Andhra HC (Pre-Telangana)
K. Vijaya Laxmi vs K. Laxminarayana And Ors. on 7 June, 2000
Equivalent citations: 2000(2)ALD(CRI)184, 2000CRILJ4490, I(2001)DMC314
Author: Vaman Rao
Bench: Vaman Rao
JUDGMENT Vaman Rao, J.
1. This petition under Section 482, Cr.P.C. seeks quashing of the order dated 17.6.1999 passed by the IX Metropolitan Magistrate, Hyderabad in S.R. No. 4956/1998 in C.C. No. 429/1998 and also order dated 31.12.1999 passed by the II Additional Metropolitan Sessions Judge, Hyderabad in Crl.R.P. No. 148/1999, upholding the above order dated 17.6.1999. By the impugned orders, the petition filed on behalf of the de facto complainant for permitting her Advocate to conduct the prosecution on her behalf, on the ground that the A.P.P.O. was conducting the prosecution in an improper way, has been dismissed.
2. The facts relevant to the case may be briefly mentioned as follows :
The petitioner herein Smt. K. Vijaya Laxmi, who is the wife of the respondent No. 1-accused No. 1 filed a complaint against him under Section 200, Cr.P.C. alleging that he remarried accused No. 2, while his marriage with the petitioner was subsisting and thus committed an offence punishable under Section 494, I.P.C. The learned Magistrate is said to have referred this complaint to the police for investigation purportedly under Section 156(3), Cr. P.C. On the basis of this forwarded complaint, the police registered FIR and after investigation filed charge-sheet, which was taken on file for offence under Section 494, I.P.C. against the accused 1 and 2 on 7.1.1992 and summons were accordingly issued to them. While the Prosecuting Officer was conducting the trial, the complainant filed a Memo in S.R. No. 4956/1998 in C.C. No. 429/1998 for permitting her Advocate to prosecute and conduct the case on behalf of the de facto complainant for various reasons. It is stated that ever since filing of the charge-sheet, the petitioner's (de facto complainant's) submissions were sidelined and that all the Assistant Public Prosecutors who so far appeared in the case treating it as a State case, misguided her and led the evidence in an insufficient and improper way. It is under these circumstances, the petitioner who is the de facto complainant approached her Advocate and got filed the Memo for permitting her Advocate to conduct the case on her behalf. This request was opposed and the A.P.P.O. filed a counter denying the allegations against the Prosecuting Officers.
3. The learned Magistrate passed the impugned order holding that the Court took cognizance of the offence on the basis of the charge-sheet filed by the Station House Officer, P.S. Saidabad and not on the basis of the complaint made by the de facto complainant Smt. Vijaya Laxmi. It is further held that it is the State, which is the complainant in the case and in view of the provisions of Section 25 of Cr.P.C. it is only the Prosecuting Officers appointed by the Government who are competent to represent the State and conduct the prosecution. Thus, the request of the de facto complainant was rejected. The learned Metropolitan Sessions Judge, before whom this order was challenged in Cr.R.P. No. 148/1999 upheld this order. It was urged before the Sessions Judge that the complaint filed by the de facto complainant must be deemed to have been taken cognizance on the basis of the complaint made by her and not on the basis of the police report and in that view of the matter, the de facto complainant must have the liberty to have the case conducted through her Advocate. The learned Sessions Judge rejected these contentions and held that the Mahila Court, which took cognizance of the case has not examined the de facto complainant and the witnesses, if any, under Section 202, Cr.P.C. that the Court did not proceed under Chapter 16 of the Cr.P.C. and straightaway ordered investigation by the police under Section 156(3), Cr.P.C. and under these circumstances, the learned Sessions Judge held that the complaint was not taken cognizance on the basis of the complaint filed by the de facto complainant and that the learned Magistrate rightly took note of the police report and issued summons to the accused. Accordingly, the learned Sessions Judge dismissed the revision petition.
4. Thus, the orders of the learned Magistrate and learned Sessions Judge are sought to be quashed in this petition. The first contention of the learned Counsel for the petitioner Mr. G. Purushotham Reddy is that under Section 198, Cr.P.C. there is a specific prohibition for taking cognizance of any offence punishable under Chapter 20 of I.P.C. except upon a complaint made by a person aggrieved by the offence. Chapter 20, I.P.C. with offences relating to marriage and the offence under Section 494, I.P.C. finds place in that Chapter. It is, therefore, obvious that the prohibition enacted under Section 198, Cr.P.C. is applicable to offences under Section 494, I.P.C. and the concerned Court can take cognizance of this offence only on the basis of a complaint filed by an aggrieved person, which means in this case the spouse concerned, subject to the exceptions provided under Clauses (a), (b) and (c) of the proviso. If the aggrieved person is the wife, then apart from her, the complaint may be made on her behalf by her father, mother, brother, sister 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, in respect of offence under Section 494, I.P.C. The contention is that in the light of this provision, the learned Magistrate cannot be presumed to have referred the complaint under Section 156(3), Cr.P.C. and that it must be presumed that he has referred the complaint to the police for enquiry under Section 202, Cr.P.C, for ascertaining whether there was sufficient ground for proceeding or not. The further extension of this contention is that the charge-sheet filed by the police in this case may be treated only as a report of finding of facts and that the learned Magistrate must be deemed to have used this finding of facts for making up his mind for issuing of process against the accused under Section 202, Cr.P.C. Thus the contention is that the complaint should be deemed to have taken cognizance of by the Magistrate on the basis of the complaint filed by the wife (de facto complainant) and not on the basis of the charge-sheet filed by the police. This contention is sought to be repudiated by the learned Counsel for the respondents 1 and 2 by pointing out the specific decision of the Magistrate as recorded in the impugned order, that he referred the matter to the police for investigation under Section 156(3), Cr.P.C. and as such there is no scope for presuming that it must be deemed to have been referred to the police under Section 202, Cr.P.C.
5. In support of the contention of the learned Counsel for the petitioner, he relied on the judgment of the Supreme Court in Jamuna Singh v. Bhadai Shah, , and contended that the Magistrate should be presumed to have referred the complaint to the police for investigation under Section 202, Cr.P.C. and not under Section 156(3), Cr.P.C. and that the language used by the Magistrate is not determinative of the matter. From a reading of the judgment of the Supreme Court referred to above, it is clear that, in that case after receiving the complaint and after recording the sworn statement of the complainant, the learned Magistrate passed the following order:
"Examined the complaint on S.A. The offence is cognizable one. To SI, Baikunthpur for institution of a case and report by 12.12.1956."
The Supreme Court held that if the Magistrate had used the words "for investigation" instead of the words "for instituting a case" the order would clearly be under Section 202 of Cr.P.C. and that the fact that he used the words "for instituting a case" did not make any difference. From this, the learned Counsel for the petitioner seeks to contend that in this case also the complaint must be deemed to have been referred to the police under Section 202, Cr.P.C.
6. This contention cannot be accepted for two reasons. Firstly, though the actual order passed by the learned Magistrate is not a part of the file in this case but both the Courts below have proceeded on the assumption that the Magistrate has specifically referred the complaint for investigation under Section 156(3), Cr.P.C. In the judgment of the Supreme Court referred to by the learned Counsel for the petitioner it is specifically observed that the Magistrate could have, without taking cognizance, directed an investigation of the case by the police under Section 156(3), Cr.P.C. But considering the facts of that case, the Supreme Court observed, "once however he took cognizance he could order investigation by the police only under Section 202, Cr.P.C. and not under Section 156(3), Cr.P.C". The facts of that case disclose that the Magistrate had taken action under Section 200, Cr.P.C. which indicate that he had taken cognizance of the offence mentioned in the complaint and under such circumstances, it was open to him to order investigation only under Section 202, Cr.P.C. and not under Section 156(3), Cr.P.C. It is under these circumstances the Supreme Court held that the Magistrate used the words "for instituting case" in his order though he was actually taking action under Section 202, Cr.P.C. that being the only section under which he was in law entitled to act.
7. It may be pointed out that once the Magistrate on receiving a complaint has forwarded the complaint to the police for investigation under Section 156(3), Cr.P.C. before taking any step as contemplated under Section 200 of Cr.P.C. the question of investigation, under Section 202, Cr.P.C. does not arise. Even assuming that the mention of a provision of law by the Magistrate is not significant or that such a mention is done mistakenly, the facts in the case before me do not admit of any doubt that the learned Magistrate in this case referred to the complaint to police only under Section 156(3), Cr.P.C. It would be pertinent to have a look at the provisions under Section 202, Cr.P.C. and the said section is extracted as under :
"Postponement of issue of process :
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made:
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200.
(2) In any inquiry under Sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to procure all his witnesses and examine them on oath.
(3) If an investigation under Sub-section (1) is made by a person not being a police officer, he shall have for the investigation all the powers conferred by this Code on an officer-in-charge of a police station except the power to arrest without warrant."
8. Thus from Sub-section (1) of Section 202, it is clear that the Magistrate on receiving a complaint, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. But there is a mandatory bar under proviso to Sub-section (1) of Section 202, against giving a direction by the Magistrate for investigation by a police officer or such other person as he thinks fit, unless the complainant and the witnesses present, if any, have been examined on oath under Section 200, Cr.P.C. Thus the litmus test for ascertaining whether the Magistrate referred the complaint to the police for investigation under Section 156(3), Cr.P.C. or under Section 202(1), Cr.P.C. is whether before making such a reference to the police for investigation, the complainant and his witnesses, if any, have been examined on oath under Section 200, CrP.C. If the complainent irvnl and his witnesses present have not been examined under Section 200, CrP.C. a reference by the Magistrate to the police for investigation can only be made under Section 156(3), Cr.P.C. and not under Section 202, in view of the prohibition enacted under proviso (b) to Sub-section (1) of Section 202.
9. In this case inasmuch as apparently the complainant and his witnesses have not been examined on oath and the Magistrate appears to have forwarded the complaint for investigation by the police after receiving the complaint, such reference to the police can only be under Section 156(3), Cr.P.C. In this case, apart from these abovenoted facts, the Magistrate is said to have specifically mentioned the provision of Section 156(3), Cr.P.C. under which he has forwarded the complaint to the police for investigation. Thus, even assuming that the language used by the Magistrate and the mention of provision of law is not conclusive, it is open to this Court to ascertain independently as to under what provision of law the complaint has been forwarded to the police. The above facts make it abundantly clear that in this case the complaint has been forwarded to the police only under Section 156(3), Cr.P.C. for investigation.
10. It is seen in this case that on receiving the complaint at the police station concerned, the first information was recorded and investigation was taken up. On the conclusion of the investigation, a charge-sheet has been filed against the accused before the Magistrate. The learned Magistrate took cognizance of the case against the accused on the basis of this charge-sheet. I cannot see any way to accept the contention of the learned Counsel for the petitioner that in this case the cognizance must be deemed to have been taken on the basis of the complaint filed by the de facto complainant and that the police report must be presumed to have been used by the Magistrate only for ascertaining the existence of prima facie case to enable to proceed against the accused.
11. Under Section 301(1), Cr.P.C. the Public Prosecutors or Assistant Public Prosecutors in-charge of the case may appear and plead without any written authority before any Court, in which that case is under inquiry, trial or appeal. Thus it is only the Prosecuting Officer in-charge of a particular case who can conduct the prosecution under Section 301(1), Cr.P.C. However, under Sub-section (2) of Section 301, it is contemplated that if a private person instructs a Pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case shall conduct the prosecution and the Pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may with the permission of the Court, submit written arguments after the evidence is closed in the case. Thus the plea on behalf of the petitioner (de facto complainant) that her Advocate may be permitted to conduct the prosecution, as if the case was instituted on a complaint filed by her, cannot be accepted. In this view of the matter, the order of the learned Magistrate and the order of the learned II Metropolitan Sessions Judge cannot be said to suffer from any infirmity.
12. It is, however, unfortunate to note that the learned Magistrate proceeded under Section 156(3), Cr.P.C. in this case and then on filing of the charge-sheet by the police, took cognizance of the offence on the basis of such police report, ignoring the provisions under Section 198, Cr.P.C. Section 198 of Cr.P.C. contemplates that if the offence is under Section 494, I.P.C., then the Magistrate is prohibited from taking cognizance of such offence, except on a complaint made by some person aggrieved by the offence. In this case, the person aggrieved by the offence committed by accused 1 and 2 is the wife of the accused No. 1 i.e., the de facto complainant. The offence could have been taken cognizance on the complaint filed by the de facto complainant or on the complaint filed by some one on her behalf as contemplated under Section 198(1)(c) of Cr.P.C. In the light of this provision, the learned Magistrate ought not to have taken cognizance of the offence on the basis of the charge-sheet filed by the police. This may have grave consequences. I had half a mind to set the clock back and to quash the cognizance taken by the learned Magistrate and direct him to proceed from the stage of the complaint under Section 200, Cr.P.C. and other relevant provisions under Cr.P.C. But I am not inclined to do so considering the fact that the complaint was lodged as far back as in the year 1989. At this stage rolling back the proceedings would amount to causing great hardship to the accused, who would be required to go through the ordeal of almost a fresh trial after almost eleven years.
13. For the above reasons, this petition is dismissed. No costs.