IN THE COURT OF SESSIONS JUDGE, (SOUTH) SAKET, AT

DELHI

SESSION CASE NO __/2023

IN
FIR NO.458 OF2021_
P.S.:- NEB SARAI,
FOR THE OFFENCES
U/S 304-B, 498-A, 406 OF IPC.

1. ALOK KUMAR SINHA

S/O LATE SH. CHANDRA MOHAN SINHA,
R/O :- FLAT NO. 302, MINTO ROAD HOSTEL,
DELHI-110002. PETITONER NO.1

2. SADHNA ANAND,
W/O;- ALOK KUMAR SINHA
S/O LATE SH. CHANDRA MOHAN SINHA,
R/O :- FLAT NO. 302, MINTO ROAD HOSTEL,
DELHI-110002.

PETITONER NO.2

VERSUS
1. STATE OF NCT,
REP. BY INVESTIGATING OFFICER,
DELHI POLICE.

2. AMAN CHOUDHARY,
S/O;- KAPLIESHWAR CHOUDHARY,
R/O;- VILLAGE PANCHGHACHIA,
TOLA;- DURGAPUR,
VILLAGE ;- SAHARSHA, BIHAR. ……RESPONDENTS

PETITION BY AND ON BEHALF OF PETTIONERS/ACCUSED

PERSONS UNDER SECTION 239 OF CODE OF CRIMINAL
PROCEDURE FOR DISCHARGE FROM THE OFFENCES AS
ALLEGED UNDER SECTION 304-B, 498A AND 406 OF INDIAN
PENAL CODE W.R.T FIR BEARING NO. 458 OF 2021
REGISTERED WITH P.S.;- NEBARAI, DELHI POLICE AND
CONSEQUENT CHARGESHEET DATED…………… FILED UNDER
SECTION 173 OF CODE OF CRIMINAL PROCEDURE BY THE
INVESTIGATING OFFICER, DELHI POLICE.

MOST RESPECTFULLY SHOWETH :

1. That the Petitioner no.1 and 2 hereby seeking benign

intervention of this court thereby seeking for discharge from
the criminal proceedings whereby they are arraigned as
accused no……… and accused no….. Respectively by the
Investigating Officer, Delhi Police vide charge sheet/Police
report dated……….. filed before the Ld. Court of M.M. (South),
Saket at Delhi, under section 173 of Code of Criminal
Procedure in FIR No. 458 of 2021, registered with P.S.:- Neb
Sarai, Delhi Police for the offences punishable U/S. 304-B,
498 and 406 IPC. It is submitted that Ld. Court of
Metropolitan Magistrate, South, (Saket) Vide order dated
………………. now committed the case to Sessions Court,
(South) Saket Delhi.

2. The petitioners hereby submits that the charge

sheet/Police report dated ………… filed by the respondent before
the LD. Court of M.M. (South), Saket Delhi filed by the respondent
No.1 on the information/statement as furnished by Respondent
no.2 and consequent initiation of criminal proceedings
in…………… before this Hon`ble Court is sheer abuse of process of
laws as the same was filed in blatant violation of provisions of code
of criminal procedure thereby attempting to implicate the
petitioners of false charges and accusation that cannot be
sustainable in the eyes of laws.

FACTUAL MATRIX :-

A. That it is submitted that the respondent No.1

maliciously furnished false and concocted
information/statement before the Executive
Magistrate/Tehsildar, Hauj Khas, Distt:- South, Delhi
resulting into registration of FIR No. 458 of 2021 with
P.S.:- Neb Sarai, thereby arraigned the petitioners as
accused persons with sole motive to implicate them on
false charge and accusation.

B. That it is not out of context to mention herein that during

the pendency of investigation of afore numbered FIR, the
petitioners approached the Sessions Court for grant
anticipatory bails vide ABP No………… and ABP
No……………….. Respectively, under section 438 of Code
of criminal procedure whereby both the petitioner were
duly enlarged on anticipatory bails on merits of their
case.
C. That after grant of anticipatory bail, both the petitioner
has joined the pending investigation and apprised all the
facts acquainted by them and fully cooperate the
investigation officer to unveils the truth involved in the
case under investigation. However, the Respondent No.1
with oblique motive and extraneous consideration had
arraigned the petitioners as an accused of this case and
recommended for trial.

D. The Petitioners submit that they are law abiding citizen

of country and did not dare to commit any crime
whatsoever, what to talk the offences as alleged in the
FIR and consequent Charge sheet/Police report. It is
submitted that neither any direct evidence have been
surfaced during investigation of this case nor any
material has been found that could be inferred that
prima facie case made out against the petitioners under
any stretch of imagination against the petitioners in
entire charge sheet/police report. Hence, in the
circumstances of the case, the petitioners are liable to be
discharged from the present criminal proceedings and
therefore approaches this Hon’ble Court through present
petition for discharge on following grounds amongst
others.
GROUNDS
A. NO CREDIBLE INFORMATION OR STATEMENT
FURNISHED EITHER AT THE TIME OF REGISTRATION OF
FIR OR DURING THE INEVSTIGATION.
It is submitted that the bare reading of FIR and consequent
Charge sheet/Police report ample demonstrate that the
respondent No.1 (Informant) was confused and perplexed as
to what allegations have been levelled against the petitioner
no.1 and did not make the statement before the Executive-
Magistrate, as to facts and circumstance which was otherwise
exists with sole motive to implicate him false charge and
accusation. It is submitted that information and his family
members had further made false and bereft statement to be
recorded during investigation before Investigating Officer of
this case only to false implicate the petitioners. The relevant
section from the complaint and statement recorded by the
Investigating Officer is reproduced below , where it can been
seen like in broad daylight, there is not shred of evidence
adduced in regards
(a) to the phone calls allegedly made by the petitioner
No.1.
(b) the blatant defamatory lie about the petitioner
No.1 that that he had demanded dowry from
Manjhli Bahu ( Annu) through conference calls.
B. That it is also not out of context to mention herein that the
Respondent No.1 in derogation of basics rules of investigation
 and for the reasons best known to him did not verify the
veracity and credibility’s of statements of proposed
prosecution witnesses from Manjhli Bahu. This facts itself
made it ample clear that the statement made by the proposed
witness are only blatant lies.
C. It is submitted that none of the allegation`s contained in FIR
is part of the chagresheet and none of the witnesses
statements supports the prosecution stories and therefore it is
established that the allegation contains in the FIR absolutely
false, baseless and didn`t contains an iota of truth. It is
further submitted that despite no offences made out against
the petitioners, the police had continued the investigation
against the petitioners and filed the charge sheet contains
completely different and with new allegations to that of FIR
without having sufficient evidences. Even charge sheet
allegations are not supported by the witnesses of the present
criminal case. It is submitted that witnesses from………….
to……….are none other than the blood relatives of the
deceased and can be termed as interested witnesses.
Futrhermore, the statement of independent witness does not
disclose the any alleged offences and the witnesses statements
contradict each other. It is submitted that absolutely no
evidence is available for allegations either in FIT or
Chargesheet and petitioner are liable too be discharged from
the present criminal proceedings under section 227 of CR.P.C.
Details of describes is below as under
Section 227 of Cr.P.C. :--

Discharge.—If, upon consideration of the record of the case

and the documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the
accused and record his reasons for so doing”

State Of Karnataka vs L. Muniswamy & Ors on 3 March, 1977

Equivalent citations: 1977 AIR 1489, 1977 SCR (3) 113
The Hon`ble Apex Court held that :-
“it is wrong to say that at the stage of flaming charges the
court cannot apply. its judicial mind to the consideration
whether or not there is any ground for presuming the
commission of the offence by the accused. As observed in the
latter case, the order framing a charge affects a person's
liberty substantially and therefore it is the duty of the court
to consider judi- cially whether the material warrants the
framing of the charge. It cannot blindly accept the decision of
the prosecution that the accused be. asked to face a trial. In
Vadilal Panchal's case. (supra) section 203 of the old Code was
under consideration, which provided that the Magistrate
could dismiss a complaint if after considering certain matters
mentioned in the section there was in his judgment no
sufficient ground for proceeding with the case.. To art extent
section 227 of the new Code contains an analogous power
which is conferred on the Sessions Court. It was held by this
Court, while considering the true scope of s. 203 of the old
Code that the Magistrate. was not bound to accept the State
Of Karnataka vs L. Muniswamy & Ors on 3 March, 1977
Indian Kanoon - http://indiankanoon.org/doc/548497/ 7 result
of an enquiry or investigation and that he must apply his
judicial mind to the material on which he had to form his
judgment. These decisions show that for' the purpose of
determining whether there is sufficient ground for proceeding
against an accused the court possesses a comparatively wider
discretion in the exercise of which. it can determine the
question whether the material on the record, if unrebutted, is
such on the: basis of which a conviction can-be said
reasonably to be possible. We are therefore in agreement with
the view of the High Court that the material on which. the
prosecution proposes.to rely against the respondents is wholly
inade- quate to. sustain the charge that they are in any
manner connected with the assault on the complainant. We
would, however, like to observe that nothing in our judgment
or in the .judgment of the High Court should be taken as
detract- ing from the case of the prosecution, to. which we
have not applied our mind, as against accused Nos. 1 to 9.
The case against those accused must take its due and lawful
course.”
Imtiaz Ahmed vs State Of Madhya Pradesh on 28 November, 1996
Equivalent citations: 1997 CriLJ 1844 The High Court of Madhya
Pradesh :-
The exercise of framing of charges against the accused is an
important step in a criminal trial. It is neither mere observing
of a formality nor a mechanical process. Rather the order,
directing framing of charges, is a pre-trial judicial
pronouncement of the existence of a prima facie case against
the accused for making him to face trial on a particular
charge. It substantially affects his liberty. Though it is not
always necessary that the order, directing framing of charges,
should be a detailed one but the application of mind, by the
trial Court, to the allegations and material against the
accused should always be apparent from such an order.
Nevertheless, the above does not mean that the trial Court is
to undertake a roving enquiry at the stage of framing of
charges. At this stage the enquiry has to be for a limited
purpose only.

NO EVIDENCE ADDUCED OR SURFACED TO SUPPORT

THE CHAGRESHEET
a. It is submitted that the allegations made in FIR either with
respect to disputes pertaining to property which is otherwise
owned by the mother-in-laws of deceased or administration of
anti pregnancy pills are completely baseless, false and denied
by the petitioners. None of witnesses including the blood
 relatives of the deceased substantiate the allegations and no
evidence has to be found in support of this allegations. The
admitted facts that deceased was ready and willing to join the
husband and also requested him to join at Delhi specifically
established that both of them wanted lead their matrimonial
life happily. While inviting the deceased at Delhi, No demand
of dowry whatsoever as alleged by the petitioners were made
what to talk of cruelty, and therefore it is safely concluded that
the allegations made in the charge sheet is whimsical and
therefore liable to be dropped against the petitoners.

b. It is submitted that no evidence whatsoever, is adduced in

support of and to attract the key ingredient of section 304-B,
498- A and Section 406 of Indian Penal Code. All the
allegations are bereft of details and thereby vague in nature.
c. It is submitted that none of the witness’s statement under
section 161 of Cr.P.C. support the allegation of respondent
no.1 in FIR . It is further submitted that allegations contained
in the chargesheet/police report were not supported by
proposed witnesses as 03 out …………. Proposed witnesses are
none other than the blood relatives of the deceased and
Respondent No.1/informant who are thereby to be discounted
as interested witnesses Even going by the allegations read
from their 162 Cr.P.C statements, it is evident that they are
not eye witnesses to any of the incident or allegation alleged by
respondent no.1 in the present criminal case. The rests of the
 witnesses are independent witnesses whose statement do not
disclose the commission of any offences whatsoever as alleged
in the charge sheet /police report filed by the res[pendent no.1
the did not support
d. It is submitted that the admitted fact is that the Accused No.1
(Abhishek Anand) married the deceased and also requested
her to join him at Delhi establishes that He was interested to
lead happy and peaceful matrimonial life with her husband.
While inviting deceased from matrimonial home either at
Purina or Delhi, no demands of any nature were made by the
Petitioner or his family members.
e. It is submitted that the allegation contained in FIR with
respect to torture extended by the petitioner no,.2 to bring the
dowry otherwise she would not get share in the property
situated at Purnia are false and baseless. Moreover be that it
may be, the petitioner no. 2 sought the share for the property
owned by her mother which cannot be considered as demand
for dowry from the respondent no.1 or his family by any
stretch of imagination.
f. That it is submitted that the deceased had informed the
informant and his relatives about the cruelty or harassment
whatsoever as perpetrated by the petitioner to deceased.
However, it is submitted that there is no allegations with
respect to confinements or she has not been prevented from
the out world and moreover the informant and his relative did
not take any significant steps either to prevent the cruelty or
 to save her from the alleged perpetuated cruelty or
harassment.
g. That it is submitted that the allegations pertaining to
conference calls to deceased and demands of dowry are
absolutely false, baseless and concocted and no evidence are
found by the Investigating Officer during investigation. It is
submitted that no independent corroborative evidence is
proposed to be adduced during the trial to substantiate the
aforesaid allegations. It is submitted that if this allegation
would not be rebutted or uncontroverted after conclusion of
trial, even then the prosecution will miserably fail to
substantiate the allegations, and under these circumstances
the proceedings is liable to be dropped at this stage of trial.
h. That the malicious intent to false implicate and disrepute the
accused No.4 (Bhawna Anand) on the part of informant`s and
interested witness is evident from the facts that all of them
had been testified that “she did not have any child and this is
the prime reasons that Petitioner’s family had administered
anti-pregnancy pills through coercion”. It is humbly submitted
that by grace of god, she gave birth to one healthy child
during the pending investigation and therefore it is safely
inferred that the decision to become mother is solely depends
on her and there was no medical complication. It is submitted
that therefore the prosecution`s version about the
administration of anti pregnancy pill also did not sustain on
 this ground as the same are mere fictitious and far away from
the truth.

i. It is submitted that allegations made in the FIR by respondent

no.2 was itself contradicted by the witnesses by blood relatives
of respondent no.2, who were also considered witnesses in the
present case and do not support his version and therefore the
allegation as contained in FIR is concocted baseless and did
not warrant further criminal proceedings.
j. It is submitted that the allegations made in FIR that
deceased`s husband`s family members i.e. Mother, sister and
brother-in-laws advised on phones to perpetrate the offences
against the deceased is absolutely false and denied by the
petitioners. None of the witnesses as per 161 Cr.P.C.
satements support the version of respondent no.2 allegations.
Even the parents/blood relatives of the respondent no.2 who
were also interested witnesses in the case, do not support the
respondent n0. 2 allegations. No evidence is adduced for this
allegation. Respondent No.1 failed to investigate this allegation
to reveal the truth from husk of false allegation of respondent
no.2. Further it is submitted that this allegation too is false.
This sole allegation falsely and routinely impleaded the in-laws
of deceased in these false criminal proceedings.
k. It is submitted that the allegations in charge sheet that the
husband of deceased harassed the deceased physically and
mentally at Purnia and Delhi is absolutely false and denied by
 the petitioner. The allegation is vague in nature bereft of any
meaningful details and the details of the households items
purchased by the deceased or respondent no` parents at
Purnia were also not disclosed and also the household items
demanded by the petitioner is not disclosed. None of the
witnesses as per statment recorded under section 161 of
CR.P.C. the respondent no.2 allegation on physical
harassment. No reliable evidence available for this allegations.
l. It is submitted that the allegation in the charge sheet that
petitioners ever harassed the deceased for additional demand
of dowry after the solemnisation marriage and the same were
absolutely false and denied by the petitoners. None of
witnesses as per CR.P.C. 161 statements support the
respondent no.2 allegation on additional demand of dowry. No
reliable evidence available for this allegations.
ABUSE OF PROCESS OF LAW BY WAY OF MAKING VAGUE
& OMNIBUS ALLEGATIONS ON IN LAWS OF DECEASED.
m.It is submitted that the allegations regarding physical and
mental harasmernt for Dowry were vague and bereft of any
crtical details of date, time and place as mandatpry to be
considered that should go into the charge to be laid on the
petitioner/accused persons.
n. Further it is submitted that mother of the husband is an
elderly citizen and permanent citizen of Purnia. The sister are
permanent citizen of Delhi and ……….. and never shared any
house hold item with deceased at any juncture of time. They
 were maliciously implicated into this vexatious case, with an
evil intent to destroy their peace of mind, reputation and
dignity in the societies they live in with single, baseless
allegations of instigation which cannot attract the provisio9ns
of 304-B, 498A and 406 IPC by any stretch of imagination as
laid down by the catena of judgment pronounced by Hon`ble
Apex Court
Judgement relied on :-
Preeti Gupta & ANr. Versus State of Jharkhand (2010) 7
SCC 667.
Geeta Mehrotra & Anr. Versus State of U.P. & Anr. 2012
(10) SCC 741
Varala Bharath Kumar Versus The State of Telangana
(2017) 9 SCC 413.
K. Subba Rao Versus The State of Telangana 2018 SCC
online SC 1080.

IMPROPER INVESTIGATION
It is submitted that the respondent no.1 did not conduct
the investigation in neutral and impartial manner and
conducted complete improper investigation thereby
leading to many unanswerable question in it`s
chargesheet/police report filed before the Ld. M.M. Court,
South, Saket at Delhi
o. It is submitted that the respondent conducted the
investigation and filed the investigation report which
 completely over looked the facts that only accsued no.1 and
deceased lived together in Khanpur at Delhi. The Respondent
No.1 did not consider the facts that none of the petitioner or
in-laws of deceased i.e. whether mother, sister or brother-in-
laws has ever lived with the deceased. Moreover, the
investigating officer failed to collect the possible evidence with
respect to allegation as levelled against the petitioner which
would reveals the falsification of allegations contained in FIR
as well as innocence of the petitioners that they were not
involved in the commission of offences, if any
p. That it is submitted that the registration of FIR is nothing but
vivid creation of afterthought and ripe to declare a manifestly
malafide institution of criminal proceedings will towards the
accused/petitoners. It is further submitted that the FIR as
unleashed by the respondent no,2 with an uncontained
malicious vendetta despite having any admissible justification
or independent supporting or corroborative evidence, the
proceedings is liable to be dropped even at pre-trial stage.

q. It is submitted that in stark contrast to the version of

respondent no.2, all the independent witnesses from ………….
To………..did not testifies the cruelty in any manner or
demand of dowry from any corner by the petitoners.

r. It is submitted that all the independent witnesses from………..

to…………..testified tht ………………. . This disclosure by
 prosecution witnesses themselves aptly glorifies the malicious
intent with which the respondent no.2 has suppressed the
material facts to the investigating officer to maliciously
prosecute the petitioners.

s. It is submitted that fair investigation and fair trial in a

criminal case have been read as part and parcel of Article 21
of the Constitution of Indi which guarantees to every persons,
the fundamental right to life and personal liberty. The
petitioner have already highlighted , while elaborating on the
various grounds taken about the para , the fundamental
lapses and glaring inadequacies in the investigation performed
by the respondent No.1/Investigating Officer in this instant
case.

In babhubhai case, the Hon`ble Supreme Court held that “Not

only the Fair trial but fair investigation is also part of
constitutional rights guaranteed under Articles 21 of the
Constitution of India. Therefore, investigation must be fair,
transparent and judicious as it is the minimum requirement of
rule of law. Investigating agency cannot be permitted to
conduct an investigation in tainted and biased manner, Where
non- interference of the Court would ultimately result in
failure of justice, the court must interfere ”.
In Nirmal Singh Kahlo An accused is entitled to a fair
investigation. Fair investigation and fair trial are concomitant
to preservation of fundamental rights of an accused under
article 21 of the constitution of India. But the state has a
larger obligation i.e. to maintain law and order, public order
and preservation of peace and harmony in the society. A victim
of crime , thus, is equally entitled to a fair investigation.

In Rajesh Gutta case, The Hon`ble Court of Andhra Pradesh

held that the Police Officer has to question the \victim girl,
witnesses and contradict the witnesses and record the same
The First duty of the investigating Officer is to find out the
probability and truthfulness of her complaint unless otherwise
the complainant`s version appraised by the investigating
officer with the facts and circumstances of the case. Merely
recording the statement as stated by the witnesses cannot be
called as investigation. Investigation includes examination of
the of the witnesses, confronting the witnesses on the basis of
materials collected by the Investigating Officer and also the
version of the person who is aggrieved because he said
complaint. Mere reproduction of the complaint without proper
examination cannot be called as statement recorded during
investigation.
This ratio is directly applicable in the instant case. As is
evident from a simple comparison of the FIR and the witness
sttatments of Lws ………….. is exact replication of the
Complaint dated………. Which were incidentally recorded
on…………by respondent no.1
In addition of the above, as can been seen from case diary
entries, the statement of proposed witnesses obtained at
PanchGhachia …………………and all of them testified as
…………
It is submitted that nowhere does these statements disclose
any offences attracting the provisons of IPC 304-B, 498-A 406
IPC allegedly against accused/petitoners.
It is submitted that material available on records and
replicated statement of witnesses and considering the totality
of circumstances which can be noted as nothing but hearsay
in nature or from the statement of independent witnesses, it is
indiscernible and not clear what was the legal basis for the
investigating Officer to file the charge sheet against the
petitioners. It is abundantly vivid that the Investigating Officer
does not have proper understanding on what allegations
attract the provisions of 304B, 498 A, 406 IPC and which do
not have actual knowledge of a catena of Judgement of
Hon`ble Apex Court and several High Courts that categorically
defined and established what would qualify for both the
explanations given for “Cruelty” as envisaged under 498 A IPC.
Explanation – For the purpose of this section, “Cruelty”
means-
(a) Any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury
o danger to life, limb or health (whether mental or physical)
of the woman, or
(b)Harassment of the woman where such harassment is with a
view to coerding her or any person related to her to meet
any unlawful demand for any property or valuable security
or is account of failure by her or any person related to her
to meet such demand.

Therefore it can be safely concluded, thereby, that the

investigation was amply motivated, botched up, improper
and incomplete and reeks of malicious intent or half-
knowledge which was not sufficient to investigate a case of
304-B, 498A and 406 IPC and which was conducted with
fallacies of size.
PRAYER
Hence in view of the aforestated legal grounds which are
aptly supported by facts and circumstances, culled entirely
from the documents and material submitted and relied on
by the prosecution itself in the present criminal
proceedings, it is crystal clear that no prima facies case is
made out attracting the section 304B, 498A and 406 IPC
and as such it is most respectfully prayed to this Hon`ble
Court that :-
A. Pass an order to the effects that the petitoners be
discharged from the present criminal proceedings
arising out of FIR No. 458 of 2021, P.S.:- Neb Sarai
and chargesheet dated filed before the Ld. Court of
MM,-06, South, Saket Delhi.
 And/or
B. Pass an appropriate order as may be deem fit and
proper in the facts and circumstances of this case.
necessary in

When accused shall be discharged in Sessions trial:

Section 227 of the Code defines that if the judge considers that
there is no sufficient ground for proceeding against the accused,
upon hearing the submissions, of the prosecution and the accused
and consideration of the record of the case along with the
documents submitted therewith, he shall discharge the accused
and record reasons also for doing so.

Discharge of Accused and its Procedure under Section 227 of

Cr.P.C.
Section 227 Cr.P.C deals with “discharge of the accused in a
“Sessions Cases”.
Section 226 Cr.P.C also must be read together.
There are “two” important words in Section 227 Cr.P.C.
(a) Hearing submission of the accused [AIR 2005 SC 359]
(b) “No sufficient grounds for proceeding against the accused”.
1) AIR 2008 SC 299.
2) Union of India Vs. Prafulla Kumar Samal and another [1979
(3) SCC P.4]
(c) Proper basis for framing of charge [2008 (2) SCC 561]
After receipt of case documents supplied under section 207 Cr.P.C
whether the accused can bring it to the notice of the Court, that no
material is available to proceed the case against him and can he ask
for discharge.
1) Dattatreya Samant Vs. State of Maharashtra
[1981 Cr.L.J.1819 (Bombay)]
2) Public Prosecutor Vs. T.D. Khajanalli [1980(2) ALT 138].
Discharge is a Judicial order.
3) Rama Swamy Gounder Vs. State [1981 Crl.L.J. 1054 (Madras)]
4) Ajay Kumar Parmar Vs. State of Rajasthan [2012 (12) SCC
406]
7 GUIDING PRINCIPLES ON DISCHARGE AND FRAMING OF
CHARGE
In the case of Vijayan Vs. State of Kerala and another (2010 SCC
398 SC. 1979 3 SCC P.4=AIR 1979 SC P.366) in the case of Union
of India Vs. Prafulla Kumar Samal and another. Where in the
Hon’ble Supreme Court formulated the following 7 guiding
principles.

1. The judge while considering the question of framing the charges

U/Sec. 227 Cr.P.C 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. To
determine prima facie case would depend upon the facts of each
case.
2. Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly
explained, the court will be fully justified in framing a charge and
proceeding with the trial.
3. The court can not act merely as a post office or a mouth piece of
the prosecution but it has to consider the broad probabilities of the
case. There cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if a trial was being conducted.
4. On the basis of material on record if the court could form an
opinion that the accused might have committed the offence, it can
frame the charge.
5. At the time of framing of the charges, the probative value of the
material on record can not be gone into but before framing of
charge the Court must apply it’s judicial mind on the material
placed on record and must be satisfied that the commission by the
accused was possible.
6. At the stage of Sec.227 and 228 Cr.P.C, the court is required to
evaluate the material and documents on record with a view to find
out the existence of all the ingredients constituting the alleged
offence but the court cannot be expected to presume that the
prosecution story is gospel truth.
7. If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial judge will be
empowered to discharge the accused irrespective of the result of the
trial.
Legal Authorities on the above seven points:
2014(11) SCC 709 State of Tamilnadu Represented by the
Inspector of Police Vigilance and Anti corruption Vs. N.Suresh
Rajan (In ACB case).
At the Stage of consideration of an application for discharge, Court
has to proceed with an assumption that the materials brought on
record by prosecution are true and to evaluate the said materials
and documents with a view to find out whether the facts emerging
there from taken at their face value disclose the existence of all the
ingredients constituting the offence.
Whether the material which is produced by the accused can be
looked into by the session’s court?

In the case of Satish Mehra v. Delhi Administration and

Another reported in (1996) 9 SCC 766, the Hon’ble Supreme
Court held that if the accused produces any convincing material at
the stage framing of charge which might drastically effect the very
sustainability of the case, it is unfair to suggest that no such
material should be considered into by the court at that stage.

2013(11) SCC 476. Sheoroj Singh Ahlawat Vs. State of U.P.

At the time of framing of charge the court is required to evaluate the
material and documents on record to decide whether there is a
ground for presuming that the accused had committed the offence.
There is no need to evaluate the sufficiency of evidence to convict
the accused. Materials brought on record by the prosecution can be
believed to be true, but their probative value cannot be decided at
that stage. The accused is entitled to urge his contentions while
entertaining the discharge application only on the material
submitted by the prosecution, but he is not entitled to produce any
material a that stage and the court is not required to consider any
such material. If two views are possible and one of them gives rise
to suspicion only as distinguished from grave suspicion, the trial
judge is empowered to discharge the accused, irrespective of the
result of the trial.
State of Karnataka Lokayukta M.R. Hiremat (2019 SCC P. 734).
At the stage of considering an application for discharge, the court
must proceed on the assumption that the material which has been
brought on record by the prosecution is true and evaluate the
material in order to determine whether the facts emerging from the
material taken on its face value, disclose the existence of the
ingredients necessary to constitute the offence.
State of Karnataka Vs. L.Muniswamy (AIR 1977 SC P.1489).
The Hon’ble Supreme Court Held that the object of the provisions
which require the Sessions Judge to record its reasons while
entertaining Discharge petition U/Sec. 227 Cr.P.C is to enable the
superior court to examine illegality of the impunged order. In that
case the trial court did not assign any reason in the impunged order
while refusing to discharge the accused as such it suffers from
serious infirmity.
State of Orissa Vs. Debendra nath Padhi (2005 (1) SCC
P.568=AIR 2005
SC P.369)
A three judge bench of Hon’ble Supreme Court held that Sec. 227
Cr.P.C is enacted in the Code for the purpose of saving the accused
from unnecessary harassment, by saying prolonged trial. The same
principle was laid down in Kevankrishna Vs. Suraj Bhan 1980
SCC Supplement P.499. The Hon’ble Apex Court observed in this
case that the decision rendered by it in the case of Sathish Mehra
Vs. Delhi Administration (1996(9) SCC P.766) is not a good law.

APPLICATION FOR DISCHARGE IN CASES INSTITUTED BASING

ON POLICE REPORT AND OTHER WISE.
II – SECTION 239 OF CR.P.C.

Legal authorities:
In the case of Union of India v. Prafulla Kumar Samal &
Another ,
(1979) 3 SCC 4 the Hon’ble Supreme Court held that the words
used in the context ‘not sufficient ground for proceeding against the
accused’ show that the Judge cannot be assumed to be a post office
to frame the charges at the instruction of the prosecution, and
application of judicial mind to the facts of the case is necessary to
determine whether a case has been made out by the prosecution for
trial. In determining this fact, it is not mandatory to drive into the
pros and cons of the matter by the court. There is major distinction
as regards discharge of an accused from a warrant case instituted
upon a police report and a warrant case instituted upon a private
complaint filed under Section 200 Cr.P.C. was already discussed
while referring Sec. 239 Cr.P.C, hence requires no repetition.
The Hon'ble Supreme Court in Ajoy Kumar Ghose Versus State Of
Jharkhand & Anr. ( 2009 (14) SCC 115) held that there is a clear
difference in
Sections 245(1) and 245(2) of Cr.P.C.
• Under Section 245(1), the Magistrate has the advantage of the
evidence
led by the prosecution before him under Section 244 and he has to
consider whether if the evidence remains unrebutted, the conviction
of
the accused would be warranted. If there is no discernible
incriminating
material in the evidence, then the Magistrate proceeds to discharge
the
accused under Section 245(1) Cr.P.C.
• The situation under Section 245(2) Cr.P.C. is, however, different.
 Under Sec.245(2), the Magistrate has the power of discharging
the
accused at any previous stage of the case, i.e., even before such
evidence
is led.
Pg.15
 However, for discharging an accused under Section 245(2)
Cr.P.C.,
the Magistrate has to come to a finding that the charge is
groundless.
 There is no question of any consideration of evidence at that
stage,
because no witnesses will be examined on behalf of the
complainant except the sworn statements U/Sec. 200 Cr.P.C.
 The Magistrate can take this decision before the accused appears
or is
brought before the Court or the evidence is led under Section 244
Cr.P.C.
 The words appearing in Section 245(2) Cr.P.C. "at any previous
stage of
the case", clearly bring out this position.
Now the question is, "what is that "previous stage".
• The previous stage would obviously before the evidence of the
prosecution under Section 244(1) Cr.P.C. is completed or any stage
prior
to that.
• Such stages would be under Sections 200 Cr.P.C. to Section 204
Cr.P.C.
Other Decisions:

RAJESH GUTTA V. STATE OF A.P & ANR.

1. Since the de facto complainant in both the petitions is one and the same
and the petitioners are the husband and mother-in-law of the daughter of the
complainant respectively, both the petitions heard together and are being
disposed of by this common order. Petitioners approach this Court with a
prayer to quash the proceedings against them in C.C No. 507 of 2006 on the
file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad,
whereby they are facing charge for the offence punishable under Sections
498-A, 494 and 511 of IPC and 3 and 4 of the Dowry Prohibition Act.

2. Heard both sides.

3. The marriage of the de facto complainant's daughter with the petitioner in

Cri. P. No. 2976 of 2009 took place in the year 2004. The complaint is lodged
on 31.07.2006 For the disposal of this petition, for better appreciation this
Court is of the view that the entire complaint can be reproduced even though
it is in length:

Date: 31st July 2006.

The Station House Officer,

Malakpet,

Hyderabad.

Sub: Complaint regarding demand for dowry, accepting dowry, demand for
additional dowry and subjecting my daughter Mrs. Pallavi to extreme cruelty
on failure to meet the said demands.
Sir/Madam,

1. I Ram Mohan Rao v. Pasupuleti, a native of Hyderabad and residing in

U.S.A submit the following facts with regard to the offences committed by
my Son-in-law Mr. Rajesh Gutta and his family members in subjecting my
daughter Mrs. Pallavi to extreme cruelty during her matrimonial life in India
especially in Hyderabad and later on in U.S.A, for demanding dowry before
the marriage and for unlawful demands after the marriage and planning for
bigamy.

2. I state that during the middle of the year 2004, I was looking for a marriage
alliance for my daughter a graduate with Honours in Page: 3508Chemistry
and working as a supervisor in a Pharmaceutical company in Philadelphia,
Pennsylvania, U.S.A I got the reference of Mr. Rajesh Gutta residing in
Birmingham, Alabama State, U.S.A in July 2004 through Bharat matrimony
website. I contacted him over phone and found out details of his family
members, given as Smt. Swarajya Lakshmi (mother), Satish Gutta (Younger
brother) Sakhamuri Rama Chandra Rao (adopted father), S. Parvathi Devi
(adopted mother). On my invitation Mr. Rajesh visited my house on
29.08.2004 and then I contacted his elders in India for the alliance. I was
shocked at the terms and pre-conditions put forth for finalizing the alliance,
which included payment of Rs. 15 lakhs dowry before marriage (document
enclosed), a diamond ring for the bridegroom and expensive clothes for their
relatives numbering 13 families. Though I was opposed to the practice of
dowry demand, I was forced to accept the same.
3. I state that on account of the above ‘dowry’ demands by the said persons
and insistence for payment of dowry before marriage, I transferred 30,000/-
U.S dollars to bank account No. 001-1-427374/602601508969 of Mrs. Gutta
Swarajya Lakshmi maintained in ICICI bank in India on 12th October 2004
as per their demand (document enclosed).

4. On 4th Nov-2004 the abovesaid persons visited our house at Plot No. 166,
Sri Puram Colony, Malakpet, Hyderabad-500016 and insisted that an
additional amount of Rs. 2,50,000/- must be paid to Smt. G. Swarajya
Lakshmi, Rs. 1,50,000/- being to complete the agreed sum of Rs. 15.00 lakhs
towards dowry and Rs. 1,00,000/- for jewellery for the bridegroom, I
obtained a Demand Draft for Rs. 2,50,000/- bearing No. 0717843372 drawn
on SBI, Main Branch, Hyderabad on 16th November 2004 favoring Mrs. G.
Swarajya Lakshmi i.e two days before the marriage scheduled on 18th
November 2004.

5. I state that the marriage of my daughter with Mr. Rajesh Gutta was
performed as per Hindu rights and traditions on 18th November, 2004 at Jaya
Gardens, Somajiguda, Hyderabad (documents & photographs enclosed) in
the most befitting manner and registered in Court on 20th November, 2004
(document enclosed).

6. Immediately after the marriage Mrs. G. Swarjya Lakshmi demanded that I

should pay an additional sum of Rs. 1,50,000/- towards Adapaduchu Katnam
at the marriage venue for his cousin sisters, two of whom were living abroad
while the third sister Mrs. Sashikala residing in India. This amount was paid
in cash to Mrs. Sashikala who attended the wedding.

7. I state that after the marriage of my daughter she was in India till 27th
November, 2004 and immediately after the marriage, my son-in-law, his
mother and his younger brother started humiliating my daughter with nasty
comments for trivial issues. On the day of their marriage my son-in-law
informed my daughter that he was offered Rs. 50.00 Lakhs as dowry for an
Australian alliance but married my daughter, as she was a U.S Citizen.

8. I state that before the marriage Mr. Rajesh was staying at Alabama and my
daughter was employed in Philadelphia, Pennsylvania and both of them had
mutually decided that after the marriage my daughter will continue her job
and commute to Alabama. In February/March 2005, Mr. Rajesh my son-in-
law forced my daughter to resign her job threatening that he would abandon
her and the marriage if she did not leave the job and move to Alabama.

9. I submit that after my daughter joined him at Alabama, my son-in-law

started demanding for more money on some pretext or the other including
purchase of a flat in Chennai, India.

10. In June 2005 my son-in-law forced my daughter to increase the credit

limit of her credit card and made her transfer 8,000/- US dollars for clearing
his pre-marital debts. On resistance my daughter was frequently subjected to
physical assault and cruelty.
11. In Sep. 2005 when my daughter and my son-in-law came to India for 15
days my daughter's mother-in-law humiliated, abused and insulted her and
most of the times she was put under house-arrest.

12. When my daughter returned to U.S Page: 3509on 25th Sep. 2005 along
with her husband she was in nervous wreck condition on account of the
continuous harassment by her husband and mother-in-law. My daughter came
to our house on 30th Sep. 2005 in order to regain normally and requested her
husband to come over to Philadelphia to sort out the issues but he refused.
The conduct of my son-in-law and his close relatives namely. Mrs. G.
Swarajya Lakshmi, Mr. Rama Chandra Rao and Mrs. Parvathi resulted in my
daughter going into a state of depression, which drove her to a suicidal mood
on several occasions.

13. On 14th 0ct. 05 my son-in-law came to my house, apologized for his

cruel behaviour and actions and made a firm commitment that he would
change his behaviour towards my daughter. It was a great news for all of us
and my daughter showed her willingness to join her husband in the 1st week
of Nov'2005.

14. All of us went to Alabama on 4th Nov. 2005 but my son-in-law was not
present at the house. To my daughter's surprise she found an envelope
containing a credit card in her name, which she had never applied. On
enquiry she came to know that her husband had obtained a credit card in her
name using her social security number and 5,000/- U.S dollars had already
been withdrawn through the said card. This act of my son-in-law was nothing
but an identity-theft and fraud. Anticipating further fraudulent transactions by
her husband my daughter alerted the Credit Card Bureau.

15. Immediately after we returned from Alabama my son-in-law rang to my

daughter and requested her to join him. Smelling a foul-play of being killed
she did not go.

16. We came to know through reliable sources that my son-in-law has been
planning to get married again though his marriage with my daughter was still
subsisting. This was confirmed when we checked his profile on websites of
two reputed marriage bureaus (Bharat Matrimonial & Kaakateeya
Matrimonial) (documents enclosed) wherein he had renewed his profile for
marriage on 22nd Oct. 2005, claiming himself to be a 27 year old eligible
bachelor, which is nothing but clear case of attempting to commit bigamy.

17. Simultaneously my son-in-law started making false accusations

assassinating my daughter's character and filed for divorce in December
2005. The above acts had a severe effect on my daughter's physical and
emotional condition due to which she went into a state of acute depression.

18. The present miserable state of my daughter is because of the greed of my

son-in-law and his parents in demanding additional dowry for monetary gains
and continued harassment and mental and physical torture by the abovesaid
persons.
19. We have recently come to know through reliable sources that my son-in-
law Mr. Rajesh Gutta is getting married again, scheduled to be held in USA
in the first week of August'2006.

20. I also bring to your kind notice that my daughter's mother-in-law Smt.
Swarajya Lakshmi Gutta, presently staying in Chennai, will leave for USA in
the early hours of Tuesday the 1st August 2006 to attend her elder son's
marriage. We are also informed that the younger brother of my son-in-law
will also reach USA from London by the time of the marriage.

I state that I have come to Hyderabad only to register this complaint as the
marriage was performed as per Hindu rights and traditions at Hyderabad and
also registered at Hyderabad and therefore I request you to register this FIR
and initiate appropriate actions. Additional documents/details will be
submitted in due course of time.

Once again I request you to kindly initiate immediate action in preventing

Mrs. Swarajya Lakshmi Gutta, one of the accused, from leaving India from
Chennai to USA.

As the accused are residing in Chennai and in U.S.A for which a specialized
investigating agency is necessary to bring the culprits to book, therefore, I
request you to take necessary action against the following persons…………”

4. On the basis of the said complaint, the Investigating Officer registered FIR
and examined the witnesses. The statement of L.W.I who is the complainant
herein is reproduction Page: 3510of the complaint. The aggrieved party, wife
of the complainant, is not examined by the Investigating Officer as envisaged
under the provisions of the Code of Criminal Procedure. It is stated in the
charge-sheet that he has contacted the said witness and she confirmed the
contents of the complaint, but he has not recorded any statement by
examining her personally and also the Investigating Agency relied on the
statement forwarded by the said witness attested by a notarized public. This
court is of the view that the said procedure and reliance on the statement is
not legally acceptable. The reading of Section 162 Cr. P.C runs as follows:

Section 162. Statements to police not to be signed: Use of statements in

evidence:—

1) No statement made by any person to a police officer in the course of an

investigation under this Chapter, shall, if reduced to writing, be signed by the
person making it; nor shall any such statement or any record thereof, whether
in a police diary or otherwise, or any part of such statement or record, be used
for an purpose, save as hereinafter provided, at any inquiry or trial in respect
of any offence under investigation at the time when such statement was
made;

Provided that when any witness is called for the prosecution in such inquiry
or trial whose statement has been reduced into writing as aforesaid, any part
of his statement, if duly proved, may be used by the accused, and with the
permission of the Court, by the prosecution, to contradict such witness in the
manner provided by section 145 of the Indian Evidence Act, 1872 (1 of
1872); and when any part of such statement is so used, any part thereof may
also be used in the reexamination of such witness, but for the purpose only of
explaining any matter referred to in his cross-examination.

2) Nothing in this section shall be deemed to apply to any statement falling

within the provisions of clause (1) of Section 32 of the Indian Evidence
Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.

5. It is the admitted case of the respondent that she has forwarded a statement
attested by a notarized public signed by her. The section specifically prevent
the officer from obtaining signature in the statements recorded under Section
162 Cr. P.C and also the Section 161 clearly speaks about the manner with
which the investigation be conducted and the statements to be recorded.

Section 161 Cr. P.C also runs as follows:

“Examination of witnesses by police-1) Any Police Officer making an

investigation under this Chapter, or any police officer not below such rank as
the State Government may, by general or special order, prescribe in this
behalf, acting on the requisition of such officer, may examine orally any
person supposed to be acquainted with the facts and circumstances of the
case.

2) Such person shall be bound to answer truly all questions relating to such
case put to him by such officer, other than questions the answers to which
would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.
3) The police officer may reduce into writing any statement made to him in
the course of an examination under this section; and if he does so, he shall
make a separate and true record of the statement of each such person whose
statement he records.

6. In which it is clearly stated that the Police Officer has to question the
victim girl, witnesses and contradict the witnesses and record the same. In the
present case, the statement of the victim girl is concerned, the investigation
officer stated in the charge-sheet that he has contacted her and she confirmed
the contents of the complaint given by the complainant. This Court is of the
view that the Investigating Officer has to confirm the allegations mentioned
in the complaint with the aggrieved person. This Court is of the view that the
Officer, who is investigating the case, should record the statement as per the
abovesaid provisions. The first duty of the Investigating Officer is to find out
the probability and truthfulness of her complaint unless otherwise the
complainant's version appraised by the Investigating Officer with the facts
and circumstances of the case. Merely recording the statement as stated by
the witnesses cannot be called as investigation. Page: 3511Investigation
includes examination of the witnesses, confronting the witnesses on the basis
of materials collected by the Investigating Officer and also the version of the
person who is aggrieved because of the said complaint. Mere reproduction of
the complaint without proper examination cannot be called as statement
recorded during investigation.
7. The entire reading of the complaint and charge-sheet, it is evident that the
entire occurrence took place in the United States of America. The allegations
contained in the complaint also regarding the occurrences in the United States
of America. Of course, the offence committed by a person, which is
punishable under the law in India, he can be prosecuted for the offence
committed abroad. But, at the same time Section 188 of Cr.P.C mandates
that no court shall take cognizance except the previous sanction by the
Central Government when an offence is committed outside the jurisdiction of
India.

Section 188 of Cr. P.C reads as follows:

Offence committed outside India:

When an offence is committed outside India—

a) by a citizen of India, whether on the high seas or elsewhere; or

b) by a person not being such citizen, on any ship or aircraft registered in

India,

he may be dealt with in respect of such offence as if it had been committed at

any place within India at which he may be found:

Provided that notwithstanding anything in any of the preceding sections of

this Chapter, no such offence shall be inquired into or tried in India except
with the previous sanction of the Central Government.
8. In such a case, the cognizance taken by the learned Magistrate also bad in
law. Further, on perusal of the complaint and charge-sheet, the main
allegations are as follows:

1. The complainant's daughter was humiliated in front of others in U.S.A;

2. To the surprise of the complainant's daughter, she saw a credit card which
is in the house of the accused for which she has not applied;

3. The husband insisted her to enhance the credit limit for the credit card
which was in her possession;

4. The petitioner in Crl.P No. 2976 of 2009 informed as he is unmarried one

and tried to have another marriage and also he is subscribing in the
matrimonial web site even after the marriage; and

9. In the last portion of the complaint, it is stated that the petitioner in Crl.P
No. 2976 of 2009 tried to marry another lady and to celebrate the said
marriage, he tried to go to abroad.

10. And in the said complaint, here and there some references were made
regarding the demand of dowry. It is well settled that mere demand of dowry
will not attract an offence under Section 498-A IPC.

Section 498-A IPC runs as follows:

Husband or relative of husband of a woman subjecting her to cruelty:

Whoever, being 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.

Explanation: For the purposes of this section, “cruelty” means—(a) any

wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman or

(b) harassment of the woman where such harassment is with a view to

coercing her or any person related to her to meet any unlawful demand for
any property or valuable security or is on account of failure by her or any
person related to her to meet such demand.

11. There are two elements in the above said section which includes the
explanation, which clearly indicates ‘cruelty’ means by way of harassment
driving a woman to commit suicide or to suffer with injury, second element
of the said section indicates that the harassment should be in connection with
demand of dowry.

12. On the entire reading of the complaint, the abovesaid ingredients are
totally not attracted, Page: 3512more particularly, the petitioner in Crl.P No.
4921 of 2010 against the mother-in-law of the victim girl.

13. Further the learned counsel for the respondent is not in a position to
inform why the wife of the petitioner has not lodged the complaint and what
prevented her from lodging a complaint. Even based on the present
complaint, which is in the nature of hearsay, this Court is of the view that no
offence made out as alleged in the charge-sheet.

14. Hence, the proceedings against the petitioners in C.C No. 507 of 2006 on
the file of the XIII Additional Chief Metropolitan Magistrate, Hyderabad, are
hereby quashed. With the above observation, both the Criminal Petitions are
allowed. The miscellaneous petitions, if any, filed along with the criminal
petitions shall stand closed.

15. Petitions allowed.

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