.C. and in appreciating the contentions raised in the said petition. The learned Sessions Judge did not make any attempt to prima facie ascertain by considering the evidence on record whether it is sufficient to try accused No.2 for the said offence and whether there is sufficient ground to proceed further against her in this regard or not. The bar contained under Section 198 Cr.P.C. is also not dealt with in the impugned order. Therefore, the impugned order is clearly unsustainable under law and it warrants interference in this Criminal Revision Case and the same is liable to be set aside - Criminal Revision Case is allowed
Facts of the Case:
deceased by name Vishali is the legally wedded wife of accused No.1. Their marriage was solemnized in Srisailam. Accused No.1 was working as Sub-Inspector of Police, Srisailam Police Station at that time. Father of the deceased Vishali gave good amount of dowry to accused No.1 at the time of the marriage. The deceased Vishali underwent a bypass surgery prior to the marriage. Knowing fully well that she has undergone a bypass surgery, accused No.1 married her. They both lead happy marital life after the marriage. However, Vishali could not conceive due to her heart ailment.
Finding of the Court:
as per the definition of complaint under Section 2(d) Cr.P.C., any oral or written allegation that some person whether known or unknown has committed an offence made to a Magistrate to take action under the Code is a complaint and police report filed under Section 173(2) Cr.P.C. is specifically excluded from its purview. Section 2(r) Cr.P.C. defines "police report" which means a report forwarded by a police officer to Magistrate under sub-section (2) of Section 173, which is generally termed as charge-sheet. So, only when an allegation relating to the offence under Section 494 IPC is made by the aggrieved person to the Magistrate, then only the Court can take cognizance of the case. Certainly the Court cannot take cognizance of the case for the offence punishable under Section 494 IPC on a police report/charge-sheet filed by the police. Eventhough offence under Section 494 IPC is made “cognizable” offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists. The legal position in this regard is not res nova and it has been clearly well settled- The entire order is silent in this regard. In fact, the learned Sessions Judge totally misdirected himself in considering the petition under Section 227 Cr.P.C. and in appreciating the contentions raised in the said petition. The learned Sessions Judge did not make any attempt to prima facie ascertain by considering the evidence on record whether it is sufficient to try accused No.2 for the said offence and whether there is sufficient ground to proceed further against her in this regard or not. The bar contained under Section 198 Cr.P.C. is also not dealt with in the impugned order. Therefore, the impugned order is clearly unsustainable under law and it warrants interference in this Criminal Revision Case and the same is liable to be set aside.
Result: Criminal Revision Case is allowed
ORDER :
1. Assailing the order dated 24.08.2019 passed in Crl.M.P.No.89 of 2019 in Sessions Case No.63 of 2018 on the file of the Sessions Judge, Kurnool, whereby the petition filed under Section 227 Cr.P.C. by the petitioner, who is accused No.2, to discharge her from the case was dismissed, the present Criminal Revision Case is preferred by the revision petitioner.
2. Facts germane to dispose of this Criminal Revision Case may briefly be stated as follows:
3. The Sub-Divisional Police Officer, Kurnool laid charge-sheet against accused Nos.1 and 2 in Crime No.64 of 2015 of Kurnool III town Police Station after completion of investigation for the offences punishable under Sections 498-A and 302 of IPC and under Section 4 of the Dowry Prohibition Act and under Section 494 of the IPC against accused No.1 and for the offence punishable under Section 494 of IPC against accused No.2.
4. As per the charge-sheet, it is the case of the prosecution that the deceased by name Vishali is the legally wedded wife of accused No.1. Their marriage was solemnized in Srisailam. Accused No.1 was working as Sub-Inspector of Police, Srisailam Police Station at that time. Father of the deceased Vishali gave good amount of dowry to accused No.1 at the time of the marriage. The deceased Vishali underwent a bypass surgery prior to the marriage. Knowing fully well that she has undergone a bypass surgery, accused No.1 married her. They both lead happy marital life after the marriage. However, Vishali could not conceive due to her heart ailment.
5. Whileso, accused was transferred to Sanjamala Police Station. While he was working at Sanjamala Police Station, he developed intimacy with accused No.2. Thereafter, accused No.1 started harassing the deceased. Therefore, she lodged a report with the police against accused Nos.1 and 2 and against mother of accused No.1 stating that accused No.1 has been harassing her to accept his second marriage with accused No.2 and that he is also trying to kill her by administering poison to her and as such she got life threat at the instance of accused No.2 and the mother of accused No.1 in the hands of accused No.1. The said report was registered as a case in Crime No.54 of 2011 for the offences punishable under Sections 498-A, 341, 306, 506 read with Section 34 of IPC of Sanjamala Police Station. However, at the intervention of the elders and the mediators, both the parties entered into a compromise before the Lok Adalat on 06.02.2012 and the accused therein were acquitted under Section 320(8) Cr.P.C.
6. Thereafter, on the advice of the elders, accused and his wife Vishali started residing in Ganesh Nagar of Kurnool Town. Accused No.1 did not desist from harassing her for additional dowry. He continued to harass her. She used to inform the same to her parents over phone. When her father requested accused No.1 not to harass her, he did not heed to his request.
7. Whileso, on 10.03.2015 at about 11.45 A.M. after Vishali visited the house of her neighbor LW.6 Pothi Satyanarayanamma to know as to how to prepare Korra Rice and went back to her house, at about 12.00 Noon her neighbours LWs.6, 7 and 10 viz, Pothi Satyanarayanamma, K.Nikhil Reddy and Karnati Sagar Reddy, heard cries from her house. When they came out from their houses, they have seen accused No.1 coming out from the house. He informed them that his wife has fallen while cleaning the utensils. Therefore, the neighbours i.e., Lws.6, 7 and10 went to the house of accused No.1 and they have seen Vishali lying on her back with injuries in an unconscious state in her house. Immediately, accused No.1 along with the said witnesses shifted her to the hospital and she was declared dead. On receipt of information from accused No.1, her parents immediately reached the hospital.
8. Three years prior to the death of Vishali on 10.03.2015, accused No.1 married accused No.2 and lead conjugal life with her. Accused No.2 was also blessed with two children. Accused No.2 lived at Kesavapuram
