Sec.494 A.P. Amendment of I.P.C. and sec.198 Cr.P.C. = WHETHER POLICE CAN TAKE COGNIZANCE UNDER SEC.494 AND ON CHARGE SHEET WHETHER COURT CAN TAKE COGNIZANCE UNDER SEC.494 WHEN COMPLAINT NOT PRESENTED BY WIFE = As per the amendment of the schedule, Section 494 of IPC is made cognizable and the police are empowered to investigate the case.- Section 198(1) proviso (c ) of Cr.P.C bars taking cognizance of the case relating to offences punishable under Sections 494 and 495 I.P.C. Proviso (c ) to Section 198(1) of Cr.P.C as it is relevant for the purpose of this case reads as follows:- "Provided that .......... (c ) where the person aggrieved by an offence punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister (or with the leave of the Court, by any other person related to her by blood, marriage or adoption)".= though offence punishable under Section 494 I.P.C as amended in the state of Andhra Pradesh is made cognizable, there is no corresponding amendment to Section 198 Cr.P.C., and that though investigating agency is entitled to investigate, the Magistrate is precluded from taking cognizance of the said offence on report filed by the police.

PUBLISHED IN http://judis.nic.in/judis_andhra/filename=6839

 

supreme court overruled the division bench decision in the above criminal appeal 
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              
Criminal Petition No.2426 of 2005

26-02-2010

A. Subsh Babu

State of A.P., rep. by Public Prosecutor and another

Counsel for the Petitioner : Sri A. Hanumantha Reddy

Counsel for the 1st Respondent:  Public Prosecutor
Counsel for the 2nd respondent: Sri K. Surender

:ORDER:

        This petition is filed by the sole accused under Section 482 Cr.P.C., for
quashing proceedings in C.C.No.820 of 1996 on the file of Judicial Magistrate of
the First Class, (West and South), Ranga Reddy District relating to offences
punishable under Sections 494, 495, 420, 417, 498A I.P.C.

        Previously, the petitioner filed Criminal PetitionNo.812 of 2001 in this
Court for the self same relief and it was withdrawn by the petitioner and the
petition was accordingly dismissed by order dated 09.04.2005 by which the
petitioner was given liberty to file a fresh petition if he is so advised.
After few days thereof, the petitioner came up with the present petition on
09.05.2005 for quashing proceedings in the Criminal case.  It is not known for
what purpose it was previously withdrawn and on what new grounds the present
petition is filed.

        It is alleged that the accused cheated the victim woman and her parents by
stating that his first wife died after delivering two of his children who are
studying by staying in a hostel, even though his first wife by name Sarada is
very much alive and living with him at Avanthinagar near Erragadda, and that by
making the said false  and fraudulent representation, the accused married the
victim woman  at Yadagirigutta on 09.10.1994, and that  the accused collected
total amount of Rs.28,000/- from father of the victim woman towards hand loan on
the false plea that he was constructing  his own house at Borabanda; and that
the accused further  demanded Rs.20,000/- from him and threatened the victim and
her father  with dire consequences by showing his licensed revolver  and that
several times the accused tried to snatch away gold ornaments  from the victim's
person by threatening her with dire consequences and that  the accused  demanded
to part with her gold ornaments together with cash of Rs.15,000/- from her
parents and that when his additional demand was not fulfilled, the accused
threatened the victim and her father  by saying that he would wipe out evidence
of his marriage with the victim at Yadagirigutta in a Choultry by destroying all
photographs and negatives and would walk out of their house.  The petitioner/
accused was then working as Sub Inspector of Police in Intelligence Wing of the
Police Department at Hyderabad.  Truth or otherwise of all allegations in the
charge sheet as well as in First Information Report have to be adjudged by the
trial Court after both the parties leading their oral and documentary evidence
during trial before the lower court.

        It is contended by the petitioner's counsel that
Section 198(1) proviso (c
) of Cr.P.C bars taking cognizance of the case relating to offences punishable
under Sections 494 and 495 I.P.C.  Proviso (c ) to Section 198(1) of Cr.P.C as
it is relevant for the purpose of this case reads as follows:-

"Provided that .......... (c ) where the person aggrieved by an offence
punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of
1860) is the wife, complaint may be made on her behalf by her father, mother,
brother, sister, son or daughter or by her father's or mother's brother or
sister (or with the leave of the Court, by any other person related to her by
blood, marriage or adoption)".

        But, Division Bench of this Court in Mavuri Rani Veerabhadramma v. State
of A.P,1  
took note of the fact that though offence punishable under Section 494 I.P.C as amended in the state of Andhra Pradesh is made cognizable, there is no corresponding amendment to Section 198 Cr.P.C., and that though investigating
agency is entitled to investigate, the Magistrate  is precluded from taking cognizance  of the said offence on report filed by the police.
The Division
Bench answered the reference with the following conclusions:-

1. If a complaint is filed under Section 200 of Cr.P.C., for the offence under
Section 494 of I.P.C. before a Magistrate, he may take cognizance of the offence
or postpone the issue of process either by making enquiry  into the case by
himself or direct an investigation to be made by the Police Officer or other
person as he thinks fit for the purpose of deciding whether or not there is
sufficient ground to proceed.  If the complaint is referred to the police for
investigation and if the police files either the charge-sheet showing that there
is prima facie  material to proceed against the accused or that there is no case
to take cognizance of the offence, the Magistrate is empowered to take
cognizance of the offence irrespective of the result of the investigation and it
amounts to sufficient compliance of Section 198 of Cr.P.C.

2. The police may also receive a complaint for the offence under Section 494 of
I.P.C and register a crime.  As per the amendment of the schedule, Section 494
of IPC is made cognizable and the police are empowered to investigate the case.
But the Magistrate is precluded from taking cognizance of the offence under
Section 198 of Cr.P.C on the charge-sheet filed by the police, when a complaint
is not presented before the Magistrate for taking cognizance of the offence.

3. If a complaint for the offence under Section 494 of IPC is lodged along with
other cognizable offences before the police and if the police files a charge-
sheet, the Court can take cognizance of the offence under Section 494 of IPC
also along with other cognizable offences by virtue of Section 155(4) of Cr.P.C.

        It is contended that having regard to conclusion No.3 arrived at by the
Division Bench, filing of charge sheet by the police and taking cognizance
thereof for offence punishable under Sections 494 and 495 I.P.C is in accordance
with law.  On the other hand, it is contended by the petitioner's counsel that
Mavuri Rani Veerabhadramma (supra) is in conflict with earlier Bench Decision of
this Court in S. Radhika Sameena v.  Station House Officer,2 and that this
decision was not referred in  Mavuri Rani Veerabhadramma (1 supra).  The
question decided by the Division Bench in S. Radhika Sameena (2 supra) is
whether a person who married his first wife under the Special Marriage Act, can
marry a second wife under Muslim, Law after taking conversion as Muslim
attracting liability for offences under Sections 494 and 495 I.P.C.  It was
answered positively by the Division Bench.  There is no contention raised  much
less decided therein as to whether those offences can be taken cognizance by the
Magistrate on report filed by the Police Officer having regard to Andhra Pradesh
state amendment making offence punishable  under Section 494 I.P.C cognizable
and having regard to provision contained under Section 155(2)  Cr.P.C.  The only
discussion in S. Radhika Sameena (2 supra) on Section 198 Cr.P.C is as follows:-

"We have considered the aspect whether straightway we should direct the Mahila
Court (XXII Metropolitan Magistrate's Court, Hyderabad), whose jurisdiction
covers  matrimonial offences, to take cognizance of the offence under Section
494 IPC on the basis of the reply affidavit filed by the petitioner.  But the
law, as we comprehend it to be, does not seem to permit such a course of action
in view of the specific language of Section 198(1) of the Code of Criminal
Procedure under which, the complaint to the Court, competent to take cognizance
of offences punishable under Chapter XX of the Indian Penal Code of which
Section 494 constitutes a part - should only be by " some person aggrieved by
the offence" and the exceptions to this incorporated in proviso (c) to sub-
section (1) exclude the complaint by anyone else including a court, even a
higher Court.  At any rte, there appears to be no judicial precedent in this
regard.  We, therefore, hold that it is open to the petitioner to file a
complaint before the Mahila Court (XXII Metropolitan Magistrate, Hyderabad."

In that view of the matter, decision of the Division Bench in Mavuri Rani
Veerabhadramma (1 supra) is holding the field with regard to competency  of the
police to file charge sheet and competency of the Magistrate to take cognizance
of offences punishable under Sections 494 and 495 I.P.C on report filed by the
police.  Therefore, I find that taking cognizance of the present case by the
court below for offences punishable under Sections 494 and 495 I.P.C, is in
accordance with law.  In view of decision of the Division Bench in Mavuri Rani
Veerabhadramma         (1 supra), previous decision  rendered by Single Judge of
this Court in                  D. Vijayalakshmi v. D. Sanjeeva Reddy, 3 is no
longer good law.

        In V. Revathi v. Union of India,4 the Supreme Court while holding that
Section 198(2) Cr.P.C is not discriminatory simply because husband alone was
given right to prosecute  the adulterer  and not wife of the adulterer,  the
Supreme Court  further held that philosophy underlying the scheme of Section
198(2) Cr.P.C and Section 497 I.P.C appears to be promotion of social good will
between the husband and the wife by permitting them to 'make up' or 'break up'
the matrimonial tie rather than dragging each other to criminal court.

        Decision rendered by the Supreme Court in G. Narasimhan v. T.V.
Chokkappa,5  on Section 198 Cr.P.C in a defamation case, may not be relevant
herein.  In any event, it was a decision rendered by the Supreme Court prior to
the state amendment on Section 494 I.P.C. in the year 1992 making the same as
cognizable.

        In Manisha Das (DR) v. State of U.P,6  the Supreme Court quashed the
complaint filed by father of second wife allegedly on her behalf but against her
express desire stated in her sworn statement in view of the proviso (c ) to
Section  198 (1) Cr.P.C on the ground that she was a major and that she married
on her own free will and she was living happily and peacefully thereafter and
that initiation of prosecution by her father in such circumstances  was
improper.  This decision was rendered having regard to special facts prevailing
in that case.  There was no reference to the A.P. state amendment of the year
1992 in that decision.
     
        Secondly, it is contended by the petitioner's counsel that aggrieved party
i.e., for offences punishable under Sections 494 and 495 I.P.C ie., Bigamy is
the first wife and not the second wife/defacto-complainant who is the second
wife.  Reliance was placed on Smt Yamunabai Anantrao Adhav v. Anantrao Shivram
Adhav,7 of the Supreme Court and In re P. Kondiah,8 of the Madras High Court on
this aspect.  In the former decision, the Supreme Court was considering right of
the second wife for maintenance under Section 125 Cr.P.C when the first wife of
the husband was living.  It has absolutely no relevance herein.  In the latter
decision of the Madras High Court, it was held that marriage of the accused with
the second  wife when first wife is living and when marriage with the first wife
is subsisting, is ab initio void  and that if there is no legal and valid
marriage, she cannot be said to be the wife of the accused and that if there is
no legal and valid marriage, she cannot be said to be the wife of the accused
and hence cannot have any grievance and cannot be a person within the scope of
Section 198 Cr.P.C for the purpose of filing complaint under Section 494 I.P.C.
If it is a case of offence punishable under Section 494 I.P.C alone, then there
is every possibility of applying ratio of the Madras decision. But, in the
present case not only Section 494 IPC but also Section 495 IPC is invoked by the
prosecution.  Section 495 I.P.C deals with a case where offence of Bigamy is
committed having concealed from the person and whom the subsequent marriage is
contracted, the fact of former marriage.  Therefore, Section 495 IPC forbids
contracting second marriage by suppression of the first marriage.  In such a
case, the 2nd wife alone is the aggrieved party.  Therefore, it cannot be said
that the second wife cannot be termed as aggrieved party for the purpose of
Section 198(1) Cr.P.C for maintaining a report/complaint for offences punishable
under Sections 494 and 495 I.P.C.  In any event, In re P. Kondaiah (8 supra) has
no relevance now in the state of Andhra Pradesh,   having regard to Mavuri Rani
Veerabhadramma (1 supra)

        It is thirdly contended by the petitioner's counsel that marriage of the
accused with the victim in this case who is stated to be second wife of the
accused, is void ab initio, she cannot claim herself to be a legally wedded wife
who can invoke offence punishable under Section 498A IPC.
 In Shivcharan Lal
Verma v. State of M.P,9  it was held by the Supreme Court that when marriage of
the accused with the deceased was during subsistence of valid marriage between
the accused and his first wife, was null and void, conviction of the accused for
offence punishable under Section 498A IPC for harassing the deceased who
committed suicide is not sustainable in law.

        In  Reema Aggarwal v. Anupam,10 the Supreme Court observed:-

"The question as to who would be covered by the expression 'husband' for
attracting Section 498A does present problems.  Etymologically, in terms of the
definition of "husband" and "marriage" as given in the various Law Lexicons and
dictionaries - the existence of a valid marriage may appear to be a sine quo non
for applying a penal provision."

        Admittedly, the victim in this case is second wife of the petitioner who
is said to have married her by suppressing the fact of his first wife living.

Therefore, prima facie marriage between the petitioner and the second respondent
is void and therefore, it cannot be said that the alleged harassment or cruelty
meted out by the petitioner towards her attracts penal provision under Section
498A I.P.C.

        It is lastly contended by the petitioner's counsel that there is no
property involved in this case and that therefore, penal provisions under
Sections 417 and 420 IPC have no application herein.
The said contention does
not stand to scrutiny because definition of cheating contained under Section 415
IPC is attracted in case of damage or harm to the person in body, mind,
reputation or property.

        Thus, the petitioner can get limited relief in this petition to the extent
of offence punishable under Section 498A IPC only.

        In the result, the petition is partly allowed quashing proceedings in
C.C.No.820 of 1996 on the file of Judicial Magistrate of the First Class (West
and South), Ranga Reddy District in so far as offence punishable under Section
498A IPC alone.  
The petition is partly dismissed in respect of other offences
punishable under Sections 494, 495, 417 and 420 IPC. 

?1 2007(1) A.L.D 13 (AP)
2 1997 Criminal Law Journal 1655
3 2000(2) A.L.D (Cri) 200 A.P
4 AIR 1988 Supreme Court 835
5 AIR 1972 Supreme Court 2609
6 2006(3) Supreme Court Cases (Cri) 113
7 AIR 1988 Supreme Court 644
8 A.I.R 1954 Madras 947
9 2002(3) Supreme 168
10 2004(1) Supreme 355

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