Mavuri Rani Veerabhadramma Kandarpa Prameela Mavuri Prameela v. The State Of A.P & Anr.

Dr. G. Yethirajulu, J.:— This is a reference made by a learned single Judge of this Court to answer the question

“whether the police can investigate and file a charge sheet for the offence under Section 494 of I.P.C in view of the bar created under Section 198 of Cr. P.C”

2. The learned Judge, made the above reference by observing that this issue was not decided either by a Division Bench of this Court or by the Supreme Court. To answer this reference, it is essential to verify that the provisions of law and the legal position regarding this aspect.

3. Section 494 I.P.C reads as follows:

“494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and 35 shall also be liable to fine.”

4. Section 198 of Cr. P.C reads as follows:

“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 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 authorized 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…………………………”

5. Section 155 of Cr. P.C reads as follows:—

“155. Information as to non-cognizable cases and investigation of such cases:— (1) when information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer, in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.”

6. As the offence under Section 494 of I.P.C is made cognizable, the police has every power to take cognizance of the offence and investigate into the case. But, there is a corresponding provision under Section 198 of Cr. P.C which mandates that the court shall take cognizance of the offence under Chapter XX upon a complaint filed by the aggrieved person. But this section was not amended enabling the court to take cognizance of the offence upon a police report.

7. In Mamidala Ramesh v. State (1) 2003 (1) ALD (Crl.) 387 (AP) a learned single Judge of this court observed that though the offence under Section 494 of I.P.C has been made cognizable by A.P Amendment Act of 1992, Section 198 of Cr. P.C was not amended, therefore, the Court cannot take cognizance of the offence under Section 494 of I.P.C on a police report. The learned single Judge further observed that in view of the specific bar imposed by Section 198 of the Code, it is doubtless that a Magistrate has no power to take cognizance of an offence under Section 494 IPC basing on a police report-charge sheet, therefore, it is desirable to have appropriate amendment to Section 198 of the Code also in this regard.

8. In K. Vijaya Lakshmi v. K. Lakshminarayana (2) 2000 (2) ALD (Crl) 184, a learned single Judge of this Court, while considering the aspect of the applicability of Section 198 of Cr. P.C to the offence punishable under Section 494 of I.P.C, held as follows:

“Section 198 of Cr. P.C contemplates that if the offence is under Section 494 IPC, then the Magistrate is prohibited from taking cognizance of such offence, except on a complaint made by some person aggrieved by the offence.”

9. In the case covered by the above decision, the Magistrate, before whom the complaint was filed, without examining the complainant and his witnesses, forwarded the complaint for investigation by the police under Section 156(3) of Cr. P.C On receiving the complaint, the police registered the crime and investigated the case. On conclusion of the investigation, a charge sheet has been filed against the accused before the Magistrate. The learned Magistrate took cognizance of the case against the accused on the basis of the charge sheet. The learned Judge held that the argument of the counsel for the petitioner that cognizance must be deemed to have been taken on the basis of the complaint filed by the de facto complainant and that the police report must be presumed to have been used by the Magistrate only for ascertaining the existence of prima facie case to enable him to proceed against the accused permitted to conduct the prosecution, as if the case was instituted on a complaint filed by her, cannot be accepted in view of the prohibition under Section 198 of Cr. P.C in taking cognizance of the offence under Section 494 of I.P.C

10. In Darla Srinivas v. Darla Sri Devi (3) 2000 (1) ALT (Crl.) 265 (A.P), the question whether a Magistrate can take cognizance of the offences under Sections 494 to 496 of I.P.C on the basis of the charge sheet filed before him by the police in view of the proviso under Section 198 of Cr. P.C which has not been amended concomitantly with the amendment in the first schedule came up for consideration. The learned single Judge of this Court held as follows:

“The amendment in the first schedule in respect of the offences under Sections 494 to 496 of IPC 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. P.C 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. P.C 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. P.C”

11. In G. Narasimhan v. Chokkappa (4) (1972) 2 SCC 680 : AIR 1972 SC 2609, a complaint was filed against three daily newspapers i.e, the Dinmani, the Hindu and the Indian Express under Section 500 and 501 of I.P.C by the member of DMK party which has taken cognizance by the Magistrate after recording the complainant's statements. The Editors of the above newspapers, who are unsuccessful in challenging the cognizance taken by the Magistrate before the High Court, filed an Appeal before the Supreme Court with Special Leave. On granting the Leave, the Supreme Court considered the aspect that who is aggrieved person entitled to maintain the complaint within the meaning of Section 198 of Cr. P.C and held that: “Section 198, thus, lays down an exception to the general rule that a complaint can be filed by anybody whether he is an aggrieved person or not, and modifies that rule by permitting only an aggrieved person to move a magistrate in cases of defamation. The section is mandatory, so that if a magistrate were to take cognizance of the offence of defamation on a complaint filed by one who is not an aggrieved person, the trial and conviction of an accused in such a case by the Magistrate would be void and illegal.”

12. In State of Orissa v. Sharat Chandra Sahu (5) (1996) 6 SCC 435 : AIR 1997 SC 1, the Supreme Court, while considering the scope of Sections 155 and 198(1)(c) of Cr. P.C, held that:

“In a case where a complaint comprising two offences, one cognizable and another non-cognizable concerning the marriage was presented, it is not proper to quash the complaint on the ground of non-filing of the complaint by aggrieved party. Under Section 155(4), police can in case of complaint comprising of cognizable and non-cognizable offences, investigate non-cognizable offence also as cognizable offence irrespective of the fact as to who filed it.

Sub-Section 4 creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.

Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.”

13. In Praveen Chandra Mody v. State of A.P (6) AIR 1965 SC 1185, the Supreme Court held that:

“While investigating a cognizable offence and presenting a charge-sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same fact and including them in the charge-sheet.”

14. In Radharapu Ravinder v. State of A.P (7) 2005 (2) ALD (Crl) 713 (AP), a learned single Judge of this Court held that:

“The bar contained under Section 198(1) of the Code has no application for the offence committed under Section 494 of Chapter XX of IPC if the said offence is coupled with other cognizable offence where the police are empowered to investigate and file their report/charge-sheet. However, insofar as the offence under Section 494 IPC in the State of Andhra Pradesh is concerned, it is a cognizable offence and even if the offence is committed under Section 494 IPC alone upon a report of such facts by the police, the Magistrate is empowered to take cognizance under Section 190(1)(b) of the Code. Under Section 190(1)(b) of the Code the Magistrate of First Class is empowered to take cognizance of the offence in respect of any cognizable case upon a police report of such facts. Therefore, a legal fiction has been created by reason of making the offence under Section 494 IPC as a cognizable offence and if that be so, the police officers are entitled to investigate the cognizable case under Section 156 of the Code and on completing such investigation the police is empowered to file a report under Section 173(2) of the Code and on filing of such report the Magistrate is empowered to take cognizance under Section 190(1)(b) of the Code. The fiction has been created by reason of 30 Section 198(1) of the Code prohibiting the Court to take cognizance except on a complaint made by the aggrieved person for the offence under Section 494 IPC; when the offence under Section 494 IPC is made as a cognizable offence, the Magistrate is empowered to take cognizance of the said offence even though there is a specific prohibition under Section 198(1) of the Code except upon a complaint made by some person aggrieved by the offence, but by reason where a case relates to two or more offences of which one is cognizable under Section 155(4) of the Code the non-cognizable offence also shall be deemed to be a cognizable offence and if that be so, the police is entitled to investigate the offence under, Section 494 IPC and Section 498-A IPC also.”

15. In D. Vijayalakshmi… v. D. Sanjeeva Reddy… (8) 2000 (2) ALD (Crl) 200, a learned single Judge of this Court also, while considering the aspect of the applicability of Section 198 of Cr. P.C to the offence punishable under Section 494 of I.P.C, and observed as follows:

“The charge-sheet has been filed by the Sub-Inspector of Police, Musheerabad for the alleged offences under Sections 498-A and 494 of the IPC. 498-A is cognizable and therefore the police can investigate and lay the charge-sheet ultimately if the investigation discloses the case against the accused of trial. What was non-cognizable offence under Section 494 was made cognizable in view of the State amendment brought to the First Schedule appended to the Criminal Procedure Code. The offence under Section 498-A of the IPC is cognizable but it not cognizable elsewhere in the country.

16. In Aramati Rama Devi v. Aramati Reddappa (9) 2005 (2) ALT (Crl.) 155 (AP), a learned single Judge of this Court held that:

“The terms “complaint” and “police report” are mutually exclusive. One cannot be the other and vis-a-vis, therefore, on a report submitted by the police in respect of the offences under Section 494 of I.P.C after investigation, the Court cannot take cognizance of the offence”

17. From the above legal position, the law is clear that the offence under Section 494 of I.P.C was made cognizable in view of the State amendment and the investigating agency is entitled to investigate the offence, but there are certain limitations for the court to take cognizance. Linder Chapter XIV of the Cr. P.C on such limitation is enjoined under Section 198 of Cr. P.C, which bars the Court from taking cognizance of any offence falling under Chapter XX of the Indian Penal Code. This bar enjoined under Section 198 of Cr. P.C is for the Court but not for the investigating agency. Although the investigating agency is at liberty to register a case and conduct investigation into the offence under Section 494 of the IPC, the Court is precluded from taking cognizance of the said offence in view of the mandatory provisions of Section 198 of the Cr. P.C There has been no amendment to Section 198 so as to bring the same in consonance with the State amendment brought to Section 494 of the IPC. Section 198 being a Legislation of the Parliament would prevail in the event of any inconsistency between the State law and Central law since both the subjects pertain to Concurrent List, therefore, taking cognizance by the court upon a charge sheet filed by the Investigating Officer is itself bad and it vitiates the entire trial. Thus it can be concluded that if a complaint is filed under Section 494 of I.P.C exclusively alleging that the accused committed bigamy, the bar under Section 198 of Cr. P.C is applicable and the court cannot take cognizance of the offence under Section 494 of I.P.C unless Section 198 is suitably amended. Though the State legislation amended the schedule making the offence under Section 494 of I.P.C cognizable, the legislation made by the Parliament in respect of Section 198 of Cr. P.C remained. In the event of any repugnancy between the two legislations, the legislation made by the parliament prevails, therefore, Section 198 of Cr. P.C still holds the field despite the State legislature made amendment to the schedule of Cr. P.C making Section 494 of I.P.C as cognizable. Suitable amendment has to be made to Section 198 of Cr. P.C Till then the Court is precluded from taking cognizance of the offence upon a report filed by the police.

18. But, in view of the provisions contained in Chapters 14 and 16 of Cr. P.C, there is a scope to enlarge the mandatory provision of Section 198 of Cr. P.C After filing of the complaint, the Magistrate may postpone taking of cognizance of the offence either by referring it to the police for investigation or by conducting an enquiry under Section 202 of Cr. P.C and taking cognizance subsequent to 202 enquiry or police investigation is also sufficient compliance of Section 198 of Cr. P.C

19. Chapter XV which contains Sections 200 to 203 deals with “Complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by Section 200 to examine the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case, upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct 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. Section 203 empowers the Magistrate to dismiss the complaint, if after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, if the Magistrate is of opinion that there is no sufficient ground for proceeding.

20. Chapter XVI deals with “commencement of proceedings before Magistrates” and Section 204 empowers a Magistrate to issue summons or a warrant as the case may be, to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.

21. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under Section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under Section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under Section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act 40 under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued. If the offence under Section 494 of I.P.C is pleaded along with other cognizable offences in respect of which the Court can take cognizance of such offence on filing of the charge sheet and when the police are empowered to investigate the cognizable offences along with non-cognizable offences under Section 155(4) of Cr. P.C, the Court is empowered to take cognizance of both the offences on police filing the charge sheet.

22. The Reference is answered with the following conclusions:

1. If a complaint is filed under Section 200 of Cr. P.C for the offence under Section 494 of I.P.C before a Magistrate, he may take cognizance of the offence or postpone the issue of process either by making enquiry into the case by himself or direct an investigation to be made by the police officer or other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground to proceed. If the complaint is referred to the police for 40 investigation and if the police files either the charge sheet showing that there is prima facie material to proceed against the accused or that there is no case to take cognizance of the offence, the Magistrate is empowered to take cognizance of the offence irrespective of the result of the investigation and it amounts to sufficient compliance of Section 198 of Cr. P.C

2. The police may also receive a complaint for the offence under Section 494 of I.P.C and register a crime. As per the amendment of the schedule, Section 494 of I.P.C is made cognizable and the police are empowered to investigate the case. But the Magistrate is precluded from taking cognizance of the offence under Section 198 of Cr. P.C on the charge sheet filed by the police, when a complaint is not presented before the Magistrate for taking cognizance of the offence.

3. If a complaint for the offence under Section 494 of I.P.C is lodged along with other cognizable offences before the police and if the police files a charge sheet, the Court can take cognizance of the offence under Section 494 of I.P.C also along with other cognizable offences by virtue of Section 155(4) of Cr. P.C