Crl. P. Nos. 554 of 2011. Case: Miriyala Divya Vs Govt. of A.P.. High Court of Andhra Pradesh (India)

Case NumberCrl. P. Nos. 554 of 2011
CounselFor Appellant: M. Chalapathi Rao, Adv. and For Respondents: Public Prosecutor and B. Nalin Kumar, Adv.
JudgesT. Sunil Chowdary, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 154, 155, 155(2), 155(4), 156, 156(1), 156(3), 173(2), 190(1)(b), 198, 198(1), 198(1)(c), 198A, 2(c), 200, 320, 482; Constitution of India - Articles 141, 20(2), 200, 246, 254, 254(2); Indian Penal Code 1860, (IPC) - Sections 201, 302, 34, 420, 468, 494, 495, 496, 498A
Judgement DateSeptember 19, 2014
CourtHigh Court of Andhra Pradesh (India)

Order:

  1. Accused Nos. 1, 2, 3, 4, 6, 7, 8, 9 in C.C. No. 147 of 2010 on the file of VII Additional Sessions Judge (FTC), Guntur have filed these two Criminal Petitions seeking to quash the proceedings against them.

  2. Since both the criminal petitions arise out of the same calendar case, I am inclined to dispose of these petitions by this common order.

  3. The factual background leading to filing of these two petitions is, briefly, as follows:

  4. Eesa Agnes (hereinafter referred to as the deceased) married A.1 against the will and wish of her parents. She died on 10.08.2008. On 16.11.2008 the mother of the deceased by name Smt. Kattepogu Indira Devi (hereinafter referred to as the de-facto complainant) lodged a complaint with the Station House Officer, Mangalagiri Police Station, alleging that A.1 married A.2 on 04.07.2008 during the subsistence of valid marriage of A.1 with the deceased. It is further alleged that on 14.10.2008, A.1 obtained second marriage certificate with an intention to screen away the evidence in relation to the marriage of A1 with A2 performed on 04.07.2008. It is further alleged that the deceased was subjected to cruelty for additional dowry. Thereupon, the Station House Officer, Mangalagiri Town Police Station registered a case in Cr. No. 271 of 2008 for the offences punishable under Sections 498-A, 494, 420 and 201 r/w. 34 of IPC against the petitioners. After completion of investigation, the investigating officer laid charge sheet against the petitioners under 468, 201, 498-A, 498-A, 494 and 420 r/w. 34 of IPC. The learned Additional Judicial Magistrate of I Class, Mangalagiri, after careful scrutiny of the material available on record, has taken cognizance of the offences under Sections 498-A, 494, 468, 201 and 420 read with 34 of IPC against the petitioners and numbered the charge sheet as C.C. No. 147 of 2010. Subsequently, the matter was transferred to the VII Additional Sessions Judge Court (FTC), Guntur as per the orders of the District Court, Guntur.

  5. The predominant contention of the learned counsel for the petitioners, Sri M. Chalapati Rao, is two fold viz., 1) The learned Magistrate has taken cognizance of the offences against the petitioners under Sections 494 and 498-A of IPC in violation of Section 198 Cr. P.C. in general and Section 198(1)(c) in particular, 2) the allegations made in the charge sheet do not constitute the offences alleged to have been committed by the petitioners under Sections 494 and 498-A of IPC.

  6. Per contra, the learned counsel for the de-facto complainant Sri B. Nalin Kumar submitted that the trial court has not committed any illegality or irregularity while taking cognizance of the offences against the petitioners in view the A.P. State Amendment to Section 494 I.P.C. He further submitted that the allegations made in the charge sheet are prima facie sufficient to proceed further against the petitioners.

  7. The learned Public Prosecutor submitted that this is not a fit case to quash the proceedings, at this stage, viewed from the factual and legal angles. He further submitted that in view of availability of alternative remedy, the present petition is liable to be dismissed.

  8. The learned counsel for the petitioners submitted that this Court, while exercising inherent jurisdiction under Section 482 Cr. P.C. can quash the proceedings. In support of first contention, he has drawn my attention to the following decisions:

    i. Suraj Lal Jaiswal Vs. State of U.P., wherein the Hon'ble apex Court held as under:

  9. I have gone through all those statements. There is none of the witnesses who could say that marriage with Smt. Meena Jaiswal was performed in his presence and any ritual as provided in the Hindu Law for a valid marriage, had taken place. Consequently, by the evidence collected by the investigating officer the second marriage is not proved nor there is even a prima facie evidence regarding the said marriage.

  10. Consequently, the application is liable to be allowed and it is hereby allowed. The proceedings under charge sheet in question under Section 494 I.P.C. (case No. 2859/1989 pending in the court of Chief Judicial Magistrate, Allahabad State v. Suraj Lal Jaiswal, police station Attarsuiya, district Allahabad) are hereby quashed.

    ii. State of Haryana Vs. Bhajan Lal, wherein the Hon'ble apex Court held as under:

  11. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

  12. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

  13. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

  14. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

  15. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

  16. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

  17. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

  18. Let me consider the facts of the case on hand in the light of the principle enunciated in the cases cited supra.

  19. It is needless to say that Chapter XX of IPC deals with offences relating to marriage. A perusal of Section 198 Cr. P.C. clearly demonstrates that the court can take cognizance of offences enumerated under Chapter XX of IPC basing on the complaint made by the aggrieved person. As per Section 198(1)(c) Cr. P.C., when a wife is aggrieved of the offence under Section 494 or 495 IPC, the complaint may be made by herself, or on her behalf by her father, mother, brother, sister, son or daughter, or by her fathers or mothers brother or sister.

  20. It is not in dispute that the mother of deceased lodged the complaint to the police on 16.11.2008. By any stretch of imagination, it cannot be presumed that the de facto complainant submitted the report to the police with the consent of the deceased as she died on 10.08.2008. The fact remains that the de facto complainant has not followed the procedure prescribed under Section 198 Cr. P.C. On this point, the learned counsel for the petitioners has drawn my attention to the following decisions:

    i. State Vs. Gangamma, wherein the Hon'ble Apex Court held at as follows:

  21. For the reasons mentioned above, the authority conferred under Section 198 Cr. P.C. on a relative specified in the explanation to that section to file a complaint on her behalf, must be understood as being one that could be exercised only when she is alive and not after her death. In the present case, admittedly, Jayalakshmiyamma had died by the time her elder brother filed the complaint. Therefore, the complaint cannot be regarded as one made by a person authorised under Section 198 Cr. P.C. and the learned Magistrate could not take cognizance of the offence.

    ii. Suraj Lal Jaiswal Vs. State of U.P., wherein the Hon'ble Apex Court held at as follows:

  22. Thus, it clearly lays down that complaint should be made by the aggrieved person to the Magistrate, who shall follow the procedure laid down in Section 200 Cr. P.C. onwards and it does not include a police report, i.e. report under Section 173(2) Cr. P.C. No doubt, in the Explanation to Section 2(d) a report by police officer, which discloses a non cognizable offence, shall be deemed to be a complaint but this explanation is not applicable in cases under Chapter XXII of the Indian Penal Code. Thus, there was no complaint in the present case and charge sheet itself is not maintainable.

    12 As per the principle enunciated in the cases cited supra, the Magistrate has no power to take cognizance of offence under Section...

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