Madras High Court
N.Vinotha Rani vs State Through on 3 June, 2025
Crl.R.C.(MD)No.575 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.03.2025
Pronounced on : 03.06.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.575 of 2024
and
Crl.M.P.(MD)No.5882 of 2024
N.Vinotha Rani ... Petitioner
Vs.
1.State through
Sub Inspector of Police,
All Woman Police Station,
Kuzhithurai,
Kanyakumari District.
(Crime No.25 of 2012)
2.S.Amala Nisha
(R2 is suo-motu impleaded as per order of the Court
dated 19.06.2024 in Crl.RC(MD)No.575 of 2024) ... Respondents
Prayer : This Criminal Revision Case filed under Section 397 r/w 401
Cr.P.C., to call for the records pertaining to the impugned order dated
18.03.2021 made in Crl.M.P.No.7817 of 2017 in Calendar Case No.115 of
1/14
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Crl.R.C.(MD)No.575 of 2024
2013 on the file of the Judicial Magistrate No.I, Kuzhithurai and to set
aside the same.
For Petitioner : Mr.M.R.Sreenivasan
For R1 : Mrs.M.Aasha
Government Advocate (Crl. Side)
For R2 : Mr.C.Muthu Saravanan
ORDER
The Criminal Revision is directed against the order passed in
Crl.M.P.No.7817 of 2017 in C.C.No.115 of 2013 dated 18.03.2021 on the
file of the Court of the Judicial Magistrate No.I, Kuzhithurai, dismissing
the petition for discharge filed under Section 239 of the Code of Criminal
Procedure.
2. On the basis of the complaint lodged by the second respondent/
defacto complainant, FIR came to be registered in Crime No.25 of 2012
dated 13.08.2012 against four persons including the petitioner for the
alleged offences under Sections 406, 498(A) and 497 IPC and Sections 3
and 4 of Dowry Prohibition Act. The first respondent, after completing the
investigation, has laid the final report against four persons including the
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petitioner for the alleged offences under Sections 498(A), 406 and 109
IPC and Sections 3 and 4 of Dowry Prohibition Act and the case was taken
on file in C.C.No.115 of 2013 and is pending on the file of the Judicial
Magistrate No.I, Kuzhithurai. When the calendar case was pending for
framing of charges, the petitioner/fourth accused invoking Section 239
Cr.P.C. has filed the above petition seeking discharge from the above case.
3. Admittedly, the marriage between the second respondent and the
first accused Alwin was solemnized on 28.08.2008 as per the Hindu
customs and rites. It is not in dispute that the second accused is the mother
and the third accused is the sister of the first accused and that the
petitioner is the wife of the second accused's brother.
4. The case of the prosecution is that the accused 1 to 3, after
receiving the dowry as demanded by them at the time of marriage, had
also demanded additional dowry, that the second respondent's father had
provided the money as demanded and also constructed a house, that the
first accused had illicit affairs with the petitioner and the second
respondent had seen them in a compromising position, that the second
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respondent had consumed more sleeping tablets in order to commit suicide
and that the accused had committed the offences under Sections 498(A),
406 and 109 IPC and Sections 3 and 4 of Dowry Prohibition Act.
5. Before entering into further, it is necessary to refer the judgment
of the Hon'ble Supreme Court in State by the Inspector of Police,
Chennai Vs. S.Selvi and another reported in (2018) 13 SCC 455.
“7. It is well settled by this Court in catena of
judgments including the cases of Union of India v. Prafulla
Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v.
State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v.
CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2
SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424,
State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711,
Niranjan Singh Karan Singh Punjabi vs. Jitendra Bhimraj
Bijjayya (1990) 4 SCC 76 and Superintendent &
Remembrancer of Legal Affairs, West Bangal v. Anil
Kumar Bhunja (1979) 4 SCC 274 that the Judge while
considering the question of framing charge under Section
227 of the Code in sessions cases (which is akin to Section
239 CrPC pertaining to warrant cases) has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
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against the accused has been made out; where the material
placed before the court discloses grave suspicion against
the accused which has not been properly explained, the
court will be fully justified in framing the charge; by and
large 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 rights to
discharge the accused. The Judge 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 statements 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 mater
and weigh the materials as if he was conducting a trial”
6. It is also necessary to refer the judgment of the Hon'ble Supreme
Court in Vikramjit Kakati Vs. The State of Assam reported in 2022 AIR
SC 3597, wherein, the Hon'ble Apex Court has referred the principles laid
down by the Hon'ble Supreme Court in M.E.Shivalingamurthy Vs.
Central Bureau of Investigation, Bengaluru reported in (2020) 2 SCC
768 and the relevant principles are extracted hereunder:-
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“10....
17.1. If two views are possible and one of them gives
rise to suspicion only as distinguished from grave
suspicion, the trial Judge would be empowered to
discharge the accused.
17.2. The trial Judge is not a mere post office to
frame the charge at the instance of the prosecution.”
7. It is settled law that at the stage of framing charges, the Court has
to prima facie consider whether there is sufficient ground for proceeding
against the accused and the Court is not required to appreciate evidence to
conclude whether the materials produced are sufficient or not for
convicting the accused.
8. It is also settled law that while considering an application seeking
discharge from a case, the Court is not expected to go deep of the
probative value of the material on record, but on the other hand, the Court
has to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, and for that purpose, the
Court cannot conduct a roving enquiry into the pros and cons of the matter
and weigh the evidence as if it is a main trial. Bearing the above legal
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position on mind, let us consider the case on hand.
9. It is pertinent to mention that, as already pointed out, FIR came to
be registered for the alleged offences under Sections 406, 498(A) and 497
IPC and Sections 3 and 4 of Dowry Prohibition Act but charge sheet came
to be filed only for the offences under Sections 498(A), 406 and 109 IPC
and Sections 3 and 4 of Dowry Prohibition Act and thereby excluding
Section 497 IPC. But the learned Magistrate, without considering the
charge sheet properly, has taken the case on file in C.C.No.115 of 2013 for
the offences under Sections 498(A), 406 and 497 IPC and Sections 3 and 4
of Dowry Prohibition Act.
10. The learned counsel appearing for the petitioner would mainly
contend that the only allegation levelled against the present petitioner is
that she had illicit affairs with the first accused, that the petitioner and the
first accused were living in adultery and that except the above, the second
respondent has not levelled any other allegations of dowry demand or
harassment or criminal breach of trust as against the petitioner.
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11. As already pointed, the Investigating Officer, though the case
was registered for the offence under Section 497 IPC, has rightly excluded
the same in the final report.
12. It is pertinent to note that the Hon'ble Supreme Court in Joseph
Shine Vs. Union of India reported in 2019 (3) SCC 39 has declared
Section 497 of IPC as unconstitutional and thereby decriminalized the
offence of adultery, but the learned Magistrate, without considering the
above aspect, has also taken cognizance for the offence under Section 497
IPC in a mechanical fashion and when the same was brought to the notice
of the Magistrate, who conducted enquiry in the discharge petition, has
also failed to apply his mind and proceeded to dismiss the discharge
petition in a very casual and mechanical manner. Hence, the question of
invoking Section 497 IPC against the petitioner does not arise at all.
13. The Investigating Officer, in the final report, has given his
opinion that the first accused had committed the offences under Sections
498(A) and 406 IPC and Sections 3 and 4 of Dowry Prohibition Act, that
the accused 2 and 3 had committed the offences under Section 498(A) IPC
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and Sections 3 and 4 of Dowry Prohibition Act and that the petitioner had
committed the offence under Section 109 IPC.
14. Section 109 IPC defines that an act or offence is said to be
committed in consequence of abetment, when it is committed in
consequence of the instigation, or in pursuance of the conspiracy, or with
the aid which constitutes the abetment. Abetment can take the form of
instigation, conspiracy or aiding. It is pertinent to mention that mens rea
i.e., intention to commit an act is an important element so as to attract the
abetment. The prosecution has to show that the accused must have
intentionally done something which amounted to instigation for another to
do an illegal act. For constituting an act of abetment by conspiracy, there
must be two or more people involved in the conspiracy and an illegal act
must take place in pursuance of that conspiracy. The third clause is
abetment by intentional aiding to do an illegal act or omission of a legal
act and the abettor facilitates or helps in committing the crime. In the case
on hand, neither the second respondent nor any of the witnesses have
implicated the petitioner that she abetted the other accused in the
commission of offences under Section 498(A) IPC and Sections 3 and 4 of
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Dowry Prohibition Act. As rightly contended by the learned counsel
appearing for the petitioner, there is absolutely no material to show that
the petitioner had abetted in the commission of offences referred above.
15. The Hon'ble Supreme Court in Dechamma I.M. @ Dechamma
Koushik Vs. The State of Karnataka and another passed in SLP (Crl.)
No.3421 of 2022 (2024 INSC 972) has held that a girlfriend or even a
woman with whom a man has had romantic or sexual relations outside of
marriage could not be construed to be a relative under Section 498(A)
IPC.
16. Considering the allegations at their face value in the FIR and in
the material placed in the final report, there is absolutely no averment or
material to show that the petitioner was in any way concerned with
causing harassment to the second respondent on account of non-fulfilment
of demand of dowry or that the petitioner had abetted the other accused in
the commission of offences stated above.
17. As already pointed out, the learned Magistrate, without
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conducting proper enquiry in the discharge petition, by simply observing
that the calendar case is pending from 2013, that no steps were taken by
the prosecution also, that the discharge petition is pending for long time
and that the Court had taken the cognizance against the accused including
the petitioner as prima facie case is made out from the available materials,
by holding that there is no need to proceed further in the discharge
petition, dismissed the same. It is very shocking and surprising to see the
way in which the impugned order came to be passed. No doubt, the
calender case is pending from 2013 and the petitioner has filed the
discharge petition in the year 2017, but the same was kept pending for
more than four years and lastly, it was dismissed in 2021.
18. Considering the above and in the absence of any materials to
frame charges against the petitioner, the impugned order dismissing the
discharge petition cannot be sustained and as such, the same is liable to be
set aside.
19. In the result, this Criminal Revision Case stands allowed and the
impugned order dated 18.03.2021 passed in Crl.M.P.No.7817 of 2017 is
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hereby set aside. The petitioner shall stand discharged in C.C.No.115 of
2013 on the file of the Judicial Magistrate No.I, Kuzhithurai.
Consequently, connected Miscellaneous Petition is closed. No costs.
03.06.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1.The Judicial Magistrate No.I,
Kuzhithurai.
2.The Sub Inspector of Police,
All Woman Police Station,
Kuzhithurai,
Kanyakumari District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
and
Dated : 03.06.2025
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