Andhra HC (Pre-Telangana)
Mamidala Ramesh vs The State, S.H.O., Rep. By Public ... on 17 December, 2002
Equivalent citations: 2003(1)ALD(CRI)387, 2003(1)ALT(CRI)224
ORDER P.S. Narayana, J.
1. Heard Sri Venu Madhav, counsel representing Sri Bari, the learned counsel for the petitioner and also Sri M.A. Khadeer, the learned Additional Public Prosecutor.
2. The facts in brief are as follows:
The petitioner/accused in Crime No. 34/2002 of Choppadandi Police Station filed divorce petition O.P. No. 64/2001 on the file of Senior Civil Judge, at Karimnagar against 2nd respondent praying the Court to pass a decree for divorce by dissolving the marriage with the 2nd respondent and the learned Judge passed a decree accordingly on 21-9-2001. It is further stated that the 2nd respondent/defacto-complainant filed a complaint on 19-2-2002 before the Superintendent of Police, Karimnagar against the petitioner alleging that the petitioner had married another lady notice 15-2-2002 and the said complaint was forwarded to the Sub-Inspector of Police, Choppadandi and after receiving the complaint, the Sub-Inspector of Police, Choppadandi in Crime No. 34/2002, dated 20-2-2002 had registered the same under Section 494 I.P.C. It is further stated that the 2nd respondent herself in her complaint had admitted that a divorce decree had been granted by the learned Senior Civil Judge, Karimnagar and in the said circumstances the present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to in short as "Code" for the purpose of convenience, to quash the proceedings in Cr. No. 34/2002 of P.S. Choppadandi.
3. Sri Venu Madhav, counsel representing Sri Bari, the learned counsel for the petitioner had submitted that in view of the specific provision Section 198 of the Code, the Police cannot register a crime under Section 494 I.P.C. The learned counsel further submitted that it is not in dispute that divorce was obtained in a competent Civil Court by the petitioner and in view of the same, the proceedings cannot be sustained and they are liable to be quashed. The learned counsel placed strong reliance on KRISHNA GOPAL DIVEDI Vs. PRABHYA DIVEDI, .
4. The Sri M.A. Khadeer, learned Additional Public Prosecutor, on the contrary had contended that by virtue of the amendment A.P. Act No. 3 of 1992, which came into effect from 15-2-1992, Section 494 I.P.C. also was made cognizable and hence it cannot be said that the Police cannot register the crime at all under Section 494 I.P.C. The learned Additional Public Prosecutor also had contended that as can be seen from the decree filed before this Court, it is only an exparte decree and this is a question of fact to be gone into at the appropriate stage and on such a ground, the impugned proceedings cannot be quashed.
5. Heard both the counsel.
6. It is not in dispute that Section 494 I.P.C. falls under Chapter XX of the Indian Penal Code dealing with offences relating to marriage. By virtue of the amendment - A.P. Act No. 3 of 1992, the said offence was made cognizable and non-bailable. This is the ground on which the learned Additional Public Prosecutor with all vehemence had contended that the Police have power to investigate into such a cognizable offence and hence the present proceedings need not be quashed at this stage. In K.VIJAYA LAKSHMI Vs. K. LAKSHMINARAYANA, 2000 (2) A.L.D. (CRL.) 184 the question relating to the specific prohibition for taking cognizance of any offence punishable under Chapter XX of the Indian Penal Code, except upon a complaint made by a person aggrieved had been dealt with. Likewise, in VIJAYA LAKSHMI Vs. SANJEEV REDDY, 2000 (2) A.L.D. (CRL.) 200 the bar imposed by Section 198 of the Code had been dealt with. In view of the specific bar imposed by Section 198 of the Code, it is doubtless that a Magistrate has no power to take cognizance of an offence under Section 494 I.P.C. based on a police report - charge sheet. It is also pertinent to note that though the amendment A.P. Act No. 3 of 1992 had brought in an amendment to the First Schedule of the Code making the aforesaid offence cognizable and non-bailable, Section 198 of the Code was left untouched without any corresponding amendment. In view of the situation referred to supra, it is desirable and advisable to have appropriate amendment to Section 198 of the Code also in this regard.
7. Apart from this aspect of the matter, there is yet another important aspect.
8. It is not in dispute that the Senior Civil Judge, Karimnagar had granted a decree for divorce and the said decree is in force. It is no doubt true that it is only an exparte decree of divorce. It is also brought to my notice that the said decree continues to be in force. Be that as it may, in the decision referred (1) supra, the Apex Court while dealing with a similar case wherein the husband had undergone second marriage after obtaining exparte divorce decree against the first wife, held that he cannot possible be convicted under Section 494 I.P.C. even though the exparte decree is later set aside and hence accordingly the criminal proceedings against the husband had been quashed on the ground of it being only an exercise in futility.
9. In the present case also, in view of the material available on record, I am satisfied that the decree of divorce was obtained from a competent Civil Court by the petitioner/accused and hence the proceedings in Crime No. 34 of 2002 of P.S. Choppadandi, cannot be sustained in law. Accordingly, the said proceedings are hereby quashed.
10. The Criminal Petition is thus ordered.