Sherin and Others vs State of Kerala

N.K. Balakrishnan, J.—Petitioners are accused Nos. 1 to 7 in CC No. 580/2013 of Judicial First Class Magistrate Court, Kayamkulam. The offence alleged against them is u/s 494 r/w 34 of IPC. A complaint was filed before the Magistrate as CMP No. 6409/2012 alleging commission of offence by the accused u/s 494 read with Section 34 IPC. That complaint was forwarded to the Police for investigation u/s 156(3) of Cr.P.C. without taking note of the bar u/s 198 of Cr.P.C..

After investigation, Police filed final report u/s 173(2) of Cr.P.C., alleging that the petitioners committed the offence u/s 494 r/w 34 of IPC. The learned Magistrate without applying his mind, took cognizance of the offence u/s 494 r/w 34 of IPC.

Section 494 of IPC falls in Chapter XX of IPC. Section 198 of Cr.P.C. makes it clear that no Court shall take cognizance of an offence punishable under Chapter XX of IPC except upon a complaint made by some person aggrieved by the offence. But without application of mind and without taking note of the specific bar u/s 198 of Cr.P.C., the learned Magistrate took cognizance of the offence based on the report filed by the police u/s 173(2) of Cr.P.C. It is clearly illegal. Hence, it is liable to be set aside.

The learned counsel for the 2nd respondent/complainant submits that the 2nd respondent intends to file a protest complaint since a negative report was filed by the Police with regard to the offence allegedly committed by the accused u/s 406 of IPC. It is further submitted by the learned counsel that since the complaint was filed by the 2nd respondent alleging commission of offence u/s 494 r/w 34 of IPC, the Magistrate should have, without forwarding the complaint to the Police u/s 156(3) of Cr.P.C., followed the procedure prescribed under Sections 200 and 202 of Cr.P.C. Therefore, the learned counsel submits that CMP No. 6409/2012, filed by the 2nd respondent, may be treated as a complaint and the learned Magistrate may be directed to proceed afresh so far as it relates to the offence u/s 494 r/w 34 of IPC.

The learned counsel for the petitioners submits that the offence u/s 494 of IPC cannot lie against the petitioners since the parties are Muslims and hence the 1st petitioner is legally entitled to have four wives at a time and so marrying a second woman, during the subsistence of the 1st marriage, cannot attract the offence u/s 494 r/w 34 of IPC. That also was a matter which should have been taken note of by the learned Magistrate.

In view of the fact that the parties are Muslims, the allegation that the 1st petitioner committed offence u/s 494 of IPC and other petitioners committed offence u/s 494 r/w 109 of IPC, cannot be sustained. Therefore, no purpose would be served by proceeding with the complaint/CMP No. 6409/2012 as regards the offence of bigamy is concerned. If the 2nd respondent is so advised, she can file a complaint with regard to the offence u/s 406 of IPC, if there are sufficient materials to be produced before Court.

When a complaint is filed before Magistrate, he has got discretion in the matter as to the procedure to be followed. If on a reading of the complaint he finds the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation u/s 156(3) of Cr.P.C. will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which is primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

If the Magistrate chooses to take cognizance of an offence on complaint he shall examine upon oath the complainant and the witnesses present, if any, or if he chooses to postpone the issue of process he shall 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 if the offence complained of is triable exclusively by the Court of Session, no such direction for investigation shall be made by the Magistrate. Therefore, when a complaint is filed, the learned Magistrate has to either proceed u/s 200 and the succeeding provisions of Cr.P.C. or can forward the complaint to the police for investigation u/s 156(3) of Cr.P.C. This Court had occasion to emphasise the requirement of application of mind by Magistrates while exercising power u/s 156(3) of Cr.P.C. If the Magistrate does not choose to take cognizance on the complaint he is bound to go through the complaint and find whether it is a case where investigation is to be ordered u/s 156(3) Cr.P.C. (See the decision of the Supreme Court in Madhao and Another Vs. State of Maharashtra and Another, ).

It would be an exercise in futility to conduct investigation in respect of offences falling under Chapter XX of IPC, for, the final reports in such cases cannot be acted upon by the Court. Therefore, the Magistrates have to apply their mind before ordering investigation u/s 156(3) Cr.P.C. and also when they are called upon to take cognizance based on such police reports.

It is also noticed by me that in respect of offences falling under Chapter XXI of IPC also, complaints are seen forwarded by the Magistrates to the Police for investigation u/s 156(3) of Cr.P.C., without noticing the bar u/s 199 of Cr.P.C. It is also seen that in cases, falling under Chapter XX or XXI, when final reports are filed by the Police without noticing the bar under Sections 198 or 199 of Cr.P.C. as the case may be, Magistrates take cognizance on such final reports evidently because they do not apply their mind properly. Even if mistakenly a complaint involving offences under Chapter XX or XXI happened to be sent for investigation u/s 156(3) Cr.P.C. when the final report is filed, the Magistrate can ignore that final report and proceed on the original complaint for which the Magistrate may have to send notice to the complainant so that if he/she is interested in prosecuting the matter he/she can let in evidence as required u/s 200 Cr.P.C. After ignoring the final report, if the Magistrate proceeds on the original complaint filed by the complainant, and if the Magistrate is satisfied from the evidence adduced that there is sufficient ground for proceeding and if the Magistrate issues process to the accused u/s 204 Cr.P.C. the action so taken by the Magistrate cannot be found fault with.

In the case on hand it has already been found that the cognizance taken by the Magistrate is illegal. Hence, this Crl MC is allowed. All further proceedings in CC 880/2013 on the file of the JFCM Kayamkulam, is quashed.