Renikuntla @ Chinthala Kavitha vs State of Telangana

N.Tukaramji, J

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘the BNSS’), seeking quashment of the proceedings against the petitioner in C.C.No. 26 of 2022, on the file of the learned Special Judicial First Class Magistrate-cum-Excise Court, Mancherial.

The petitioner is arrayed as Accused No.1 in the Calendar Case registered for the offence under Section 494 of the Indian Penal Code, 1860 (for short ‘I.P.C.’).

I have heard Mr.Venkataiah Ediga, learned counsel for the petitioner and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor, representing Respondent No.1-State.

The prosecution’s case, in brief, is that Respondent No.2, the de-facto complainant, lodged a police report on 23.09.2021 that he married the petitioner/Accused No.1 on 05.05.2013 and led a conjugal life for approximately three years. Subsequently, matrimonial discord arose, and the dispute was referred to the elders for resolution. However, despite the absence of any formal dissolution of marriage, the petitioner is alleged to have entered into a second marriage with Accused No.2, with whom she now has a child. criminal case, conducted charge-sheet. Based on this report, the Police registered a an investigation, and ultimately filed a charge sheet.

Learned counsel for the petitioner contends that under the Andhra Pradesh Amendment Act of 1991–92, although an offence under Section 494 of the Indian Penal Code (‘IPC’) is cognizable, the Court is precluded from taking cognizance of such an offence under Section 198 of the Code of Criminal Procedure, 1973, unless a private complaint is filed by the person aggrieved. In the present case, as conceded by the prosecution and evident from the charge-sheet, the proceedings were initiated on the basis of a police report rather than a complaint from the aggrieved party.

Learned counsel further relies on the judgment of the High Court of Andhra Pradesh in B. Parvathi v. State of Andhra Pradesh 2020(1) ALD (Crl.) 876 (AP), wherein the Court unequivocally held that cognizance under Section 494 IPC is barred unless the complaint is made by the aggrieved individual. Accordingly, the petitioner prays for judicial intervention and quashing of the criminal proceedings.

The learned Additional Public Prosecutor has fairly conceded that the present case was indeed initiated on the basis of a police report filed by the de facto complainant, despite the statutory requirement that such complaints be filed directly before a Magistrate by the aggrieved person, as prescribed under Section 198 Cr.P.C.

I have perused the materials on record.

It is an admitted fact that the proceedings before the trial Court have been initiated on the basis of a police report submitted by the de-facto complainant. In this context, it is pertinent to refer to the statutory provision governing the prosecution of offences under Section 494 of the Indian Penal Code (IPC). The relevant legal framework stipulates specific conditions under which a Court may take cognizance of such offences, particularly emphasizing the necessity of a complaint being filed by the person aggrieved, rather than initiation through a police report.

“198. Prosecution for offences against marriage.—(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter 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.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

(3) ………

(4) ………

(5) ………

(6) ………

(7) ………”

Accordingly, Section 198(1) of the Code of Criminal Procedure, 1973, explicitly provides that a Court shall take cognizance of an offence under Section 494 of the Indian Penal Code only upon a complaint filed by the person aggrieved. This statutory mandate precludes the initiation of such proceedings on the basis of a police report or by any person other than the aggrieved party, thereby preserving the personal nature of the grievance in cases of bigamy.

Further, the High court of Andhra Pradesh in B. Parvathi’s case (supra) held that, although the Andhra Pradesh Second Amendment Act 3 of 1992 rendered the offence cognizable, enabling Police investigation, no corresponding amendment was made to Section 198 CrPC. Hence, Section 198(1) CrPC still imposes a bar on the Court from taking cognizance of an offence under Section 494 IPC unless a complaint is filed directly by the person aggrieved. The term ‘complaint’, as defined in Section 2(d) CrPC, explicitly excludes a police report. Consequently, a charge-sheet submitted under Section 173(2) CrPC does not qualify as a complaint, and therefore, cannot be the basis for the Court to take cognizance of Section 494 offence.

In light of the aforementioned settled legal position, the cognizance taken by the trial Court is not in accordance with the procedure prescribed under law. Specifically, in the absence of a complaint filed by the person aggrieved, as mandated under Section 198(1) of the CrPC, the initiation of proceedings based on a police report is procedurally defective. Consequently, the proceedings instituted against the petitioner/Accused No.1 stand vitiated.

Accordingly, the Criminal Petition is allowed. The proceedings against the petitioner/Accused No.1 in C.C. No. 26 of 2022, pending on the file of the learned Special Judicial First Class Magistrate-cum-Excise Court, Mancherial, are hereby quashed.

Pending miscellaneous applications, if any, shall stand closed.