Andhra Pradesh High Court - Amravati
Malli Charisma , vs The State Of Andhra Pradesh, on 6 November, 2024
APHC010511222022
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3396]
(Special Original Jurisdiction)
WEDNESDAY ,THE SIXTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION NO: 7652/2022
Between:
Malli Charisma , and Others ...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh and ...RESPONDENT/COMPLAINANT(S)
Others
Counsel for the Petitioner/accused(S):
1. V NITESH
Counsel for the Respondent/complainant(S):
1. PUBLIC PROSECUTOR (AP)
The Court made the following ORDER:
The instant criminal petition under Section 482 of the Code of Criminal
Procedure, 1973 (in short, "Cr.P.C.") has been filed by the Petitioners/ A2 to
A6 in C.C.No.850 of 2022 on the file of Additional Judicial Magistrate First
Class, Ananthapuramuseeking quashment of the case for the offences
punishable under Sections 420, 498-A r/w 34 IPC and Sections 3 & 4 Dowry
Prohibition Act.
VJP,J
2. Heard Sri Chilukuri Karthik, learned counsel representing Sri V.Nitesh,
learned counsel for the petitioners and Sri. K. Sandeep, learned Assistant
Public Prosecutor on behalf of the respondents. Though notice is served on
the respondent No.2, none appeared.
3. Learned counsel for the petitioners would submit that the complaint
itself is not maintainable under law. Learned counsel would submit that the
alleged marriage of A1 with the complainant is void marriage since A1 alleged
to have contracted marriage with respondent No.2 during the subsistence of
his 1st marriage. Learned counsel further would submit that the out of the
petitioners herein who are A2 to A6; A2 and A3 are the daughters of A1
through his 1st marriage, A4 is Elder brother of A1, A5 is the wife of A4 and A6
is younger brother of A1. Learned counsel further would submit that even if
the contents of the complaint are taken into consideration, except the ominous
allegations against the petitioners nothing in specific is alleged against the
petitioners in the complaint. Learned counsel further would submit that the
petitioners never stayed with A1 and respondent No.2 at any point of time.
They are residing separately. Absolutely no allegations made against the
petitioners to attract the offences punishable under Section 420 IPC.
4. Learned counsel places reliance on judgment of Hon'ble Apex Court in
SivacharanlalVerma & Another vs. State of Madhya Pradesh 1 and the
2007 15 SCC 369
VJP,J
order in Criminal Petition No.3741 of 2019 2of High Court of Andhra Pradesh
dated 29.02.2024.
5. Per contra, learned Assistant Public Prosecutor would submit that there
are allegations made against the petitioners in the complaint and Court may
pass appropriate orders.
6. The record shows though notice served on the respondent No. 2, none
appeared to submit any objections on her behalf. This court heard learned
Assistant Public Prosecutor. As can be seen from the complaint, the alleged
2nd marriage of respondent No.2 with A1 took place on 25.03.2010. The
complaint and the charge sheet would show that by the date of said marriage,
A1 had not obtained divorce from his 1st wife. Admittedly, A2 and A3 are the
daughters of A1 through his 1st marriage. The other petitioners who are A4 to
A6 are the family members of A1.
7. Now the point that would emerge for determination in the present
petition is
Whether the complaint which was lodged by the second wife for
commission of offences punishable under Section 498-A IPC is
maintainable during the subsistence of the first marriage?
8. A bare perusal of Section 482 makes it clear that the Code envisages
that inherent powers of the High Court are not limited or affected so as to
Criminal Petition No.3741 of 2019
VJP,J
make orders as may be necessary; (i) to give effect to any order under the
Code or, (ii) to prevent abuse of the process of any Court or, otherwise (iii) to
secure ends of justice. A court while sitting in Section 482 jurisdiction is not
functioning as a court of appeal or a court of revision. It must exercise its
powers to do real and substantial justice, depending on the facts and
circumstances of the case. These powers must be invoked for compelling
reasons of abuse of process of law or glaring injustice, which are against
sound principles of criminal jurisprudence.
9. The very same question fell for consideration before the Division Bench
of High Court of Chhattisgarh at Bilaspur in CRMP No.711 of 2022 dated
18.01.2024 in Suman Sharma and Ors. Vs. State of Chhattisgarh and
Ors3.Learned Judge therein observed two judgments rendered by the three
Judges Benches of the Supreme Court in the matters of Shivcharan Lal
Verma & Another v. State of Madhya Pradesh4 in and Rajinder Singh v.
State of Panjab 5 . After discussing the issue in detail, the question is
answered in the following lines:
"14.In view of the aforesaid discussion and legal position, we are of the
considered view that there is no apparent conflict with the decision
rendered by the three judges bench of Supreme Court in Shivcharan
Lal Verma (supra) and Rajinder Singh (supra), however, even if, there
is conflict, as it has been held by the Supreme Court in Union Territory
of Ladakh (supra), it is vividly clear that when there is conflicting
judgments of the Supreme Court of Benches of equal strength, it is the
earlier one which is to be followed by this Court, and accordingly in the
instant case Shivcharan Lal Verma (supra) has to be followed and
2024(1)CriminalCC 719
2007 (15) SCC 369
2015 (6) SCC 477
VJP,J
consequently the question is answered as under: -
The complaint or FIR lodged by second wife for commission of
offence punishable under Section 498A of the IPC would not be
tenable in light of principles of law laid down by their Lordships of
the Supreme Court in Shivcharan Lal Verma & Another V. State of
Madhya Pradesh,
[MANU/SC/0466/2002: (2007) 15 SCC 369]"
(emphasis supplied)
10. Admittedly, on the fact of it, the complaint and the chargesheet would
show that the complainant is the second wife. In the light of legal position
referred supra, the complaint for the offences under Section 498-A IPC is not
maintainable. Coming to the offence under Section 420 IPC, this Court is of
the considered view that the offence under Section 420 IPC is relating to the
principle offence i.e., 498-A IPC. In that view, this case has to go as well
11. In the result, the Criminal Petition is allowed. Criminal Proceedings in
C.C.No.850 of 2022 on the file of Additional Judicial Magistrate First Class,
Ananthapuramuagainst the petitioners is quashed. However, it is left open for
the complainant to pursue her remedies according to law on the complaint filed
in the present case.
Pending miscellaneous petitions, if any, shall stand closed.
______________________________________
JUSTICE VENKATA JYOTHIRMAI PRATAPA
Date :06.11.2024.
UPS
