Navaneetham vs Ellappan and another

V. Rengasamy, J.—This revision challenging the order of the learned Judicial Magistrate No. II, Poonamallee is against the dismissal of the

compliant filed by the revision petitioner u/s 200 Cr.P.C. for an offence punishable u/s 494 I.P.C. read with Section 34 I.P.C. The petitioner being

the wife of the first respondent has alleged that the first respondent by marrying the second respondent as his second wife has committed the

offence u/s 494 I.P.C. The learned Magistrate has returned the complaint with an endorsement that the F.I.R. in Crime No. 482 of 1994 u/s 494

read with Section 34 I.P.C. on the same subject is pending enquiry with the police, and therefore, second complaint was returned.

The order of the learned Magistrate shows that already a complaint has been filed by the petitioner for the offence u/s 494 I.P.C. against the

respondents herein, but the learned Magistrate has referred it either u/s 155(2) or u/s 156 Cr.P.C. for investigation by the police. Mr. Sudanthiram,

Learned Counsel appearing for the petitioner submits that u/s 198 Cr.P.C. the offence u/s 494 I.P.C. can be taken cognizance of by the Court

only on the complaint of the aggrieved person, that the Court cannot take cognizance of the offence, on the report of the police after investigation

either u/s 155(2) or 156 Cr.P.C. and therefore, the investigation by the police becomes unnecessary, and the Court was wrong in referring the

matter to the police for the offence u/s 494 read with Section 34 I.P.C. He also refers to a decision of this Court in Jaganathan, R. v. State of

Tamil Nadu, represented by the Sub-Inspector of Police, Yercaud (1994 1 L.W. (Crl.) 537) wherein the complaint u/s 500 and 501 I.P.C. given

by a party was referred to u/s 156(3) Cr.P.C. to the police for investigation and after filing of the report by the police, the further proceedings was

taken by the Magistrate. It is observed in that case that for the offence under Sections 500 and 501 I.P.C. only the party affected should file a

complaint, that as the Court has to take cognizance of such offence only on such complaint from the party, the Court cannot take cognizance of the

offence on the complaint of the police officer, and therefore, the proceedings on the basis of the report filed by the police will be illegal. In this

case, if the report received from the police officer is the basis for proceeding against the respondents for the offence u/s 494- I.P.C, it will be illegal

because the Court is bound to take cognizance of the said offence only on the complaint of the aggrieved party, and not on the report of the police

officer. Therefore, as rightly contended by the Learned Counsel appearing for the petitioner, the Magistrate ought not to have referred this matter

to the police for investigation either u/s 155(2) or 156, Cr.P.C. for investigation and the Magistrate should have proceeded u/s 200 Cr.P.C. for

taking cognizance of the offence alleged by the petitioner. For this reason the return of the complaint on the ground that the complaint given

previously is still pending enquiry is not proper.

It is for the learned Magistrate either to take cognizance of the offence of the complaint given by the petitioner on 7.1.1994 or take cognizance

of the fresh complaint preferred by the petitioner which has been returned by the Magistrate. He is not expected to await for the report of the

police as the cognizance can be only on the complaint of the affected party. Therefore, the order of the learned Magistrate is set aside and he is

directed to take cognizance of the offence either on the complaint filed on 7.1.1994 or the subsequent complaint filed on 16.2.1995.