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Kerala High Court · body

1986 DIGILAW 479 (KER)

varghese v. annamma

1986-12-10

THOMAS

body1986
Judgment :- 1. Facts may be stranger than fiction. The allegation in this case sounds like a fiction, in that a mother who crossed the age of fifty left her husband, sons and daughters-in-law and she eloped with a young man. The aggrieved husband complained to the Magistrate. The complaint was forwarded to the police under S.156(3) of the Code of Criminal Procedure (for short'the Code'). The police, after investigation sent up a final report for offences under S.406, 498 and 109 of the IPC. against the woman and her alleged paramour. The trial Magistrate later dropped S 498 of the IPC. from the charge when be discovered that cognizance of the said offence should not have been taken on a police report. This revision petition is filed by the husband against the order refusing to take cognizance of the offences under S.497 and 498 of the Penal Code. 2. According to the petitioner, his wife Annamma (first respondent) was found missing on 6-2-1984 and after hectic search he came to know that she was enticed away by the second respondent and that the first respondent misappropriated some gold ornaments which the petitioner gave to her. The further allegation is that both the respondents had spent several nights together in liaison with each other. The petitioner filed the complaint before the Judicial Magistrate of the 1st Class, Chengannur, alleging offences under S.406, 497 and 109 of the Penal Code. The Magistrate forwarded the complaint to the Sub Inspector of Police, Koippuram under S.156(3) of the Code. When the charge sheet was filed by the police S.498 of the Penal Code was included instead of S.497. The Magistrate framed a charge against the respondents for the offences mentioned in the police report. Later the case had to be transferred to the file of the Judicial Magistrate of the 1st Class, Pathanamthitta consequent to the re-allocation of areas with the formation of the new judicial District of Pathanamthitta. The Chief Judicial Magistrate, Pathanamthitta took over the case to his file. On 12-6-85 the said Magistrate made a note that in view of the express bar under S.198 of the Code, the offence under S.498 of the Penal Code should not have been taken cognizance of. So he framed a fresh charge for the offence under S.406 read with S.34 of the IPC. On 12-6-85 the said Magistrate made a note that in view of the express bar under S.198 of the Code, the offence under S.498 of the Penal Code should not have been taken cognizance of. So he framed a fresh charge for the offence under S.406 read with S.34 of the IPC. At this stage, the petitioner came to this Court with a petition for revision. 3. There is no dispute, and it is not disputed either, that a Magistrate cannot take cognizance of the offence under S.497 or 498 of the Penal Code on a police report. S.198 of the Code is explicit in language that it imposes an inhibition against taking cognizance of any offence punishable under Chap.20 of the Penal Code "except upon complaint made by some person aggrieved by the offence". The petitioner who is the husband of the first respondent is evidently the aggrieved person in this case. On his part he did what he could by filing the complaint before the Magistrate. The learned counsel for the first respondent contended that since the complaint had been forwarded to the police for investigation and since the police have filed a final report the complaint cannot now be revived. 4. It is obvious that the Magistrate has not taken cognizance of the offence under S.497 of the IPC. when the complaint was filed. Sending the complaint to the police under S.156(3) of the Code is not an action in pursuance of taking cognizance of the offence. Under S.190 of the Code a Magistrate can take cognizance of an offence on the basis of one of the sources of information referred to therein. Though this expression "take cognizance of any offence" has not been defined in the Code, the Supreme Court has laid down principles governing the real import of that expression. Supreme Court approved the approach made by Das Gupta. J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR (37) 1950 Calcutta 437) in ascertaining the contours of the process of taking cognizance of an offence. Supreme Court approved the approach made by Das Gupta. J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR (37) 1950 Calcutta 437) in ascertaining the contours of the process of taking cognizance of an offence. The principle laid down in that decision is to the following effect: 'Before it can be said that any Magistrate has taken cognizance of any offence under S.190(1)(a), be must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter. When the Magistrate applies bis mind not for the purpose of proceeding under the subsequent sections of the Chapter, but for taking action of some other kind, e. g. ordering investigation under S.156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence " The aforesaid principle gained approval by the Supreme Court first in R. R Chari v. The State of Uttar Pradesh (AIR (38) 1951 SC 207). It was again reiterated in Narayandas Bhagwandas Madhavdas v The State of West Bengal (AIR 1959 SC 1118) and in Tula Ram and others v. Kishore Singh (AIR 1977 SC 2401). Thus it has become a settled proposition that by forwarding a complaint under S.156(3) of the Code the Magistrate does not take cognizance of the offence nor does be do it after taking cognizance of the offence mentioned in the complaint. The action taken under S.156(3) is previous to the stage of taking cognizance of the offence. Once he takes cognizance of the offence on a com plaint as envisaged in S.190 of the Code, a direction to the police to investigate can be made only under S.202 of the Code. But such an investigation is not for the purpose of filing a final report as provided under S.173(2), but only to aid the court for the purpose of deciding whether or not there is sufficient ground for proceeding further. When offence which a Magistrate cannot take cognizance of, except on a private complaint by the aggrieved person, is brought to the notice of the Magistrate on a private complaint, he may either take cognizance of those offences then and there, or be may defer it to a future date. When offence which a Magistrate cannot take cognizance of, except on a private complaint by the aggrieved person, is brought to the notice of the Magistrate on a private complaint, he may either take cognizance of those offences then and there, or be may defer it to a future date. Even if he sends the complaint to police under S.156(3) (which discloses only offences under Chap.20 of the Penal Code) the police report can be used only to help him to decide whether be should take cognizance to those offences on the private complaint itself. Even after he gets the police report it is open to him to take cognizance of the offence on the strength of the complaint. But if be refuses to take such cognizance he must write an order with his reasons. If be takes cognizance he has to follow the procedure provided in S.200 of the Code. 5. It is next contended that since the complaint showed both the categories of offences (offences which be can take cognizance only on a private complaint and offences which he can take cognizance even on a police report) the Magistrate is not obliged to split up the complaint adopting two different procedures. I do not find any bar in any of the provisions of the Code for adopting that course. But the more practical course to be adopted in such instances is to take cognizance of the offences of both the categories disclosed in the complaint without sending it to the police for investigation under S.156(3) of the Code. If the Magistrate feels that mere complaint and the sworn statement of the complainant or of witnesses (if any) are not sufficient to issue process to the accused, he can either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit as provided in S.202(1) of the Code. A complaint disclosing both the categories of offences, if sent to the police for investigation under S.156(3) of the Code will eventually lead to the situation where a splitting up of the complaint would become inevitable. To avoid such anomaly, it would be advisable to take cognizance of the offences disclosed in such complaints without sending them to the police under S.156(3) of the Code. 6. To avoid such anomaly, it would be advisable to take cognizance of the offences disclosed in such complaints without sending them to the police under S.156(3) of the Code. 6. There is no merit in the contention that once a police report has been sent up after investigation under S.156(3) no further step can be taken on the complaint or that the complaint will be merged in the police report. A similar contention was raised in Tula Ram's case (AIR. 1977 SC 2401). It was contended that "once the Magistrate chooses to act under S.156(3) of the Code it was not open to him to revive the complaint, take cognizance and issue process against the accused. It was also contended that "in such a case court has two alternatives and two alternatives only, either he could direct re-investigation if he was not satisfied with the final report of the police or he could straightaway issue process to the accused under S.204". Repelling those contentions Their Lordships observed as follows: "Attractive though the argument appears to be, we are however unable to accept the same. In the first place, the argument is based on a fallacy that when a Magistrate orders investigation under S.156(3) the complaint disappears and goes out of existence" 7. The decision of a single bench of this Court has been brought to my notice by the learned counsel for the petitioner. It is reported in State of Kerala v. 'Wilfred (1968 KLT 57). The question raised in that case was whether the complaint forwarded by the Magistrate to the police for investigation under S.156(3) of the Code would continue its character as a complaint even though the police sent op final report charging the case after investigation. Sadasivan, J. held that forwarding the complaint under S.156(3) of the Code will not change the character of the complaint. He observed that "In other words, the complaint originally filed will not, on that account, assume a different garb when the police report is received. The proceedings will continue to be proceedings instituted on complaint." Though the principle had been broadly stated in the said decision the question involved therein was not regarding the ban of taking cognizance of certain offences mentioned in S.195(2) and 199 of the Code. 8. The result of the aforesaid discussion is the following. The proceedings will continue to be proceedings instituted on complaint." Though the principle had been broadly stated in the said decision the question involved therein was not regarding the ban of taking cognizance of certain offences mentioned in S.195(2) and 199 of the Code. 8. The result of the aforesaid discussion is the following. The Chief Judicial Magistrate was right in not taking cognizance of the offences under S.497 or 498 of the Penal Code on the police report filed. But he should have taken cognizance of the said offences on the basis of the complaint filed by the petitioner albeit the final report sent up by the police. I therefore direct the learned Chief Judicial Magistrate to take cognizance of the aforesaid offences on the strength of the complaint and proceed to examine the complainant in the manner provided in S.200 of the Code. He may proceed with the complaint by registering a different case for the said offences. The Criminal Revision Petition is disposed of accordingly.