Crl. P. Nos.2802 of 2005,Crl. P. Nos.3837 of 2005

23rd September, 2005

Petitioner Counsel: K. VENUMADHAV,D. KRISHNA REDDY
Respondent Counsel: C. MOHAN PRAKASH

Cases Cited:
D. Vijayalakshmi Vs. D. Sanjeeva Reddy, 2000(2) ALD (Cri.) 200 (AP) [Para PARA6]
Mamidala Ramesh Vs. State of A.P., 2003(1) ALD (Cri.) 387 (AP) [Para PARA6]
Aramati Rama Devi Vs. Aramati Reddappa Reddi, 2005(2) ALT (Cri.) 155 (AP) [Para PARA6]
State of Orissa Vs. Sharat Chandra Sahu, 1997 ALL MR (Cri) 180 (S.C.) =AIR 1997 SC 1 [Para 11,17]

JUDGMENT

-To quash the proceedings pending against the petitioners for the offences punishable under Sections 498-A and 494, IPC, they have filed these two criminal petitions.

2. Petitioners in Cri. P No.2802 of 2005 are the Accused Nos.1 to 5 in C.C.No.34 of 2003 on the file of the Judicial First Class Magistrate, Metpally. The second respondent is the wife of A.1. On her complaint made before the Police Station, Metpally, Karimnagar District, F.I.R.No.219 of 2002 dated 17-12-2002 was registered for the offence punishable under Sections 498-A and 494, IPC read with Section 109, IPC. After the investigation charge-sheet has been filed, which is numbered as C.C.No.34 of 2003 on the file of the Judicial First Class Magistrate, Metpally, for the said offences. The facts as per the charge-sheet are that after nine years of marriage of A.1 with the second respondent, he again married A2 on 20-11-2002 with the abetment of A.2 to A.5 and without the consent of the second respondent. Thereafter, A1 started harassing the second respondent physically and mentally on the instigation of A2 and threatened her to leave the house on the instigation of A3; otherwise he would kill her by pouring kerosene, while threatening so he forcibly necked her out of the house.

3. Petitioner in Crl.P.No.3837 of 2005 is the husband of the de facto-complainant/ second respondent herein and accused in C.C. No.190 of 2004. On a complaint given by the second respondent before the Station House Officer, Raikode Mandal, Medak District, F.I.R. No.8 of 2003 dated 5-2-2003 was registered against the accused for the offence under Sections 498-A and 494, IPC. After the investigation, the charge-sheet was filed on 31-3-2004, which is numbered as C.C. No.190 of 2004, on the file of the Judicial First Class Magistrate, Zahirabad, Medak District. As per the contentions of the charge-sheet the accused married the second respondent in a temple and they are blessed with a son and a daughter - aged about 7 and 4 years respectively. Later the accused denied the paternity of the children and got married for the second time with the daughter of L.W.2. The DNA test conducted on the accused, second respondent and the two children to establish the paternity of the children disclosed that the accused is the biological father of the said two children through the second respondent. It is further stated that the accused on the pretext that the second respondent belonged to lower caste i.e. S.C. Mala married A.2.

4. Heard the learned Counsel for the petitioners, learned Additional Public Prosecutor and the learned Counsel appearing for the second respondent.

5. Arguments have been advanced on behalf of the petitioners stating that marrying again during the life time of husband or wife is punishable under Section 494 of Indian Penal Code, 1860 (for short 'IPC'), which falls under Chapter XX of IPC, and, such husband or wife, shall be punished with imprisonment of either description for a term which may extend to 7 years and also with fine, but under Section 198(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') no Court shall take cognizance of an offence punishable under Chapter XX of IPC except upon a complaint made by some person aggrieved by the offence. Under Section 198(1)(c) of the Code where the person aggrieved by an offence punishable under Sections 494 and 495, IPC 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 with the leave of the Court, by any other person related to her by blood, marriage or adoption. It is stated that there is bar for taking cognizance by the Magistrate on a police report as the Court is competent to take cognizance of a complaint made by some person aggrieved by the offence. In the instant cases, on the reports made by the second respondents about the alleged second marriage of their husbands and the alleged harassment meted out to them, the police themselves investigated and filed charge-sheets not only for the offence under Section 498-A, IPC but also for the offence under Section 494, IPC. Thus, the Court is not empowered to take cognizance insofar as the offence under Section 494, IPC is concerned and there are no allegations to take cognizance even for the offence under Section 498-A, IPC.

6. It is further stated that this Court in the cases of D. Vijayalakshmi Vs. D. Sanjeeva Reddy, 2000(2) ALD (Cri.) 200 (AP); Mamidala Ramesh Vs. State of A.P., 2003(1) ALD (Cri.) 387 (AP) and Aramati Rama Devi Vs. Aramati Reddappa Reddi, 2005(2) ALT (Cri.) 155 (AP), held that though the offences under Sections 498-A and 494, IPC are cognizable and non-bailable in the State of Andhra Pradesh there is a limitation for the Court to take cognizance under Section 198 of the Code for taking cognizance of a police report for the offence under Section 494, IPC. The Court is precluded from taking cognizance of an offence under Section 494, IPC in view of the provisions of Section 198(1) of the Code. Further, the Section 198 of the Code being a Legislation of the Parliament would prevail in the event of any inconsistency between the State law and the Central law since both the subjects pertain to Concurrent List. Therefore, the Magistrate is not empowered to take cognizance of the offence under Section 494, IPC based on a police report or charge-sheet.

7. Chapter XX of IPC deals with offences relating to marriage. Under Section 494, IPC, whoever having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the lifetime of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

8. In the instant cases the allegations are that the husbands in both the cases, while their wives are living, have married for the second time.

9. The said offence under Section 494, IPC insofar as State of Andhra Pradesh is concerned the punishment to the said offence is seven years imprisonment and fine, and there is an amendment to the effect that it is cognizable by the Judicial First Class Magistrate and non-bailable and also non-compoundable. The said amendment was introduced by Andhra Pradesh Act 3 of 1992 with effect from 15-2-1992. It has also got the assent of the President of India.

10. There is no dispute that Section 498-A, IPC which falls under Chapter-XXA of IPC is also cognizable, non-bailable and the punishment may be extended upto three years and fine triable by the Magistrate of First Class.

11. Contrary to the aforesaid three judgments of learned Single Judges of this Court the learned Counsel for the respondents have relied on a judgment of the Supreme Court in the case of State of Orissa Vs. Sharat Chandra Sahu, AIR 1997 SC 1 : 1997 ALL MR (Cri) 180 (S.C.), which has not been considered in any of the said judgments by this Court. Before considering the judgment of the Supreme Court it is just and proper to refer to certain provisions of the Code.

12. As per Section 2(b) of the Code "charge" includes any head of charge when the charge contains more heads that one; Under Section 2(c) of the Code "cognizable offence" means an offence for which and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; Under Section 2(d) of the Code "complaint" means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Therefore, a police report is different and distinct from that of a complaint. Under Section 2(h) of the Code "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; Under Section 2(1) of the Code "non-cognizable offence" means an offence for which and 'non-cognizable case' means a case in which, a police officer, has no authority to arrest without warrant; Under Section 2(n) of the Code "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871; Under Section 2(r) of the Code "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173 of the Code.

13. Under Schedule I of the Code, the offence of marrying again during the lifetime of the husband or wife living is punishable under Section 494, IPC with imprisonment for seven years and fine, which is cognizable and non-bailable in the State of Andhra Pradesh vide A.P. Act 3 of 1992 and the punishment for subjecting a married woman to cruelty under Section 498-A of IPC is imprisonment for three years and fine, which is cognizable and non-bailable. Thus, both the aforesaid sections are cognizable and non-bailable and triable by Magistrate of First Class.

14. Under Section 154 of the Code every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing and entered in a book to be kept by such officer and shall be investigated. Under Section 155(1) of the Cr.P.C. when an information is given about a non-cognizable offence, it shall be entered into the book and refer the said information to the Magistrate. But no police officer shall investigate a non-cognizable offence without the order of a Magistrate under Section 155(2) of the Code. But under Section 155(4) of the Cr.P.C. where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

15. Under Section 156 of the Code the police officers are empowered to investigate any cognizable case without the order of the Magistrate. But if the case relates to cognizable as well as non-cognizable offence, the non-cognizable case shall be treated as cognizable case and shall be investigated by the police under Section 156(1) of the Code. By virtue of Section 154(4) of the Code non-cognizable case if committed along with cognizable case, the non-cognizable case also shall be deemed to be a cognizable case and thus, the police are entitled to investigate and file a report under Section 173(2) of the Code on completion of the investigation.

16. Thus, I am of the opinion that the bar contained under Section 198(1) of the Code has no application for the offence committed under Section 494 of Chapter XX of IPC if the said offence is coupled with other cognizable offence where the police are empowered to investigate and file their report/charge-sheet. However, insofar as the offence under Section 494, IPC in the State of Andhra Pradesh is concerned, it is a cognizable offence and even if the offence is committed under Section 494, IPC alone upon a report of such facts by the police, the Magistrate is empowered to take cognizance under Section 190(1)(b) of the Code. Under Section 190(1)(b) of the Code the Magistrate of First Class is empowered to take cognizance of the offence in respect of any cognizable case upon a police report of such facts. Therefore, a legal fiction has been created by reason of making the offence under Section 494, IPC as a cognizable offence and if that be so, the police officers are entitled to investigate the cognizable case under Section 156 of the Code and on completing such investigation the police is empowered to file a report under Section 173(2) of the Code and on filing of such report the Magistrate is empowered to take cognizance under Section 190(1)(b) of the Code. The fiction has been created by reason of Section 198(1) of the Code prohibiting the Court to take cognizance except on a complaint made by the aggrieved person for the offence under Section 494, IPC; when the offence under Section 494, IPC is made as a cognizable offence, the Magistrate is empowered to take cognizance for the said offence even though there is a specific prohibition under Section 198(1) of the Code except upon a complaint made by some person aggrieved by the offence, but by reason where a case relates to two or more offences of which one is cognizable under Section 155(4) of the Code the non-cognizable offence also shall be deemed to be a cognizable offence and if that be so, the police is entitled to investigate the offence under Section 494, IPC and Section 498-A, IPC also.

17. Under Section 200 of the Code if any complaint is made before the Magistrate, he is entitled to take cognizance after examining the complainant and other witnesses present and the substance of such examination shall be reduced into writing and signed by the complainant and other witnesses. But if the Magistrate wants to postpone the issue of process after receipt of the complaint, he can postpone the same under Section 202 of the Code and either inquire into the case himself or direct an investigation to be made by the Police Officer or by another person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Therefore, without taking cognizance the police can be directed to investigate on a complaint under Section 202 of the Code and on filing such a report by the police the Magistrate is empowered to take cognizance. But in the instant cases, it is not a complaint made before the Magistrate and therefore, it is stated that there is a legal bar to take cognizance under Section 198(1) of the Code. But this legal fiction has been answered by the Supreme Court in Sharat Chadra Shau's case [1997 ALL MR (Cri) 180 (S.C.)] (supra).

18. In the said case before the apex Court a complaint was made before the Women's Commission alleging that the husband of the complainant contracted a second marriage and had thus committed an offence punishable under Section 494, IPC and also demanded money, which amounted to harassment and subjected her to cruelty constituting the offence punishable under Section 498-A, IPC. The police investigated the case and filed a charge-sheet and on filing the charge-sheet the Court framed charges against the husband under Section 498-A, IPC as well as under Section 494, IPC. Aggrieved by the framing of the charge by the Sub-Divisional Judicial Magistrate, the accused filed a petition under Section 482 of the Code in the High Court of Orissa for quashing the proceedings and the charges framed against him. The High Court by judgment dated 3-5-1995 partly allowed the petition with the findings that since the complainant herself had not personally filed the complaint for the offence under Section 494, IPC, its cognizance could not have been taken by the Magistrate in view of the provisions contained in Section 198(1) of the Code. Consequently, the charge framed by the Magistrate under Section 494, IPC was quashed but the charge under Section 498-A, IPC was maintained.

19. The said judgment was challenged by the State of Orissa by fling a criminal appeal before the Supreme Court. The Honourable Supreme Court held that the judgment of the High Court in quashing the charge under Section 494, IPC is wholly erroneous and is based on complete ignorance of the relevant statutory provisions. The first Schedule appended to the Code indicates that the offence under Section 494, IPC is non-cognizable and bailable. But whereas in these two cases the first Schedule appended to the Code indicates that the offence under Section 494, IPC is cognizable and non-bailable and thus the police were not able to take cognizance of the offence. But in the said case the police are able to take cognizance except upon a complaint filed before the Magistrate, as in the State of Orissa the offence under Section 494, IPC is non-cognizable and bailable. The Supreme Court after referring the relevant portions of Section 198, Section 498-A and Section 155(4), Cr.P.C. held that Section 155(4), Cr.P.C. clearly provides that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. Section 155(4) of the Code creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed. Therefore, the Supreme Court held that the High Court was clearly in error in quashing the charge under Section 494, IPC on the ground that the trial Court could not take cognizance of the offence unless a complaint was filed personally by the wife or any other near relation contemplated by Clause (c) of the Proviso to Section 198(1).

20. The aforesaid decision of the Supreme Court squarely applies to the questions involved in these two criminal petitions as in these two cases also the contention of the petitioner is that the Magistrate is not empowered to take cognizance of the offence under Section 494, IPC on a report filed by the police in view of the statutory provisions under Section 198(1)(c) of the Code.

21. In view of the aforesaid decision of the Supreme Court, which is having binding effect under Article 141 of the Constitution of India, as the law declared by the Supreme Court is binding on all Courts, I have no hesitation to hold that the learned Magistrate is empowered to take cognizance of the offence under Section 494, IPC also along with Section 498-A, IPC. Therefore, the criminal petitions are accordingly dismissed and the trial Court may proceed with the trial on merits of the cases without being influenced by any of the aforesaid observations relating to the merits of the case. However, it is open to the petitioners to file a discharge application before the concerned Court if they are entitled to be discharged on the ground that the charge-sheet filed by the police does not indicate offences under the aforesaid sections.

Petition dismissed.