Karnataka High Court

Sri. Rajashekara K S vs The State Of Karnataka on 29 May, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                     CRL.P No. 6536 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 29TH DAY OF MAY, 2024

                                           BEFORE
                          THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                             CRIMINAL PETITION NO. 6536 OF 2017
                   BETWEEN:

                   SRI. RAJASHEKARA K S,
                   S/O SADASHIVAPPA GOWDA,
                   AGED ABOUT 60 YEARS,
                   R/AT: ALAGERI MANDRI,
                   HARIDRAVATHI POST,
                   HOSNAGARA TALUK - 577 418.
                                                               ...PETITIONER
                   (BY SRI. B.N. SHETTY, ADVOCATE)
                   AND:

                   1.    THE STATE OF KARNATAKA,
                         REPRESENTED BY ITS
Digitally signed         STATE PUBLIC PROSECUTOR,
by                       HIGH COURT OF KARNATAKA,
NARAYANAPPA
LAKSHMAMMA               BENGALURU - 560 001.
Location: HIGH
COURT OF           2.    SMT SAROJA H V,
KARNATAKA
                         W/O RAJASHEKARA,
                         AGED ABOUT 60 YEARS,
                         R/AT RANGANATHASWAMY
                         TEMPLE ROAD,ANANDAPURAM
                         SAGAR TALUK,
                         SHIVAMOGGA DISTRICT - 577 403,
                                                            ...RESPONDENTS

                   (BY SRI. M.R. PATIL, HCGP FOR R1
                       SRI. BIMBADHARA M. GOWDAR, ADVOCATE FOR R2)
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                                          NC: 2024:KHC:18171
                                      CRL.P No. 6536 of 2017




     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO QUASH ALL ENTIRE
PROCEEDINGS INITIATED BY THE ADDITIONAL CIVIL JUDGE
AND J.M.F.C., SAGAR, SHIVAMOGGA IN C.C.NO.185/2014 IN
RESPECT OF THE PETITIONER IS CONCERNED.

    THIS   PETITION, COMING            ON  FOR FURTHER
ARGUMENTS, THIS DAY, THE               COURT MADE  THE
FOLLOWING:
                           ORDER

1. The petitioner is before this Court seeking for following

relief:

"Wherefore, it is prayed that this Hon'ble Court may be pleased to allow this petition and quash all entire proceedings initiated by the Additional Civil Judge and JMFC, Sagar, at Shivamoga in C.C.No.185/2014 in respect of the petitioner is concerned in the interest of justice and equity".

2. The second respondent claims to be the legally wedded

wife of the petitioner claiming that the marriage

between them has been solemnized on 12.05.1980 had

filed a private complaint under Section 200 of Cr.P.C.

on 19.04.2014, which came to be numbered as

PCR.No.14/2014.

3. The learned Magistrate having taken cognizance of the

complaint made directed the registration of a case and

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referred the matter for investigation to the concerned

CPI of Sagar Rural Police Station and directed to submit

a report by 24.05.2014. Report having been

submitted, the matter was placed before the Court on

10.06.2014, when the Magistrate directed the

registration of case, however, in the said order sheet, it

is mentioned that cognizance has been taken. It is this

order, which is challenged, in the present petition.

4. Sri. B.N. Shetty, learned counsel appearing for the

petitioner would submit that the Magistrate could not

have taken cognizance of the offences on the basis of a

charge sheet, which has been submitted by the

jurisdictional police after investigation. In this regard,

he relies upon the decision of the Hon'ble High Court of

Andhra Pradesh in Crl.P.No.745/2002 in the case of

MAMIDALA RAMESH VS STATE, more particularly

paragraph 7 there of is reproduced hereunder for the

purpose of reference.

7. It is not in dispute that Sec. 494 I.P.C. falls under Chapter XX of the Indian Penal Code dealing with offences relating to marriage. By

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virtue of the amendment A.P. Act No. 3 of 1992, the said offence was made cognizable and non-bailable. This is the ground on which the learned Additional Public Prosecutor with all vehemence had contended that the Police have power to investigate into such a cognizable offence and hence the present proceedings need not be quashed at this stage. In K. Vijaya Lakshmi v. K. Lakshminarayana, (2) 2000 (2) ALD (Crl) 184, the question relating to the specific prohibition for taking cognizance of any offence punishable under Chapter XX of the Indian Penal Code, except upon a complaint made by a person aggrieved had been dealt with. Likewise, in Vijaya Lakshmi v. Sanjeev Reddy, (3) 2000 (2) ALD (Crl) 200 the bar imposed by Section 198 of the Code had been dealt with. 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 I.P.C. based on a police report - charge sheet. It is also pertinent to note that though the amendment A.P. Act No. 3 of 1992 had brought in an amendment to the First Schedule of the Code making the aforesaid offence cognizable and non-bailable, Section 198 of the Code was left untouched without any corresponding amendment. In view of the situation referred to supra. It is desirable and advisable to have appropriate amendment to Section 198 of the Code also in this regard.

5. He also relies upon another judgment of Hon'ble High

Court of Andhra Pradesh in the case of

D.VIJAYALAKSHMI VS. D. SANJEEVA REDDY

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reported in 2001 CRL.LJ.1583 more particularly

paragraph 3 thereof is reproduced hereunder for the

purpose of reference.

"3. Coming to the second point, the charge sheet has been filed as aforesaid by the Sub- Inspector of Police, Musheerabad for the alleged offences under Section 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 State amendment having received the assent of the President is valid and would prevail even in the wake of any repugnancy between the State Law and Central Law in so far as the State of Andhra Pradesh is concerned. The offence under Section 498-A of the IPC is cognizable but it is not cognizable elsewhere in the country. In view of the State amendment the investigating agency is entitled to investigate the offence alleged under Section 494 of the IPC. But that is not the end of the matter. There are certain limitations for the Court to take cognizance. As could be seen from Chapter XIV of the Cr. P.C. one such limitation is enjoined under Section 198 of the Cr. P.C. Section 198 of the Cr. P.C. bars the Court from taking cognizance of any offence falling under Chapter XX of the Penal Code, 1860 and relating to institution of marriage with the avoid object of preserving the institution of marriage. This bar enjoined

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under Section 198 of Cr. P.C. is for the Court but not for the investigating agency. Although the 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. It may be reiterated here that bar is for the Court but not for the investigating agency. There has been no amendment to Section 198 so as to bring the same in consonance with the State as has been done in respect of the offence under Section 498A by incorporating Section 198-A of I.P.C. 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 the Central law since both the subjects pertains to Concurrent List. The initial cognizance taken by the Court upon the charge sheet filed by the investigating agency, namely, the Sub Inspector of Police, Musheerabad Police Station, itself is bad. That clearly vitiates the entire trial and the eventual conviction by the trial Court of the 1st respondent herein. This point has not been addressed by both the Courts below. Of course, on appreciation of the evidence available on record, the appellate Court has come to a clear conclusion that the offence under Section 494 of the IPC has not been made out. In any view of the matter, this revision directed against the acquittal cannot sustain."

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6. By relying on both the above judgments, his

submission is that the Magistrate could not have taken

cognizance on the basis of charge sheet filed by the

police since the offence alleged come under chapter XX

of the IPC and in terms of Section 198 of Cr.P.C, there

is a bar on the Courts to take cognizance for any

offence falling under Section XX of IPC. His submission

is that the Court could only take cognizance on the

basis of a complaint and not on the basis of

investigation of the Court or the charge sheet filed by

the jurisdictional police.

7. Learned counsel for respondent No.2 - Defacto

complainant would submit that the Court has not taken

cognizance on the basis of the investigation

report/charge sheet but had in fact taken cognizance

on the date of presentation of the private complaint

and thereafter referred the matter for investigation. It

is after investigation, the summons were directed to be

issued to the accused after directing registration of the

case. There is no cognizance taken. The mentioning of

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the word cognizance in the impugned order is by

mistake. Cognizance having already been taken on

19.04.2014. There is no reason to take cognizance

once again vide the impugned order.

8. Heard the learned counsel for the petitioner and

learned counsel for respondents and perused the

papers.

9. Sub-section (1) of Section 198 of Cr.P.C is reproduced

hereunder for the purpose of reference since the other

sub sections are not relevant for the purpose

consideration of the present case.

Sub-section (1) of Section 198 reads as under:

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

10. A reading of Sub-Section (1) of Section 198 of Cr.P.C.

would indicate that there is a bar on the Court to take

cognizance of any offence punishable under Chapter XX

of the Indian Penal Code except upon a complaint

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made by some person aggrieved by the offence. There

are further conditions, which have been provided in

terms of the proviso to Sub Section (1) of Section 198

of Cr.P.C. It is relying on such provision and the

aforesaid judgments of Hon'ble High Court of Andhra

Pradesh that Sri. B.N. Shetty, learned counsel for the

petitioner would submit that the Magistrate could not

have taken cognizance of the charge sheet submitted

by the police. The relevant paragraphs of the

judgments in both the aforesaid cases have been

extracted herein above, which have been relied upon

by the learned counsel for the petitioner. What would

be a relevance is the facts leading up to that finding. It

is paragraph No.3 of Madimala Ramesh's case

referred supra which would be relevant for the purpose.

Said paragraph 3 is reproduced hereunder for the

purpose of reference.

3. The petitioner/accused in Crime No. 34/2002 of Choppadandi Police Station filed divorce petition O.P. No. 64/2001 on the file of Senior Civil Judge, at Karimnagar against 2nd respondent praying the Court to pass a

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decree for divorce by dissolving the marriage with the 2nd respondent and the learned Judge passed a decree accordingly on 21-9- 2001. It is further stated that the 2nd respondent/defacto-complainant filed a complaint on 19.2.2002 before the Superintendent of Police, Karimnagar against the petitioner alleging that the petitioner had married another lady notice 15.2.2002 and the said complaint was forwarded to the Sub- Inspector of Police. Choppadandi and after receiving the complaint, the Sub-Inspector of Police, Choppadandi in Crime No. 34/2002, dated 20.2.2002 had registered the same under Section 494 IPC. It is further stated that the 2nd respondent herself in her complaint had admitted that a divorce decree had been granted by the learned Senior Civil Judge, Karimnagar and in the said circumstances the present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973, hereinafter referred to in short as "Code" for the purpose of convenience, to quash the proceedings in Cr. No. 34/2002 of P.S. Choppadandi.

11. Similarly, it is paragraph No.1 of D. Vijayalakshmi's case referred supra, which would be relevant for reference, said paragraph No.1 is reproduced hereunder for the purpose of reference.

1. This revision petition is directed against the acquittal of the 1st respondent herein of the charge under Section 498 of the I.P.C., by the learned Special Judge for trial of Cases under Essential Commodities Act- cum-III Addl. Metropolitan Sessions Judge,

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Hyderabad by his judgment dated 30-1- 1999 in Criminal Appeal No. 73/98. The 1st respondent and eleven (11) others were charge sheeted by the State through the Sub-Inspector of Police, Musheerabad Police Station for the alleged offences under Section 498(A) and 494 read with 109 of the I.P.C. Cognizance was taken by the learned XXII Metropolitan Magistrate-cum-Mahila Court, Hyderabad for the said offences against all the accused in C.C. No. 342/1995. Pursuant to the summons issued by the Court all the accused appealed before the trial Court and faced the eventual trial. At the end of the trial and after examining the witnesses under Section 313 of the Cr. P.C., the trial Court acquitted all the accused under Section 498-A of the I.P.C. and convicted A.1 alone under Section 494 of the I.P.C. The other accused A.2 to A.12 are acquitted of the charge under Section 494 redd with 109, I.P.C. A.1 who is the 1st respondent herein was sentenced to suffer Rigorous Imprisonment for two years and was further sentenced to pay a fine of Rs. 3,000/- and in default to suffer simple imprisonment for four months. Having been aggrieved by the conviction and sentence passed against him, he preferred the Criminal Appeal No. 73/98. As aforesaid, the learned Sessions Judge upon considering the evidence on record and after having heard the counsel on either side allowed the Criminal Appeal and thereby acquitted the appellant of the charge under Section 494 of the I.P.C. As against the said acquittal, the defacto cbmplainant, P.W. 1 in the case preferred the present revision.

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12. A perusal of both the above would indicate that in both

those cases, the complaint was filed by the complainant

before the jurisdictional police and there was no private

complaint filed before the jurisdictional Court. It is on

the basis of complaint filed before the police, the police

proceeded with the investigation and submitted a

charge sheet, on which basis, cognizance is taken by

the jurisdictional police.

13. In the present case, a private complaint under Section

200 of Cr.P.C. has been filed by the complainant before