Andhra Pradesh High Court - Amravati

Kollipara Krishna Kumar vs State Of Ap on 7 February, 2024

     THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

             CRIMINAL PETITION No.3992 OF 2019
ORDER:

The police laid a charge sheet for the offences punishable

under Section 498(A) of IPC and Sections 3 & 4 of the Dowry

Prohibition Act, against the accused No.1 by deleting the names of

petitioners herein, who are mother and sister of accused No.1.

2. The de facto complainant has filed a petition under Section

319 Cr.P.C. during the course of the trial to add the petitioners

herein as accused No.2 and 3 and the said petition was allowed by

the learned Magistrate of First Class, Gudiwada.

3. As seen from the Chief Examination of the de facto

complainant/P.W.1, the allegation that is made against the

petitioners herein is that the petitioner herein have uttered towards

the de facto-complainant is "black charm" and if accused No.1 is

married with another women, they would receive more dowry. This

is the statement made against the petitioners herein for adding as

accused during trial under 319 Cr.P.C. Basing upon the said

allegations, the learned Magistrate has allowed the Petition and

added as accused Nos.2 and 3.

4. To attract the Sections 3 & 4 of the Dowry Prohibition Act,

there should be a demand for dowry by the petitioners herein from

the de facto complainant. But in the present case, there is no such

demand of dowry made by the petitioners herein. Therefore,

Sections 3 & 4 of the Dowry Prohibition does not attract.

5. Under Section 498(A) of IPC, 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. There should be cruelty.

Whereas, in the present case, the statement made by the de facto

complainant in the Chief Examination does amounts to cruelty or

harassment or torture meted by her in this regard is the question

before this Court. The statement made by the de facto-complainant

in her chief-examination is that accused Nos.2 and 3 have stated

that de facto-complainant is „Black Charm‟ and if accused No.1

given marriage with another woman, he would have gained more

dowry.

6. Section 498A defines of cruelty by husband or relative of

husband: A woman subject to cruelty shall be punished with

imprisonment and shall also be liable to fine.

(a) Cruelty means: a wilful conduct which is such a nature to

commit suicide or grave injury to life, limb or health (whether

mental or physical).

(b) Harassment to woman with a view to coercing her to meet any

unlawful demand for any property or valuable security by her or any

person related to her

In the present case, there is no harassment made by the

petitioners/accused Nos.2 & 3 for any unlawful demand. If married

to another woman would have gained more amount is not an

unlawful demand.

The next question that arises is any cruelty, which drives the

woman to commit suicide or grave injury to health, life or limb.

In the present case, a statement was made that the de facto-

complainant is Dark-Complexion. Which state even not a derogatory

statement to have effect on health, life or limb. Even assuming that

it is derogatory statement it does not amount to cruelty towards a

woman as held by the Apex Court in Ramesh v. Tamilnadu

reported in 2005(3) SCC 507.

12. A Perusal of Section 319 of the Cr.P.C. would clearly

indicate that on the objective satisfaction of the Court a

person may be „arrested‟ or „summoned‟ as the circumstances

of the case may require, if it appears from the evidence that

any such person not being the accused has committed an

offence for which such person could be tried together with the

already arraigned accused persons. The Constitution Bench

in Hardeep Singh v. State of Punjab and others[1] answered in

the following manner:

95. At the time of taking cognizance, the Court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 Cr.P.C., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-

Judge Bench of this Court in Vikas v. State of Rajasthan[2], held that on the objective satisfaction of the court a person may be "arrested" or "summoned", as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be

(2014) 3 SCC 92

(2014) 3 SCC 321

exercised, because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

13. The Hon‟ble Apex Court after recapitulating held in Brijendra Singh & Ors vs State Of Rajasthan[3] as follows:

2017 (7) SCC 706

The „evidence‟ herein means the material that is brought before the Court during trial. Insofar as the material/evidence collected by the IO at the stage of inquiry is concerned, it can be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319 Cr.P.C. No doubt, such evidence that has surfaced in examination-in- chief, without cross- examination of witnesses, can also be taken into consideration. However, since it is a discretionary power given to the Court under Section 319 Cr.P.C. and is also an extraordinary one, same has to be exercised sparingly and only in those cases where the circumstances of the case so warrants. The degree of satisfaction is more than the degree which is warranted at the time of framing of the charges against others in respect of whom charge sheet was filed. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity.

14. Learned counsel for the petitioners would rely on the

judgment of Hon‟ble Apex Court in Sunil Kumar Gupta vs

The State Of Uttar Pradesh[4], the Apex Court has referred

the judgment in Sarabjit Singh and Another vs. State of

2019 (4) SCC 556

Punjab and Another[5], where the Apex Court has held in

the following:

Whereas the test of prima facie case may be sufficient

for taking cognizance of an offence at the stage of

framing of charge, the court must be satisfied that

there exists a strong suspicion. While framing charge in

terms of Section 227 of the Code, the court must

consider the entire materials on record to form an

opinion that the evidence if unrebutted would lead to a

judgment of conviction.

Whether a higher standard be set up for the purpose of

invoking the jurisdiction under Section 319 of the Code

is the question. The answer to these questions should

be rendered in the affirmative. Unless a higher standard

for the purpose of forming an opinion to summon a

person as an additional accused is laid down, the

ingredients thereof viz. (i) an extraordinary case, and

(ii) a case for sparingly (sic sparing) exercise of

jurisdiction, would not be satisfied."

(2009) 16 SCC 46

7. In view of the aforesaid discussions, it is clear that, the

learned Magistrate without considering the ingredients of Section

498(A) and Sections 3 & 4 of the Dowry Prohibition Act, has

erroneously considered the statements made by the de facto

complainant and allowed the Petition. Hence, this Court is of the

view that the statements made by the petitioners does not amount

to any cruelty or demand of dowry. Hence, Criminal Petition is liable

to be allowed.

8. Accordingly the Criminal Petition is allowed and

Crl.M.P.No.448 of 2018 in C.C.No.231 of 2018 dated 13.05.2019 is

hereby set aside and the Court below is directed to proceed against

the accused No.1, in accordance with law.

As a sequel, miscellaneous petitions, if any, pending in this

criminal petition shall stand closed.

_________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 07.02.2024 DSV

THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO

CRIMINAL PETITION No.3992 OF 2019

Date: 07 .02.2024

DSV

HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI MAIN CASE: Crl.P.No.3992 of 2019 PROCEEDING SHEET Sl. Office DATE ORDER No Note 07.02.2024 TRR, J

The Criminal Petition is allowed.

(vide separate order)

_______ TRR, J DSV