Karnataka High Court
State Of Karnataka vs Byraiah on 9 June, 1986
Equivalent citations: ILR1987KAR730
JUDGMENT Patil, J.
1. The State has filed this appeal being aggrieved by the judgment and order of acquittal dated 17-8-1985 passed by the Chief Metropolitan Magistrate, Bangalore City, in C.C. No. 410/1985, on his file, whereby he has acquitted the accused-respondent Nos. 1 & 2 of the charge of the commission of offence of bigamy punishable under Section 494 IPC.
2. At the first hearing, it appears to us, that serious irregularities had been committed in taking cognizance as also in the trial of the case and we, therefore, thought it proper to issue notice to the original complainant as also to the accused at the stage of admission.
3. We have heard the Additional State Public Prosecutor and the Counsel appearing for the accused respondent Nos. 1 and 2 and the Counsel appearing for original complainant who is arrayed as Respondent-3.
4. Without touching the merits of the case, the facts necessary for disposal of this appeal may briefly be stated thus :
The 3rd respondent-original complainant-filed a private complaint before the Chief Metropolitan Magistrate, Bangalore City, on 11-9-1979, inter alia, contending that although she is a lawfully wedded wife o accused-respondent No. 1, he had taken respondent-2 as his second wife on 10-5-1978 and the second respondent had also knowingly that the first wife is living has married him and they had thereby committed the offence of bigamy punishable under Section 494 IPC. She also arrayed 8 others as accused in the complaint on the allegation that one way or the other they had abetted commission of the offence.
5. The Learned Magistrate, without taking cognizance of the offence wrongly referred the complaint to the police for investigation under Section 156(3) Cr.P.C. On receipt of the complaint, the police registered a case, took up investigation and after completing the investigation submitted a charge report on 31-5-1986 against accused-respondents (1) and (2) stating further that no offence of abetment as against others was forthcoming. The Magistrate, after taking cognizance of the offence punishable under Section 494 IPC, on the said police report, proceeded to inquire into the same, as the case instituted on police report. Although the accused objected to the Magistrate taking cognizance of the offence on the police report, the Magistrate being of the view that even if the original complaint had been referred to police under Section 156(3) Cr..P.C., it. must be deemed to have been referred to the police for investigation as provided under Section 155(2) Cr. P.C., over-ruled the objection and proceeded with the trial of the case. The Magistrate, who succeeded later on, on the basis of the evidence adduced at the trial held that the prosecution had failed to bring home guilt of the offence punishable Under Section 494 IPC. In that view, he having acquitted, the State has filed this appeal questioning the legality and correctness of the order of acquittal passed by the Magistrate.
6. One of the contentions advanced by Mr. Nanjundaiah, Learned Additional State Public Prosecutor, is that the Magistrate has not only committed an error in referring the complaint to the police for investigation as provided under Section 156(3), but he had also committed an error in taking cognizance of the offence on police report and proceeding with the trial of the case as one instituted on the police report in violation of the provisions contained in Section 198 Cr. P.C. and as such the trial is vitiated and the order of acquittal passed by the Magistrate, therefore, cannot be sustained. Mr. Kulkarni, Learned Counsel appearing for the complainant-respondent (3), adopting these very contentions, submitted that the order of acquittal deserves to be set aside and the complaint deserves to be remitted to the Magistrate with a direction to dispose of the same in accordance with law.
7. Mr. Krishna Bhat, Learned Counsel appearing for the accused-respondents (1) & (2), however, submitted that neither the State can now be permitted to make any grievance against the order of acquittal, nor the proceedings are vitiated because of the irregularities committed in as much as it was covered by Section 460 Cr. P.C. and was curable under Section 465 Cr. P.C. and therefore even if the Magistrate had committed an error in referring the complaint to the police for investigation and in taking cognizance of the offence on the police report, the trial having been concluded and the accused having been acquitted, he submitted, there is no justification for interference with the order of acquittal passed by the Trial Court. In support of his contentions, he also sought to place reliance on the decision of this Court in the case of Abdul Ameez Khan v. State by Nanjansud Town Police & Another., ILR (Karnataka) 1978(2) 1721 and the decision in the case of Purshottam Jethanand v. The State of Kutch, . In the second mentioned case relied upon by Mr. Krishna Bhat, no such question as arising in the case on hand was arising for consideration there. There, the Magistrate who had ceased to have jurisdiction had taken cognizance of the offence in bona fide belief that he had power to do so and no prejudice caused had also been show there. Therefore, it is not of much assistance to us. In the first mentioned case of Abdul Ameez Khan, a complaint was made to the Magistrate alleging commission of the offence of defamation punishable under Section 500 of the Indian Penal Code. The Magistrate, instead of taking cognizance of the offence himself referred the complaint to the police for investigation under Section 156(3) Cr. P.C. After investigation, when the police submitted a report regarding the commission of the offence punishable under Section 500 IPC, the Magistrate proceeded to take cognizance of the offence on the said police report and directed to issue process against the accused. Later on, the succeeding Magistrate noticing the irregularities committed in the issue of process cancelled those proceedings and over-ruling the objections raised by the accused, the Magistrate decided to proceed with the trial of the case as one instituted on a police report. The accused therefore approached the High Court invoking the inherent powers of the High Court under Section 482 Cr. P.C. One of the contentions advanced on behalf of the accused was that the proceedings had been vitiated. Repelling that contention this Court observed :
"It cannot be said so because Section 400(e) of the Code of Criminal Procedure lays down that if any Magistrate not empowered by law to do any of the following things, namely ; to take cognizance of an offence under Clause (a) or Clause (b) of Sub-section (I) of Section 190 erroneously in good faith does that thing, its proceedings shall not be set aside merely on the ground of its not being so empowered. This provision saves the situation. It cannot be disputed that the then Magistrate took cognizance on the basis of the charge-sheet erroneously and in good faith. He had the jurisdiction to take cognizance of the offence as it had been committed in an area falling within his jurisdiction. Therefore, it is not possible to set aside the whole of the proceedings on the said ground."
It was however held:
"Even after the report of the police, after investigation, the Magistrate ought to have taken cognizance of the offence on the private complaint of the private complainant only."
And, ultimately, after quashing the proceedings from the stage of issue of process to the accused, the Magistrate was directed to dispose of the complaint made to him in accordance with law and as provided under Section 200 Cr.P.C.
8. Although it would appear from the observations made by this Court in the case of Abdul Ameez Khan, ILR (Karnataka) 1978(2) 1721 the Magistrate had proceeded to take cognizance on the basis of the charge sheet erroneously and in good faith and on that ground alone it was not possible to set aside the whole proceedings, in effect all proceedings taken in the case from the stage of issue of process to the accused were quashed. However, the question regarding the bar of the Magistrate taking cognizance, as now raised in the case on hand, was neither specifically raised nor considered. Since, as provided under Section 198 Cr.P.C., no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code, except upon the complaint made by some person aggrieved by the offence or by other person covered by the proviso with the leave of the Court, we do not think without taking cognizance of the offence on the complaint Magistrate can either refer the complaint to the police for investigation under Section 156(3) or he can take cognizance of any such offence of bigamy complained to him on the police report, in flagrant violation of the provisions of bar against taking cognizance of such offences punishable under Chapter XX of the Indian Penal Code, otherwise than on the complaint of the aggrieved person or such other person as provided under the provisions of Section 198 Cr.P.C. In such cases of offences where there is bar against the Magistrate taking cognizance of the offence, except on the complaint made to him by the aggrieved 1 person or such other person as provided under Section 198 Cr. P.C., the question of the Magistrate permitting the police 1 to investigate into such offences- as provided under Section 155(2) Cr.P.C, neither arises nor it is permissible for the Magistrate to permit the police to make investigation of such offences. When complaint of such offence is made to the 1 Magistrate and if allegations in the complaint disclose commission of such offence, the only course open to the Magistrate is to take cognizance of the offence on such complaint and proceed to record the statement of the complainant as provided under Section 200 Cr. P.C. and to dispose of the same in accordance with law, following the procedure for inquiry and trial applicable to a case instituted on private complaint. It therefore follows that any irregularity in taking cognizance of such offence in violation of the provisions contained in Section 198 Cr.P.C. are neither covered by the provisions under Section 461 nor the same are curable as provided under Section 465 Cr.P.C. Any inquiry and trial made in violation of the provisions of Section 198 Cr.P.C. would not be merely irregular, but void being without jurisdiction. Therefore, the order of acquittal passed by the the Magistrate cannot be sustained.
In the result and for the reasons stated above, the appeal is allowed. The order under appeal passed by the Court below is set aside. The complaint is remitted back to the Magistrate with a direction to dispose of the same in accordance with law and in the light of the observations made above.