HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1076 OF 2010 DATE:19.07.2010 Between: Madiki Nagarathnam …… Petitioner. And: The State, rep. by Public Prosecutor, High Court of AP., Hyderabad and another. …..Respondents. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1076 OF 2010 ORDER: 1. This revision petition is filed by P.W.1 who is mother of the defacto-complainant against order dated 15.06.2009 passed by the I Additional Chief Metropolitan Magistrate, Visakhapatnam in C.C.No.2592 of 2008 by which the lower court discharged the accused/2nd respondent from offence punishable under Section 493 IPC. During trial in the lower court, P.Ws.1 and 2 were examined and Ex.P-1 was marked on behalf of the complainant. Whereas Exs.D-1 to D-5 were marked on behalf of the accused. 2. One Harathi (since dead) filed private complaint in the lower court against the accused alleging offences punishable under Sections 493, 417 and 420 IPC. After recording sworn statement of the complainant, the lower court took cognizance of the case for offence under Section 493 IPC only. Subsequently, the complainant Harathi died. Therefore, during trial before charge, the complainant’s mother was examined as P.W.1 and the complainant’s brother was examined as P.W.2. It is contended by the petitioner’s counsel that after examination of P.Ws.1 and 2 and their full-fledged cross examination, the lower court should not have discharged the accused without deciding the case on merits. The question of deciding of the case on merits arises only after the trial court famed charge against the accused. For framing charge against the accused, the lower court should find at least prima facie evidence for the offence which is alleged against the accused. The lower court strictly adopted the procedure prescribed for trial of warrant cases by Magistrates contained in Chapter-XIX and Part-B therein relating to cases instituted otherwise than on police report. The lower court scrupulously followed the procedure under Sections 244 and 245 Cr.P.C before passing the impugned order. Section 244 contemplates leading of evidence by the prosecution before framing charge. When the prosecution leads evidence, then the accused has got every right of cross-examining the witnesses produced. In case the accused is not discharged under Section 245 Cr.P.C, then the accused has got second opportunity to recall the said witness and further cross-examine those witnesses after charge is framed against the accused. Therefore, contention of the petitioner’s counsel that the accused should not have been discharged by the lower court after recording examination-in-chief and cross-examination of P.Ws.1 and 2, is not tenable in law. This Court finds the lower court adopted proper procedure before passing the impugned order. 3. It is contended by the petitioner’s counsel that even on merits, there is case for charging the accused and not for discharging the accused. The fact that the accused happened to be working as Junior Civil Judge in the Andhra Pradesh Judiciary cannot have any significance in this criminal case. 4. In order to attract offence punishable under Section 493 IPC, the following facts/ingredients have to be established: a) that the woman must not be lawfully married to the accused. b) that the accused had deceived that woman c) that the said deceit was making the woman to believe that she is lawfully married to the accused d) that the accused had made that woman to cohabit or to have sexual intercourse with him and e) that the said cohabitation or participation in sexual intercourse with the accused was in the belief that she was lawfully married to the accused. It has to be seen whether prima facie the said ingredients were made in the present case. No doubt, as per Compact Disc (CD) produced in the lower court and which was witnessed by the lower court, there was in fact sexual intercourse between the accused and the deceased Harathi. It was deliberately video graphed by the deceased complainant herself with her cell phone with the help of a third person when she was participating in sexual intercourse with the accused. The deceased complainant resorted to this act with a view to secure evidence of her cohabitation with the accused. 5. As per allegations in the complaint, the accused who is distantly related to her, used to come to her house on the plea that he was loving her and would marry her and that believing words of the accused, the complainant fell in love with him. It is alleged that on 04.11.2007, the accused married the complainant by tying ‘tali’ in Railway Quarters at Visakhapatnam where another Magistrate friend of the accused working at Palasa was staying, in the presence of Holy Bible and made the complainant to believe him that he married the complainant; and that the accused made the complainant to believe as universal truth that they got married in Holy Witness of Lord Jesus and Holy Bible. It appears that the parties are Christian by religion. According to the complainant, the accused trapped her by his deceitful act and began cohabiting with him from then onwards. It is alleged that when the complainant pressurised the accused to inform their marriage to his parents, the accused postponed the same on the pretext of his mother’s ill health and that thereafter the complainant understood intention of the accused to marry another girl with huge dowry and intention of the accused was to sexually exploit her. It is further alleged that when the complainant brought the facts to the notice of parents of the accused, they beat her and took her along with her parents to Bobbili where the accused was working on 16.04.2008 and that the accused requested them not to raise any dispute till he informs the facts to all. It is further alleged that on 20.04.2008 the accused telephoned to parents of the complainant expressing his intention to marry the complainant and requesting them to attend for the marriage ceremony and that on 21.04.2008 the accused took the complainant and her parents to a house of his relation at S.L.Towers in Visakhapatnam where he again married the complainant in the presence of her parents and his friends. It is alleged that the accused along with his parents was distributing his marriage invitation cards to his friends and relations, the complainant after coming to know about the same, questioned the accused about he going to marry another girl, the accused asked her to remain as his kept mistress in addition to his proposed wife. Thereupon the complainant filed the complaint in the lower court, with the above allegations. 6. By the time the case was taken up for trial before charge, the complainant died. There is no dispute that the accused is related to Harathi as brother-in-law. Harathi was not a virgin girl by the time she came into contact with the accused. Previously Harathi married one Vudatha Atchuta Kumar, lived with him for some time and subsequently divorced him. It is only thereafter she developed contact with the accused. The accused was unmarried. As per allegations in the complaint, the accused married Harathi on 04.11.2007 in Railway Quarters at Visakhapatnam where his friend working as Magistrate at Palasa was residing. It is alleged that the accused tied ‘tali’ around neck of Harathi and took oath on Bible. For the alleged performance of marriage on 04.11.2007, there are no witnesses. Again on 21.04.2008 the accused is stated to have married Harathi in S.L.Towers at Visakhapatnam in the presence of parents of Harathi and friends. In Ex.D-4 sworn statement given by Harathi in the lower court, she stated about marriage held on 07.04.2007 at Railway quarters, Visakhapatnam in the house of Magistrate of Palasa. The date of marriage 07.04.2007 contained in Ex.D-4 sworn statement does not tally with the date 04.11.2007 mentioned in the complaint. In Ex.D-4 Harathi did not speak a word about the alleged marriage in S.L. Towers, Visakhapatnam on 21.04.2008 in the presence of her parents and friends. In the absence of Harathi speaking about the alleged performance of marriage for second time at S.L. Towers, in her sworn statement Ex.D-4, evidence of PWs.1 and 2 about the same cannot assume any importance. 7. Assuming for a moment for the sake of argument that the alleged marriages between the accused and Harathi on 04.11.2007 and 21.04.2008 or 07.04.2007 are true, even then the prosecution could not make out any offence under Section 493 IPC. P.W.1 in cross- examination at one point of time says that marriage of her daughter at railway quarters and marriage performed at Assent Towers (Colloquial pronouncement of S.L. Towers) are not real marriages according to custom and that she and her daughter Harathi knew that the said two marriages are not marriages as per law. At another point in cross- examination, P.W.1 deposed that Harathi was married to the accused according to the Christian custom. When there was marriage between the accused and Harathi, they indulging in sexual intercourse is no sin. In fact, Harathi married her first divorced husband Vudatha Atchutha Kumar in the same manner in which she is alleged to have married the accused either at Railway quarters or S.L. Towers. P.W.2 in cross- examination deposed that his sister Harathi married Vudatha Atchutha Kumar who tied yellow thread with turmeric ‘kommu’ in the year 2001. That is the reason why Harathi might have preferred the same type of marriage with the accused also. 8. In order to establish offence punishable under Section 493 IPC, the prosecution/complainant has to prove element of deceit on the part of the accused in indulging in sexual intercourse with the victim. Even according to the P.Ws.1 and 2, the accused tied ‘tali’ with yellow thread in railway quarters and took oath on Bible; and again tied ‘tali’ with yellow thread in S.L. Towers. On the first occasion though there were no witnesses, on the second occasion there were parents of Harathi and also friends. Thus, there is absolutely no element of deceit in the affair which took place between the accused and Harathi. If anybody calls the affair between them as love affair, it is nothing but misnomer; and I have absolutely no doubt in my mind that it is nothing but a lust affair or sex affair in which both the accused and Harathi were deeply involved. 9. Trouble arose between the accused and Harathi when the parents of the accused are stated to have arranged marriage of the accused with another girl allegedly. On total reading of material on record, this Court finds that there was no element of deceit on the part of the accused; and on the other hand, element of deceit if any was on the part of Harathi who got her sexual intercourse with the accused secretly video graphed with her cell phone without knowledge of the accused and taking help of a third person. This Court is of the opinion that the lower court rightly discharged the accused for the offence under Section 493 IPC because no ingredients of that offence except sexual intercourse are made out. The impugned order passed by the lower court does not suffer from any infirmity. 10. In the result, the criminal revision petition is dismissed. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:19.07.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.1076 OF 2010 Date:19.07.2010 Gk.