Andhra HC (Pre-Telangana)
Siddapally Rami Reddy And Ors. vs State Of Ap. Represented By The Public ... on 4 August, 2006
Equivalent citations: II(2007)DMC701
ORDER P. Swaroop Reddy, J.
1. This petition is filed to quash the proceedings pending against the petitioners in C.C. No. 10 of 2006 on the file of the learned Judicial Magistrate of First Class, Nandyal. The petitioners herein are A-5 to A-8 in the above calendar case.
2. The case of the petitioners is that the SI of Police, Bandi Atmakur P.S., filed charge sheet against them and four others for the offences under Section 498-A and 494 read with 109 IPC, as well as under Section 494 IPC.
3. As per the case of the prosecution - on 22-5-1998, A-1 was married to the de facto complainant, Annem Sarada; some dowry and silver articles were given; they lead marital life for about five years; thereafter some problems arose, as A-2, father of A-1 started misbehaving with the de facto complainant, his daughter-in-law. The complainant left the matrimonial home and started living with her mother after Sriramanavami festival in 2005. At the time of Dasara festival in 2005, A-1 beat the complainant in the house of her mother, Sanjamma. On 17-11-2005 at about 10-30 AM, A-1's marriage was again performed with A-3 at Sri Lakshmi Chennakesava Swamy Temple, Markapuram. The marriage was performed by A-2 with the connivance of A-5 to A-8, the present petitioners. On knowing about the same, the de facto complainant gave complaint to the police and as there was no response, she filed a private complaint, which was referred under Section 156 (3) Cr.P.C., by the learned Magistrate to the police and after investigation and the police filed the charge sheet for the offence under Section 498A IPC against A-1 and A-2; under Section 494 read with 109 IPC against A-3 to A-8 and under Section 495 IPC against A-1 and A-2.
4. The contention of the learned Senior counsel appearing for the petitioners, now, is that the petitioners are being prosecuted for the offence under Section 494 read with Section 109 IPC only, as they have allegedly connived and supported the marriage of A-1 with A-3, which is a false allegation. It is also the contention of the petitioners that the court cannot take cognizance of the offence under Section 494 read with 109 IPC on a police report, in view of prohibition contemplated under Section 198 Cr.P.C., as per which cognizance of the offence under Section 494 IPC can be taken only on the basis of the complaint given by the aggrieved person.
5. The learned Senior counsel mainly contends that in view of the prohibition under Section 198 Cr.P.C., offence under Section 494 IPC or under Section 494 read with 109 IPC cannot be taken cognizance on the basis of the charge sheet filed by the police, as in the present charge, the charge sheet is filed by the police, the same is illegal.
6. In support of his contention, the learned Senior Counsel relied on a decision of our High Court in D. Vijayalaxmi v. D. Sanjiva Reddy 200 (2) ALD (Crl.) 200 AP herein it is held that "though the offence under Section 494 IPC is made cognizable in our State, the investigating agency, though can register case, conduct investigation; but the court cannot take cognizance of the same, on the basis of the charge sheet filed by the Police".
7. Another decision relied on by the learned Senior Counsel is the one in Mamidala Ramesh v. The State of A.P. 2003 (1) APLJ 383 (HC) wherein also similar view was expressed.
8. Thus, as contended by the learned Senior Counsel appearing for the petitioners, in view of the prohibition imposed under Section 198 Cr.PC., cognizance of the offence under Section 494 IPC cannot be taken on the basis of the charge sheet filed by the police.
9. In the present case, at the first instance, the de facto complainant gave a complaint to the police, and, according to her, as no action was taken by the police on the said complaint, she filed the private complaint, which was referred to the police under Section 156 (3) Cr.P.C. and the police after investigation filed the charge sheet. As the private complaint filed, was referred to the police under Section 156 (3) Cr.P.C., perhaps it can be contended that the private complaint that was filed by the de facto complainant can be treated as a complaint filed by the aggrieved person, to satisfy the provisions of Section 198 CrP.C.
10. In case a private complaint is filed for the offence under Section 494 IPC; in case the court refers the same under Section 156(3) Cr.P.C., to police for investigation and there after the police files charge sheet after investigation, on the basis of the charge sheet, if the court cannot take cognizance of the said offence, in view of the prohibition imposed under Section 198 Cr.P.C., it would amount to miscarriage of justice and hardship to the complainant. Perhaps, the learned Magistrate ought not to have referred the complaint filed for offence under Section 494 IPC to the police for investigation. As, in the present case, that stage is already over, the situation can be remedied by directing the trial court to follow the procedure laid down under Chapter-XIX Cr.P.C.; instead of acting on the basis of the charge sheet filed by the police, otherwise complete stoppage of prosecution in view of the prohibition imposed by Section 198 Cr.P.C., would amount to total miscarriage of justice.
11. Hence, it is directed that the learned magistrate shall follow the procedure prescribed in Chapter-XIX Cr.P.C., i.e., the procedure to be followed in warrant cases instituted otherwise than by a police report - by recording the sworn statement of the complainant, examining the witnesses, by completely ignoring the material filed by the police, including the charge sheet. Obviously, the procedure has to be followed for the entire case that arises out of the private complaint, which was referred to police under Section 156 (3) Cr.P.C., consequent upon which the present calendar case is registered. The learned Magistrate is directed to follow the above procedure.
12. With the directions as above, the petition is closed.