Judgment 1. Thepetitioner herein is the complainant. She filed a complaint against the 2nd respondent under Secs.495, 420 and 409 of the Indian Penal Code. 2. The allegations in the complaint runs as follows: The petitioner and the 2nd respondent were married on 12.5.1983, at Madras, according to Islamic Law. The complainant was working in Essenjay Marketing Private Limited, Chennai, as a stenographer, where the accused viz., the 2nd respondent was working as Sales Executive. The accused Rajasimha has been pressing the complainant to marry him and pressurised her. He also represented that he has divorced his 1st wife. The 2nd respondent/accused was a Hindu by birth. Therefore, the 2nd respondent represented that he would embrace Islam. Hence, the petitioner had agreed to marry the accused. Accordingly, on 24.6.1982, he became a Muslim, and produced the certificate for the same to the petitioner. But, again on 24.7.1982, he reconverted into Hinduism. Again, he insisted upon the complainant to marry him. Then, he converted himself into Islam in the presence of the Chief Khazi, and the marriage was celebrated on 12.5.1983. The complainant was subsequently working in Air India also, which job she resigned. On 7.2.1994, the 2nd respondent converted into Hinduism. He admitted his first marriage with one Padmini and the said marriage is subsisting. He also admitted the second marriage with the complainant. Thus, the 2nd respondent/ accused made false representation that he had already divorced his 1st wife, fraudulently converted into another religion, thereby married the complainant, and again reconverted himself after the said marriage. But for such false representation, the complainant would not have married the accused. Thus, the 2nd respondent/accused is guilty of the offences of the bigamy and cheating. He is also guilty of breach of trust. 3. The said complaint was forwarded by the XVII Metropolitan Magistrate, Saidapet, under Sec.156 (3) of Crl.P.C. for necessary action and was registered in Cr.No.20 of 1994 under Secs.495, 420 and 409 of I.P.C. The petitioner filed an application in Crl.M.P.No.388 of 1996, praying to alter the Charges from Sec.417 of I.P.C. to Secs.409, 420 and 495 of I.P.C. The said application was filed by the complainant under Sec.216 of the Criminal Procedure Code. The XVII Metropolitan Magistrate directed the complainant to give evidence before the court to ascertain as to whether the charge sheet filed is not in accordance with the investigation. The XVII Metropolitan Magistrate directed the complainant to give evidence before the court to ascertain as to whether the charge sheet filed is not in accordance with the investigation. An objection was raised by the counsel for the accused that the court is barred to hear the complainants counsel under Sec.301 of Crl.P.C. The objection was over ruled, and the complainants evidence was recorded in part and the matter was adjourned to 3.9.1996, for further evidence. At that stage, the accused filed an application for transfer of the case to some other Magistrate in Crl.M.P.No.1585 of 1996. The Chief Metropolitan Magistrate has ordered transfer of the case though he did not agree with the grounds urged for transfer. The case was ordered to be transferred to the file of the IX Metropolitan Magistrate, Saidapet, Chennai. This petition filed by the petitioner was dismissed by the IX Metropolitan Magistrate. Aggrieved by the said decision, the petitioner has now come up with this revision. 4. It is to be pointed out that the complaint was filed by the petitioner herein against her husband under Secs.495, 420 and 409 of I.P.C. The private complaint filed by the petitioner before the XVII Metropolitan Magistrate was forwarded by the Magistrate to the concerned Inspector of Police, i.e., All Women Police Station on 4.10.1994. The police had registered the case but the final report was filed only under Sec.417 of I.P.C. Sec.417 of the Indian Penal Code runs as follows: “Whoever cheats shall be punished with imprisonment of either description or a term which may extend to one year, or with fine, or with both.” Perhaps, the final report had been filed under Sec.417 of I.P.C. on the ground that the accused cheated the petitioner and married her. It being an offence punishable with imprisonment for less than two years, it can be tried as a summary case and if the accused admits the guilt and pays the fine, the matter will and there. 5. The complaint was filed under Secs.495, 420 and 405 of the Indian Penal Code. Sec.409 of I.P.C. relates to criminal breach of trust by a public or by banker, merchant or agent. 5. The complaint was filed under Secs.495, 420 and 405 of the Indian Penal Code. Sec.409 of I.P.C. relates to criminal breach of trust by a public or by banker, merchant or agent. Sec.420 of I.P.C. relates to offences of cheating, where a person cheats and dishonestly induces another to deliver property to any person, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to pay fine. Sec.495 of I.P.C. covers cases where a person commits offences defined in Sec.494 having concealed from the person with whom the subsequent marriage is contrasted, the fact of the former marriage, and such person shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay fine. 6. The definite case of the petitioner is that the accused cheated her by suppressing the fact that he is already married and thus committed bigamy. Therefore according to the petitioner, the police was not justified in filing a final report under Sec.417 of I.P.C. alone when the provisions under Secs.495 and 420 of I.P.C. are also attracted. 7. It is observed by the Apex Court in the decision reported in Abhinandan Jha v. Dinesh Mishra Abhinandan Jha v. Dinesh Mishra, A.I.R. 1968 S.C. 117 thatif the report submitted is to the effect that no case has been made put against the accused, the Magistrate can direct the police to file a charge sheet on his disagreeing with that report. The use of the words may take cognizance of any offence’ in Sub-sec.(1) of Sec.190 of Crl.P.C. imports the exercise of ‘judicial discretion and the Magistrate who receives the report under Sec.173 of Crl.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The court then held, in answering the questioned pose before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec.156(3) of Crl.P.C. It was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report. 8. The Supreme Court had another occasion to consider this aspect in the decision reported in Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another, (1995)4 Crimes 173their Lordships had observed as follows: “Since at the time of taking cognizance, the court has to exercise its judicial discretion it necessarily follows that if in a given case as the present one the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the court that a case for taking cognizance was made out, but the court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the court needs no emphasis. Reasons introduce clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has to beset aside and we do hereby set it aside. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has to beset aside and we do hereby set it aside. Consequent thereupon, two course are left open to us; to direct the learned Magistrate to hear the parties afresh one the question of acceptance, of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Sec. 190(1)(b), Crl.P.C.” Then their Lordships referred to the decision reported in H.S.Bains v. State H.S.Bains v. State, A.I.R. 1980 S.C. 1883which runs as follows: “The Magistrate is not bound by the conclusion arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complaint states the relevant facts in his complaint and alleged that the accused is guilty of an offence under Sec.307 of I.P.C., the Magistrate is not bound by the conclusions of the complainant. He may think that the facts disclose an offence under Sec.324 of I.P.C. only and he may take cognizance of an offence under Sec.324 instead of Sec.307. Similarly, if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder, but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.” 9. Thus, the Supreme Court had indicated the procedure to be adopted by the Magistrate in such cases, it is to be pointed out that on investigation, the police were of the opinion that a case under Sec.417 of I.P.C. alone has been made out. The final report filed by the police was take on file by the XVII Metropolitan Magistrate in C.C.No.5246 of 1995. The Magistrate did not give any notice to the complainant. He failed to follow the procedure indicated by the Apex Court. The final report filed by the police was take on file by the XVII Metropolitan Magistrate in C.C.No.5246 of 1995. The Magistrate did not give any notice to the complainant. He failed to follow the procedure indicated by the Apex Court. For he has accepted the report as it was also had taken cognizance: This is against the direction of the Apex Court. The petitioner aggrieved by the final report, which according to her sought to relieve the accused of the serious offences under Secs.495, 409 and 420 of I.P.C. filed an application under Sec.216 of Crl.P.C. to alter the charges specified in the final report and rightly. The application though filed under Sec.216 is in substance in the nature of protest petition. This application filed by the petitioner in Crl.M.P.No.388 of 1996 was considered by the XVII Metropolitan Magistrate, who heard both the counsel for the petitioner as well as the accused. It appears from the order passed by the XVII Metropolitan Magistrate, dated 9.8.1996 that the accused at that stage stated that he wanted to prefer a transfer petition. The learned XVII Metropolitan Magistrate accepted the request of the petitioner and recorded the evidence of the petitioner in part and posted the matter for continuation and for producing documents on 3.9.1996. 10. Then, the 2nd respondent filed an application for transfer before the Chief Metropolitan Magistrate. The Chief Metropolitan Magistrate, though did not agree with the reasons given by the 2nd respondent/accused for transfer, however passed an order, in the interests of justice, for transfer of the case from the file of the XVII Metropolitan Magistrate to the file of the IX Metropolitan Magistrate. The IX Metropolitan Magistrate dismissed the request of the petitioner by his order dated 8.3.1997, which is now challenged. 11. It is not known how the Xth Metropolitan Magistrate can set aside the order passed by the XVII Metropolitan Magistrate. The order passed by the XVII Metropolitan Magistrate, accepting the request of the petitioner, and recording the evidence of the petitioner in part was not challenged by the accused by taking up the matter to some other higher forum. When that is so, it is not known, how the order passed by the XVII Metropolitan Magistrate can be reviewed or set aside by the IX Metropolitan Magistrate. The procedure adopted by the IX Metropolitan Magistrate, is therefore unwarranted and erroneous. When that is so, it is not known, how the order passed by the XVII Metropolitan Magistrate can be reviewed or set aside by the IX Metropolitan Magistrate. The procedure adopted by the IX Metropolitan Magistrate, is therefore unwarranted and erroneous. He has exercised a jurisdiction which he never possessed at all. For that matter there was no application filed by the accused before the IX Metropolitan Magistrate in that regard. Whether the order passed by the XVII Metropolitan Magistrate is valid or not can be challenged only in higher forum. Further, the Magistrate has applied Sec.301 of Crl.P.C. The application of Sec.301 does not arise; Nor it was canvassed by either of the parties. It was filed under Sec.216 of Crl.P.C. It relates to the stage prior to trial. Further, the observation that the complainant has not been examined is not a correct statement. In such circumstances, the IX Metropolitan Magistrate was not competent to review or cancel that order. For the order passed by the IX Metropolitan Magistrate amounts to the same. It is true that the court is empowered to alter the charges, at any stage of the proceedings or delete or add charges. But, it is the right of the complainant to protest which ought to have been considered and was thus considered and XVII Metropolitan Magistrate. The IX Metropolitan Magistrate had practically reviewed to set aside the order passed by the XVII Metropolitan Magistrate. The IX Metropolitan Magistrate had no such power. 12. Of course, it is to be pointed out that when the petitioner filed an application in Crl.M.P.No.388 of 1998, already there was a order in her favour passed by the XVII Metropolitan Magistrate on 9.8.1996. Therefore, when already there was an order in her favour, there was no need for the Magistrate to have taken that petition for consideration. 13. The contention of the petitioners counsel is that the charges should be altered into Secs.409, 420 and 495 of I.P.C. Therefore, she filed an application under Sec.216 of Crl.P.C. I am unable to accept that Secs.409 and 420 will be attracted in such a case. The essential conditional regarding Sec.409 of I.P.C. is that one should be entrusted with property, or with any dominion over property in his capacity as a public servant, a banker, merchant, factor, broker, attorney or agent etc., Here, there is no property muchless dispute over property. The essential conditional regarding Sec.409 of I.P.C. is that one should be entrusted with property, or with any dominion over property in his capacity as a public servant, a banker, merchant, factor, broker, attorney or agent etc., Here, there is no property muchless dispute over property. Here, there is no relationship of banker, merchant, factor, broker, attorney or agent as between the petitioner and the accused. There is no entrustment of any property. The accused is also not public servant. Therefore, Sec.409 of I.P.C. can ever be invoked in this case. 14. Further, Sec.420 of I.P.C. also Specifies that if a person induces dishonestly another person to deliver any property or to make, alter or destroy in whole or any part of a valuable security, or anything which is signed or sealed or capable of converting into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. In this case neither any property nor any valuable security, is concerned. Therefore, Secs.409 and 420 of I.P.C. can never be applied to the facts and circumstances of this case. 15. The only other Section that remains is Sec.495 of I.P.C. It reads as follows: “Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The offence under Sec.495 of I.P.C. is committed only when the offence of bigamy is committed under Sec.494 of I.P.C. is concealed. Here,. in the very complaint filed before the court, it is stated that the accused had made a false representation to the complainant that he had already divorced his 1st wife since she was a barren and that he fraudulently converted into another religions and thereby married the complainant and that but for such false representation the complainant would not have married the accused. The allegation is that he held out that he had divorced his first wife. The allegation is that he held out that he had divorced his first wife. Whether the accused concealed the substance of 1st marriage or held out that it was dissolved is a matter and if so whether a charge under Sec.495 of I.P.C. is to be framed can be considered by the Magistrate only after sections. Petitioners evidence is taken, and filed and the records produced by her are entitled. I am of the view that it is not necessary to interfere with the said order passed by the lower court. For it has only held that under Sec.216 of Crl.P.C, the court can stay at any stage alter the charge and thus kept it open. The complainant has been examined in part. Therefore, if on the examination of P.W.1 and on the materials, that P.W.1 the complainant may place before the court, and after hearing the complainant may place before’ the court, and after hearing the complainant if necessary basis discernible to hold or arrive at an opinion that the ingredients of Sec.495 of I.P.C. is attracted, the lower court shall frame charge accordingly and proceed with the trial of the case and shall dispose of the same in accordance with law. Within three months from the date of this order. In that view, I hold that the order passed by the IX Metropolitan Magistrate, in my opinion, does not call for any interference and this Revision has to be disposed of accordingly. 17. In the result, the revision is dismissed. Consequently, Crl.M.P.No. 1550 of 1998 shall stand dismissed.