Karnataka High Court
Sri. Rajashekara K S vs The State Of Karnataka on 29 May, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:18171
CRL.P No. 6536 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 6536 OF 2017
BETWEEN:
SRI. RAJASHEKARA K S,
S/O SADASHIVAPPA GOWDA,
AGED ABOUT 60 YEARS,
R/AT: ALAGERI MANDRI,
HARIDRAVATHI POST,
HOSNAGARA TALUK - 577 418.
...PETITIONER
(BY SRI. B.N. SHETTY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
Digitally signed STATE PUBLIC PROSECUTOR,
by HIGH COURT OF KARNATAKA,
NARAYANAPPA
LAKSHMAMMA BENGALURU - 560 001.
Location: HIGH
COURT OF 2. SMT SAROJA H V,
KARNATAKA
W/O RAJASHEKARA,
AGED ABOUT 60 YEARS,
R/AT RANGANATHASWAMY
TEMPLE ROAD,ANANDAPURAM
SAGAR TALUK,
SHIVAMOGGA DISTRICT - 577 403,
...RESPONDENTS
(BY SRI. M.R. PATIL, HCGP FOR R1
SRI. BIMBADHARA M. GOWDAR, ADVOCATE FOR R2)
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NC: 2024:KHC:18171
CRL.P No. 6536 of 2017
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH ALL ENTIRE
PROCEEDINGS INITIATED BY THE ADDITIONAL CIVIL JUDGE
AND J.M.F.C., SAGAR, SHIVAMOGGA IN C.C.NO.185/2014 IN
RESPECT OF THE PETITIONER IS CONCERNED.
THIS PETITION, COMING ON FOR FURTHER
ARGUMENTS, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for following relief:
"Wherefore, it is prayed that this Hon'ble Court may be pleased to allow this petition and quash all entire proceedings initiated by the Additional Civil Judge and JMFC, Sagar, at Shivamoga in C.C.No.185/2014 in respect of the petitioner is concerned in the interest of justice and equity".
2. The second respondent claims to be the legally wedded wife of the petitioner claiming that the marriage between them has been solemnized on 12.05.1980 had filed a private complaint under Section 200 of Cr.P.C. on 19.04.2014, which came to be numbered as PCR.No.14/2014.
3. The learned Magistrate having taken cognizance of the complaint made directed the registration of a case and -3- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 referred the matter for investigation to the concerned CPI of Sagar Rural Police Station and directed to submit a report by 24.05.2014. Report having been submitted, the matter was placed before the Court on 10.06.2014, when the Magistrate directed the registration of case, however, in the said order sheet, it is mentioned that cognizance has been taken. It is this order, which is challenged, in the present petition.
4. Sri. B.N. Shetty, learned counsel appearing for the petitioner would submit that the Magistrate could not have taken cognizance of the offences on the basis of a charge sheet, which has been submitted by the jurisdictional police after investigation. In this regard, he relies upon the decision of the Hon'ble High Court of Andhra Pradesh in Crl.P.No.745/2002 in the case of MAMIDALA RAMESH VS STATE, more particularly paragraph 7 there of is reproduced hereunder for the purpose of reference.
7. It is not in dispute that Sec. 494 I.P.C. falls under Chapter XX of the Indian Penal Code dealing with offences relating to marriage. By -4- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 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 v. K. Lakshminarayana, (2) 2000 (2) ALD (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 v. Sanjeev Reddy, (3) 2000 (2) ALD (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.
5. He also relies upon another judgment of Hon'ble High Court of Andhra Pradesh in the case of D.VIJAYALAKSHMI VS. D. SANJEEVA REDDY -5- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 reported in 2001 CRL.LJ.1583 more particularly paragraph 3 thereof is reproduced hereunder for the purpose of reference.
"3. Coming to the second point, the charge sheet has been filed as aforesaid by the Sub- Inspector of Police, Musheerabad for the alleged offences under Section 498(A) and 494 of the IPC. 498-A is cognizable and therefore the police can investigate and lay the charge sheet ultimately if the investigation discloses the case against the accused of trial, What was non-cognizable offence under Section 494 was made cognizable in view of the State amendment brought to the First Schedule appended to the Criminal Procedure Code. The State amendment having received the assent of the President is valid and would prevail even in the wake of any repugnancy between the State Law and Central Law in so far as the State of Andhra Pradesh is concerned. The offence under Section 498-A of the IPC is cognizable but it is not cognizable elsewhere in the country. In view of the State amendment the investigating agency is entitled to investigate the offence alleged under Section 494 of the IPC. But that is not the end of the matter. There are certain limitations for the Court to take cognizance. As could be seen from Chapter XIV of the Cr. P.C. one such limitation is enjoined under Section 198 of the Cr. P.C. Section 198 of the Cr. P.C. bars the Court from taking cognizance of any offence falling under Chapter XX of the Penal Code, 1860 and relating to institution of marriage with the avoid object of preserving the institution of marriage. This bar enjoined -6- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 under Section 198 of Cr. P.C. is for the Court but not for the investigating agency. Although the agency is at liberty to register a case and conduct investigation into the offence under Section 494 of the IPC, the Court is precluded from taking cognizance of the said offence in view of the mandatory provisions of Section 198 of the Cr. P.C. It may be reiterated here that bar is for the Court but not for the investigating agency. There has been no amendment to Section 198 so as to bring the same in consonance with the State as has been done in respect of the offence under Section 498A by incorporating Section 198-A of I.P.C. amendment brought to Section 494 of the IPC. Section 198 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 pertains to Concurrent List. The initial cognizance taken by the Court upon the charge sheet filed by the investigating agency, namely, the Sub Inspector of Police, Musheerabad Police Station, itself is bad. That clearly vitiates the entire trial and the eventual conviction by the trial Court of the 1st respondent herein. This point has not been addressed by both the Courts below. Of course, on appreciation of the evidence available on record, the appellate Court has come to a clear conclusion that the offence under Section 494 of the IPC has not been made out. In any view of the matter, this revision directed against the acquittal cannot sustain."-7-
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6. By relying on both the above judgments, his submission is that the Magistrate could not have taken cognizance on the basis of charge sheet filed by the police since the offence alleged come under chapter XX of the IPC and in terms of Section 198 of Cr.P.C, there is a bar on the Courts to take cognizance for any offence falling under Section XX of IPC. His submission is that the Court could only take cognizance on the basis of a complaint and not on the basis of investigation of the Court or the charge sheet filed by the jurisdictional police.
7. Learned counsel for respondent No.2 - Defacto complainant would submit that the Court has not taken cognizance on the basis of the investigation report/charge sheet but had in fact taken cognizance on the date of presentation of the private complaint and thereafter referred the matter for investigation. It is after investigation, the summons were directed to be issued to the accused after directing registration of the case. There is no cognizance taken. The mentioning of -8- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 the word cognizance in the impugned order is by mistake. Cognizance having already been taken on 19.04.2014. There is no reason to take cognizance once again vide the impugned order.
8. Heard the learned counsel for the petitioner and learned counsel for respondents and perused the papers.
9. Sub-section (1) of Section 198 of Cr.P.C is reproduced hereunder for the purpose of reference since the other sub sections are not relevant for the purpose consideration of the present case. Sub-section (1) of Section 198 reads as under:
198. Prosecution for offences against marriage:- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence.
10. A reading of Sub-Section (1) of Section 198 of Cr.P.C.
would indicate that there is a bar on the Court to take cognizance of any offence punishable under Chapter XX of the Indian Penal Code except upon a complaint -9- NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 made by some person aggrieved by the offence. There are further conditions, which have been provided in terms of the proviso to Sub Section (1) of Section 198 of Cr.P.C. It is relying on such provision and the aforesaid judgments of Hon'ble High Court of Andhra Pradesh that Sri. B.N. Shetty, learned counsel for the petitioner would submit that the Magistrate could not have taken cognizance of the charge sheet submitted by the police. The relevant paragraphs of the judgments in both the aforesaid cases have been extracted herein above, which have been relied upon by the learned counsel for the petitioner. What would be a relevance is the facts leading up to that finding. It is paragraph No.3 of Madimala Ramesh's case referred supra which would be relevant for the purpose. Said paragraph 3 is reproduced hereunder for the purpose of reference.
3. 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
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NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 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 IPC. 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.
11. Similarly, it is paragraph No.1 of D. Vijayalakshmi's case referred supra, which would be relevant for reference, said paragraph No.1 is reproduced hereunder for the purpose of reference.
1. This revision petition is directed against the acquittal of the 1st respondent herein of the charge under Section 498 of the I.P.C., by the learned Special Judge for trial of Cases under Essential Commodities Act- cum-III Addl. Metropolitan Sessions Judge,
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NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 Hyderabad by his judgment dated 30-1- 1999 in Criminal Appeal No. 73/98. The 1st respondent and eleven (11) others were charge sheeted by the State through the Sub-Inspector of Police, Musheerabad Police Station for the alleged offences under Section 498(A) and 494 read with 109 of the I.P.C. Cognizance was taken by the learned XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad for the said offences against all the accused in C.C. No. 342/1995. Pursuant to the summons issued by the Court all the accused appealed before the trial Court and faced the eventual trial. At the end of the trial and after examining the witnesses under Section 313 of the Cr. P.C., the trial Court acquitted all the accused under Section 498-A of the I.P.C. and convicted A.1 alone under Section 494 of the I.P.C. The other accused A.2 to A.12 are acquitted of the charge under Section 494 redd with 109, I.P.C. A.1 who is the 1st respondent herein was sentenced to suffer Rigorous Imprisonment for two years and was further sentenced to pay a fine of Rs. 3,000/- and in default to suffer simple imprisonment for four months. Having been aggrieved by the conviction and sentence passed against him, he preferred the Criminal Appeal No. 73/98. As aforesaid, the learned Sessions Judge upon considering the evidence on record and after having heard the counsel on either side allowed the Criminal Appeal and thereby acquitted the appellant of the charge under Section 494 of the I.P.C. As against the said acquittal, the defacto cbmplainant, P.W. 1 in the case preferred the present revision.
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12. A perusal of both the above would indicate that in both those cases, the complaint was filed by the complainant before the jurisdictional police and there was no private complaint filed before the jurisdictional Court. It is on the basis of complaint filed before the police, the police proceeded with the investigation and submitted a charge sheet, on which basis, cognizance is taken by the jurisdictional police.
13. In the present case, a private complaint under Section 200 of Cr.P.C. has been filed by the complainant before the jurisdictional Magistrate, which in my considered opinion would satisfy the requirement of Sub-section (1) of Section 198 of Cr.P.C. In view of the complaint having been filed by an aggrieved person, which is taken cognizance by the Court. It is only after such cognizance was taken, that investigation is ordered by the Court and on investigation being completed, criminal proceedings was set in motion and summons was issued to the accused. This in my considered opinion would not fall foul of Sub-Section (1) of 198 of Cr.P.C. or the
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NC: 2024:KHC:18171 CRL.P No. 6536 of 2017 judgments of Hon'ble High Court of Andhra Pradesh in Mamidala Ramesh's and in D.Vijayalakshmi's case referred supra.
14. There being no infirmity in the order of cognizance, the cognizance having been already taken on 19.04.2014. There is no substance in the challenge made by the petitioner to the said order. Hence, the petition stands dismissed.
15. Though the petition is dismissed, for awaiting the report of the Registrar (Computers), re-list this matter on 13.06.2024 at 2.30 p.m. Sd/-
JUDGE AG List No.: 1 Sl No.: 80