Madras High Court
Josephine Amirtha vs Jenifer Diana on 28 March, 2025
Crl.R.C.(MD)No.632 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.03.2025
Pronounced on : 28.03.2025
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.632 of 2024
and
Crl.M.P.(MD)No.6442 of 2024
Josephine Amirtha ... Petitioner
Vs.
1.Jenifer Diana
2.Sivakumar
3.The State rep. by
The Inspector of Police,
All Women Police Station,
Thoothukudi.
(Crime No.22 of 2022) ... Respondents
Prayer : This Criminal Revision Case filed under Sections 397 r/w 401
Cr.P.C., to call for the records pertaining to the order dated 24.05.2024
made in Cr.M.P.No.9261 of 2024 in C.C.No.232 of 2024 passed by the
learned Judicial Magistrate No.IV, Thoothukudi and set aside the same.
1/12
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Crl.R.C.(MD)No.632 of 2024
For Petitioner : Mr.T.Antony Arulraj
For R1 & R2 : Mr.B.Michael Sebastin
For R3 : Mrs.M.Aasha
Government Advocate (Crl. Side)
ORDER
The Criminal Revision is directed against the order passed in
Crl.M.P.No.9261 of 2024 dated 24.05.2024 on the file of the Court of the
Judicial Magistrate No.4, Thoothukudi, in discharging the respondents 1
and 2/accused 3 and 4.
2. On the basis of the complaint lodged by the petitioner, FIR came
to be registered in Crime No.22 of 2022 on 25.07.2022 against five
persons including the respondents 1 and 2 for the alleged offences under
Sections 498(A), 406 and 506(1) IPC and Section 4 of Dowry Prohibition
Act and after completing the investigation, the third respondent police has
laid the final report against five accused including the respondents 1 and 2
for the alleged offences under Sections 498(A), 406 and 506(1) IPC and
the case was taken on file in C.C.No.232 of 2024 on the file of the Court
of the Judicial Magistrate No.4, Thoothukudi. When the calender case was
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pending for framing of charges, the accused 3 and 4 invoking Section 239
Cr.P.C. filed a petition seeking discharge.
3. Admittedly, the marriage between the first accused and the
petitioner was solemnized on 27.01.2021 and that the second accused is
the mother, the first respondent/third accused is the sister and the fifth
accused is the brother of the first accused and the second respondent/
fourth accused is the husband of the third accused.
4. The case of the prosecution is that at the time of marriage, the
petitioner's parents gave 80 sovereign of gold jewels, household articles
worth about Rs.3 lakhs and cash of Rs.5 lakhs, that they have spent
Rs.7,50,000/- while the first accused was suffering from Corona, that the
first accused was promoted as Assistant Manager and was transferred to
Gujarat, that the petitioner along with the accused 1 and 2 had started to
reside in Gujarat, that the accused 1 and 2 had demanded the petitioner to
get ring, Smart TV, washing machine and car from her parents, that as per
the instigation of the second accused and the respondents 1 and 2, the first
accused sent the petitioner out of the matrimonial home forcibly on
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14.09.2021 and directed her to return with the additional dowry
demanded, that when the petitioner was demanding to return the 80
sovereign of gold jewels, they have caused criminal intimidation, that the
petitioner with the help of her father's friend at Gujarat managed to return
to her native place, that the petitioner after the marriage came to know that
the first accused is an impotent and that the respondents 1 and 2, by
suppressing the first accused's impotency, have cheated the petitioner and
her family.
5. The case of the respondents 1 and 2, in their discharge petition, is
that there is no truth in the charges alleged against them and the same is
nothing but a story cooked up by the petitioner to suit her purpose and to
enrich herself unlawfully, that the respondents 1 and 2 have been arrayed
as accused with sole and crooked intention of arm twisting and harassing
them to make unlawful gain, that they are not at all necessary parties to the
above case and have been unnecessarily dragged into the same, that the
respondents 1 and 2 are not in a position to traverse any of the allegations
pertaining to the first accused as they were not aware of the any disputes
between the first accused and the petitioner, that soon after the marriage
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between the first accused and the petitioner, they started living in their
separate residence at Chennai and Gujarat, that as per the version of the
prosecution, both of them lived jointly at 9 months and at that time, the
respondents 1 and 2 lived at Tirunelveli, that the second respondent is
working as Sub Inspector of Survey Department, that the complaint of the
petitioner was earlier forwarded to the Social Welfare Officer and the
Social Welfare Officer, after enquiry, had given a report that the
respondents 1 and 2 were present only at the time of marriage ceremony
and they have not received or involved in any act of receiving dowry, that
the respondents 1 and 2 have not played any role in the entire matrimonial
life of the petitioner and that the charges levelled against the respondents 1
and 2 are groundless and as such, they are entitled to be discharged from
the above case.
6. The third respondent has filed a counter statement raising
objections and further stated that the respondents 1 and 2 are residing at
Melashanmugapuram, Thoothukudi, that the investigation conducted by
the third respondent police and the statements recorded from the witnesses
would reveal that they were also involved in forcibly sending the
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petitioner out of the matrimonial home demanding further dowry, that the
veracity of the allegations/charges can only be gone into at the trial and
not in the present proceedings, that there are sufficient materials available
to frame charges against the respondents 1 and 2 and that therefore their
application for discharge is liable to be dismissed.
7. The learned Magistrate, after enquiry, has passed the impugned
order dated 24.05.2024, by holding that there are no sufficient materials to
frame charges against the respondents 1 and 2, allowed the petition and
thereby discharged the respondents 1 and 2. Challenging the said order,
the present revision came to be filed.
8. The learned Magistrate, in the impugned order, has observed that
the respondents 1 and 2 were present at the time of marriage and that the
petitioner and the first accused had left for Gujarat and while both of them
were residing at Gujarat, the respondents 1 and 2 were at Tirunelveli and
as such, there is absolutely no scope for the respondents 1 and 2 to take
part in the offence alleged.
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9. 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
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
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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”
10. 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:-
“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.
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17.2. The trial Judge is not a mere post office to
frame the charge at the instance of the prosecution.”
11. 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.
12. 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.
13. In the case on hand, the petitioner, in her complaint as well as in
her statement recorded under Section 161(3) Cr.P.C., has stated that after
fixing of marriage, the respondents 1 and 2 with the first accused came to
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her parents' house on 18.01.2021 and received the dowry amount of Rs.5
lakhs and that when the petitioner was at Gujarat, at the instigation of the
second accused and the respondents 1 and 2, the first accused sent the
petitioner out of the matrimonial home forcibly on 14.09.2021 directing
her to get the articles already demanded. As rightly contended by the
learned counsel appearing for the respondents 1 and 2, except the above
two sentences, the petitioner has not alleged anything against the
respondents 1 and 2. Though the petitioner has alleged that the
respondents 1 and 2 had also instigated for sending the petitioner out of
matrimonial home, she has not elaborated anything further. The
petitioner's father, mother, brother and her relative have given statements
under Section 161(3) statement reiterating the version of the complainant.
The other witnesses have also not alleged anything against the respondents
1 and 2. The third respondent, in the final report, has only reiterated the
complaint version and stated that at the instigation of the second accused
and the respondents 1 and 2, the first accused has sent the petitioner out of
the matrimonial home at Gujarat.
14. It is pertinent to mention that the Courts are duty bound to
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determine if there are sufficient grounds to proceed against the accused
and if there are not sufficient grounds, then the Courts must discharge the
accused. The purpose of Section 239 Cr.P.C. is to ensure that the Court is
satisfied that the accusations made against the accused are not frivolous.
During the discharge petition hearing, the Courts are required to evaluate
whether the allegations taken at their face value discloses existence of all
the ingredients of the alleged offence. In the present case, as rightly
contended by the learned counsel appearing for the respondents 1 and 2,
there are absolutely no material sufficient enough to frame charges and to
proceed against the respondents 1 and 2 and the learned Magistrate though
on a different footing discharged the respondents 1 and 2 and as such, the
same cannot be found fault with. Consequently, this Court concludes that
the revision is devoid of merit and the same is liable to be dismissed.
15. In the result, this Criminal Revision Case stands dismissed.
Consequently, connected Miscellaneous Petition is closed. No costs.
28.03.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
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K.MURALI SHANKAR,J.
csm
To
1.The Judicial Magistrate No.4,
Thoothukudi.
2.The Inspector of Police,
All Women Police Station,
Thoothukudi.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Pre-Delivery Order made in
and
Dated : 28.03.2025
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