(1) Heard both sides.
(2) This petition under section 482 of crpc has been filed for quashing the order of the learned vth metropolitan magistrate, visakhapatnam, dated 26 - 4 - 1997 taking cognizance of offence under sections 494 and 495 of ipc against respondents 1 to 3 herein on the basis of charge - sheet filed by the station house officer, ii town police station, law and order, visakhapatnam in crime no. 215 of 1996.
(3) Strangely, it is the de facto complainant in the case who has come up with this petition for quashing the order of the learned magistrate for taking cognizance of the offence against the accused.
(4) The learned counsel for the petitioner sri s. Kishore, advocate from visakhapatnam, contends that section 198 of cr. Pc prohibits the court from taking cognizance of offences under sections 494 and 495 of ipc except upon a complaint made by some person aggrieved by the offence. In this case, as the aggrieved person is the wife of accused no. 1, the court can take cognizance of the offence on the basis of complaint by the wife or on the basis of complaint made on her behalf by her father, mother, brother, son sister 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. The contention of the learned counsel for the petitioner is that the magistrate cannot take cognizance of offence under sections 494 and 495 of ipc on the basis of the report filed by the police under section 156 (2) of cr. Pc. In this case, this is exactly what the learned magistrate has done inasmuch as he has taken cognizance of the offence on the basis of the charge sheet filed by the police.
(5) The apprehension of the learned counsel for the petitioner is that the accused may at the end of the trial challenge the very act of taking cognizance of the case by the magistrate on the basis of the charge - sheet filed by the police which may result in acquittal of the accused. The apprehension of the learned counsel appears well founded.
(6) It appears that earlier, the petitioner filed a complaint under section 200 of cr. Pc before the magistrate making allegations of certain offences and the learned magistrate forwarded the complaint for investigation to the police concerned. The police after investigation filed the charge - sheet, as stated above.
(7) At this stage, it may be pointed out that even without authorisation under section 156 (3) of cr. Pc, offences under sections 494, 495 and 496 of ipc having been rendered cognizable and non - bailable by virtue of the code of criminal procedure (amendment act, 1992) under which the entries in the first schedule have been amended showing the offences under sections 494, 495 and 496 of ipc as cognizable and non - bailable, police had the power to investigate. Thus, as pointed out by the learned public prosecutor, there is no illegality attached to the investigation of these offences by the police.
(8) But, the question is, as pointed out by the learned counsel for the petitioner, in view of the proviso under section 198 of cr. Pc, which has not been amended concomitantly with the amendment in the first schedule in respect of offences under sections 494, 495 and 496 of ipc, whether a magistrate can take cognizance of these offences on the basis of the charge - sheet filed before him, by the police.
(9) The amendment in the first schedule referred to above empowers the police to investigate into these offences inasmuch as they have been shown as cognizable offences but in the teeth of very specific prohibition in section 198 of cr. Pc against taking of cognizance of these offences by the magistrate on the basis of anything other than the complaint filed by the wife or one of the relatives mentioned in section 198 of cr. Pc, the taking of cognizance of offence by the magistrate on the basis of the charge - sheet does not appear to be inconsonance with section 198 of cr. Pc.
(10) Under the circumstances, there is no escape from holding that the learned magistrate erred in taking cognizance of the offence under sections 494 and 495 of ipc on the basis of the charge - sheet filed by the police.
(11) In the result, the order of the learned magistrate taking cognizance of these offences dated 26 - 4 - 1997 is set aside. The learned magistrate is directed to consider the question of taking cognizance of offences in question on the basis of the complaint filed by the petitioner herein and if the magistrate takes cognizance he shall follow the procedure prescribed in chapter xv of the cr. Pc. However, it is open to the learned magistrate to look into the material brought out during the investigation into these offences by the police for the purpose of ascertaining whether there is sufficient material for proceeding against the accused.
(12) With the above directions, the criminal petition is allowed.