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2018 DIGILAW 808 (KER)

A. Sivadasan v. Sairabanu

2018-10-10

ANNIE JOHN

body2018
ORDER : In this petition filed under Section 482 Cr.P.C., the petitioner, who is the first accused in C.C No. 351 of 2009 on the file of the Judicial First Class Magistrate-II (Mobile), Kozhikode for offences punishable under Sections 406, 420, 498A and 494 r/w Section 34 IPC, seeks to quash Annexure II complaint in C.C. No. 2 of 2014 and all further proceedings pending before the aforesaid Court. The first respondent is the de facto complainant. 2. The petitioner is employed in Abudabi as a Technician. He entered appearance before the Judicial First Class Magistrate, Kozhikode in C.C. No. 351 of 2009 and was released on bail. Later he was permitted to go abroad by the learned Magistrate and his personal appearance was exempted. 3. Later, the first respondent filed a private complaint before the Chief Judicial Magistrate Court, Kozhikode alleging an offence punishable under Section494 r/w Section 34 IPC against the petitioner, one Indira, the petitioner's mother and sister. The learned Magistrate took cognizance against the petitioner and later the case was made over to the Judicial First Class Magistrate-II (Mobile), Kozhikode. The said case is pending as C.C.No. 2 of 2014. The learned Magistrate has issued process to the petitioner in CC.No. 2 of 2014. The petitioner had gone to Abudabi on 27.10.2014. Therefore, the summons was not served to the petitioner. 4. According to the petitioner, the proceedings in C.C.No. 2 of 2014 is a clear abuse of the process of court. The grievance of the petitioner is that he is facing trial in the Chief Judicial Magistrate, Kozhikode for the same issue in which the first respondent is the de facto complainant. The first respondent has already examined in the case. During chief examination, she has stated all averments contained in Annexure II. All the witnesses cited in Annexure II are the witnesses in C.C.No. 351 of 2009 and most of them have already been examined. According to the petitioner, the prosecution on the basis of Annexure II complaint is only an abuse of the process of court and if the proceedings in C.C.No. 2 of 2014 is permitted to go on, he will be put to serious prejudice and irreparable hardships. 5. Heard both sides. 6. According to the petitioner, he has already faced trial for the aforesaid offences in C.C.No. 351 of 2009. 5. Heard both sides. 6. According to the petitioner, he has already faced trial for the aforesaid offences in C.C.No. 351 of 2009. The first respondent, who is the de facto complainant, has already examined in the case and therefore, she is well aware of the prosecution pending against the petitioner for the offence under Section 494 IPC. The learned counsel for the petitioner has argued that the same set of allegations are raised in Annexure II complaint and all the witnesses cited therein are the witnesses in C.C No. 351 of 2009 and most of them were examined. Any findings in C.C.No. 351 of 2009 will act as a bar for the further proceedings on the basis of Annexure II complaint and therefore, no purpose would be served by permitting the proceedings in C.C. No. 2 of 2014 to be proceeded with. It will result in wastage of judicial time and the harassment of the petitioner. 7. According to the petitioner, he is being prosecuted at the instance of the first respondent before two different courts on the basis of very same allegations. The attempt of the first respondent was to get a warrant issued against the petitioner in order to harass him and she has succeeded in her unscrupulous attempt. 8. The learned counsel for the petitioner has placed reliance on State of Haryana v. Bhajan Lal [(1992) Supplementary 1 SCC 335) and submitted that the Apex Court has given the categories of cases by way of illustration, wherein inherent powers under Section 482 Cr.P.C or the extra ordinary powers under Article 226 could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. Category No.7 illustrated by the Apex Court is as follows: "(7) Where a criminal proceedings is manifestly attended with mal fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." According to the petitioner, the case in hand falls squarely within the above illustration and therefore, it is highly essential in the interest of justice to quash the proceedings against him, by invoking the inherent powers of this Court. 9. 9. I have gone through Annexure I charge sheet, wherein the Chief Judicial Magistrate, Kozhikode has framed charge against the petitioner under Sections 406, 420 and 498A r/w Section 34 IPC. It is stated that the petitioner has married one Indu alias Indira on 07.07.2008 and they are living together as husband and wife. According to him, the learned Magistrate has framed charge under Section 494 of IPC. Annexure II is the complaint filed by the first respondent before the Chief Magistrate Court, Kozhikode alleging that the petitioner has married another lady on 07.07.2018 at Kodikunnu Temple, Pazhayangadi, Pallipuram as per the Hindu religious rites and they are living together as husband and wife. This fact has been projected in both Annexures I and II. 10. After the filing of this Crl.M.C., the petitioner has produced Annexure III judgment dated 31.03.2016 in C.C. No. 351 of 2009, as per which the Chief Judicial Magistrate, Kozhikode, after trial, acquitted the accused of the offences under Sections 406, 420, 498A and 494 r/w Section 34 IPC. The points were raised for the determination in the abovesaid Annexure III judgment and one of the points was whether A1 married another woman during the subsistence of his marriage with CW1 and thereby committed the offence under Section 494 r/w Section 34 IPC alleged by the prosecution. Evidence was taken in that case and the learned Magistrate has observed thus: "The allegation is that after deserting PW1, A1 married another woman and is presently living with her. But, there is a technical problem here. As per Section 198 of the Code of Criminal Procedure, the courts are barred from taking cognizance of offences under Chapter XX of the Indian Penal Code except upon a complaint in writing by the aggrieved person. Section 494 of IPC comes under Chapter XX of IPC and cognizance except upon a complaint in writing is totally impermissible. Without noting this basic defect, this Court took cognizance of the offence and proceeded with the trial. It should also be noted that the definition of the term 'complaint' under Section 2(d) of Cr.P.C specifically excludes a police report. Hence for the above reason, I hold, without going into other details, that the offence u/s.494 r/w 34 of IPC will not stand a moment longer. Point is answered accordingly." 11. It should also be noted that the definition of the term 'complaint' under Section 2(d) of Cr.P.C specifically excludes a police report. Hence for the above reason, I hold, without going into other details, that the offence u/s.494 r/w 34 of IPC will not stand a moment longer. Point is answered accordingly." 11. Accordingly, the petitioner/accused was acquitted of charges levelled against him under Section 494 of IPC. Now, the sole question to be considered in this case is whether the second trial related to the offence under Section 494 of IPC is permissible. Section 300 of Cr.P.C and Article 21 of the Constitution of India bar second trial as it will tantamount to double jeopardy. 12. In Rambha lakshmana Rao and another v. State of A.P, it is held that Section 300 Cr.P.C has further widened the protective means by debarring second trial against some accused on the same facts even for a different offence and the contours are so widely enlarged and that it cannot be contended that the second trial can escape therefrom on the ground premise that some more allegations were not made in the first trial. 13. In Prem Pal Varshney v. Union of India [1990 KHC 1231], it is held that to take cognizance under Section 198 Cr.P.C, there should be a complaint by some aggrieved person. Section 198 Cr.P.C reads thus: 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: The bar under Section 198 Cr.P.C applies only to the jurisdiction of the Court to take cognizance of offences falling Sections 493 to 496 of the Indian Penal Code except upon a complaint made by some aggrieved person for such an offence. It is not necessary, however, that the complaint should state precisely the offence as per which the accused shall be charged. It is sufficient if the complaint lays before the Magistrate the matters, which it proved, is sufficient to warrant commitment under the Section. 14. Here in this case, it is come out that the first respondent has initiated criminal proceedings against the petitioner in the year 2009 alleging that the petitioner has married another lady. Hence, he is liable to be convicted under Section 494 IPC. 14. Here in this case, it is come out that the first respondent has initiated criminal proceedings against the petitioner in the year 2009 alleging that the petitioner has married another lady. Hence, he is liable to be convicted under Section 494 IPC. It is borne out that the first respondent has approached the concerned police officials and made a complaint. Accordingly, the police has filed a charge sheet against the petitioner, including Section 494 of IPC, ignoring the bar under Section 198 of Cr.P.C. The learned Magistrate has disposed of the earlier proceedings initiated as C.C. No. 351 of 2009 by observing that the charge filed under Section 494 of IPC is defective and accordingly he has not considered the evidence adduced by the parties and acquitted the accused under Section 248(1) of Cr.P.C. 15. The question to be considered in this case is whether the trial conducted in the earlier proceedings related to the offence under Section 494 IPC is a bar to take cognizance of the same offence by the Magistrate. It is borne out from Annexure II that the first respondent has again approached the concerned Magistrate and filed a complaint alleging that the petitioner has got married to a lady named Indu alias Indira on 07.07.2008. Accordingly, Section 494 IPC is attracted and now the attempt on the part of the first respondent is to file a complaint before the concerned Magistrate to initiate criminal proceedings against the petitioner. As per Section 198 Cr.P.C, no court shall take cognizance of an offence punishable under Chapter XX of IPC (45 of 1860) except upon a complaint made by some person aggrieved by the offence. As per sub-Section (2) of Section 198, 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, for the purpose of sub-Section (1). Further proviso (c) to Section 198 provides that 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. 16. 16. From the above, it is clear that there must be an aggrieved person who is to institute a criminal complaint before the Magistrate so as to take cognizance against the offender. In the earlier proceedings in C.C. No. 351 of 2009, the cognizance was taken by the Court, without considering the bar under Section 198 of Cr.P.C. 17. In Sherin v. State of Kerala [ 2014(1) KLT 1070 ], it is held that it would be an exercise in futility to conduct an investigation in respect of offences falling under Chapter XX of IPC, for the final report in such cases cannot be acted upon by the Court. Even if mistakenly a complaint involving offences under Chapter XX or XXI happened to be sent for investigation under Section 156(3) of Cr.P.C, when the final report is filed, the Magistrate can ignore that final report and proceed on the original complaint for which the Magistrate may have to send notice to the complainant so that if he/she is interested in prosecuting the matter he /she can let in evidence as required under Section 200 Cr.P.C. It is further held that when the Magistrate proceeds on the original complaint involving offences under Chapters XX or XXI after ignoring the final report and issues process under Section 204 to the accused, such action cannot be found fault with. 18. The counsel for petitioner has argued that on a perusal of Annexure III judgment, it is abundantly clear that the learned Chief Judicial Magistrate has exercised his power conferred on him under section 248 (1) Cr.P.C and acquitted the accused. The said order having not been challenged/modified or varied at any subsequent stage, it has reached finality. Again on the same set of allegations, the 1st respondent filed another complaint before Judicial First Class Magistrate-II Kozhikkode (Mobile) stating that on 07.07.2008, the 1st respondent married another lady and Section 494 of the IPC is attracted. 19. The question which arises for consideration is whether the acquittal under section 248(1) Cr.P.C would be covered under section 300(1) of the Cr.P.C which provides that a person who has once been tried by a competent court for an offence and convicted or acquitted of such offence, shall not be, while such conviction or acquittal remains in force, liable to be tried again. 20. 20. An exception may be taken to the words 'has once been tried' appearing in Section 300(1) of Cr.P.C. When an order under Section 248(1) is passed, an obvious question may arise that the accused has not faced the trial so that the order of acquittal may not be covered under Section 300(1) of Cr.P.C. In this case, the petitioner has undergone trial in an earlier proceedings charged under Section 494 of the Indian penal code. After trial, the Chief Judicial Magistrate Court, Kozhikkode found that there is a technical problem that as per section 198 of Cr.P.C., the courts are barred from taking cognizance of offences under Chapter XX of IPC, except upon a complaint in writing by the aggrieved person. Section 494 of IPC comes under Chapter XX of IPC and cognizance except upon a complaint in writing is totally impermissible. Without noting this basic defect, the court took cognizance of the offence and proceeded with the trial. The definition of term 'complaint' defined in section 2(d) of the Cr.P.C specifically excludes a police report. For the above reason, the Chief Judicial Magistrate, Kozhikkode held that the offence under section 494 r/w Section 34 of IPC will not stand a moment longer. Accordingly, the petitioner was acquitted by invoking section 248(1) of Cr.P.C. Here, the petitioner has faced trial before Chief Judicial Magistrate, Kozhikkode in C.C. No. 351 of 2009. 21. In State of Karnataka v. K.H. Annegowda and another (1977) 1 SCC 417 , it is held that 'tried' under Section 300(1) Cr.P.C would include all steps taken after taking of the cognizance, which includes the date of appearance of the accused after issuance of summons. It is held in Madan Mohan Tripathy v. Rama Chandra Behera 1988(II) OLR 362 that the acquittal under section 256(1) Cr.P.C is squarely covered under the provisions of Section 300(1) Cr.P.C. 22. Section 300 of the Cr.P.C envisages that person once convicted or acquitted not to be tried for same offence and it reads thus: “300. It is held in Madan Mohan Tripathy v. Rama Chandra Behera 1988(II) OLR 362 that the acquittal under section 256(1) Cr.P.C is squarely covered under the provisions of Section 300(1) Cr.P.C. 22. Section 300 of the Cr.P.C envisages that person once convicted or acquitted not to be tried for same offence and it reads thus: “300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-Section (2) thereof. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897) or of section 188 of this Code.” The explanation provides that dismissal of a complaint or the discharge of the accused, is not an acquittal for the purposes of this Section. 23. Here, in this case, the petitioner has faced a full-fledged trial in an earlier proceedings in C.C No. 351 of 2009. Thereafter, the Magistrate held that the cognizance and the charge framed under Section 494 of IPC is not sustainable since it is barred under Section 198 of Cr.P.C. 24. In this connection, it is very important to note that Section 198 of Cr.P.C provides that 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. 25. The proviso (c) to Section 198 reads thus: “where the person aggrieved by an offence punishable under section 494 or section 495 of 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.” 26. Section 198 sub clause 2 reads thus: “For the purpose of sub-Section (1) no person other than the husband of the woman shall be deemed to be an aggrieved by any offence punishable under section 497 or section 498 of the said Code:” 27. The complaint is defined under Section 2(d) of the Code of Criminal Procedure and it reads thus: “complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 28. The complaint is defined under Section 2(d) of the Code of Criminal Procedure and it reads thus: “complaint' means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.” 28. Needless to say that Section 198 of Code of Criminal Procedure Code bars from taking cognizance of the offences under chapter XX of the Indian Penal Code which includes offences coming under Section 494 or Section 495 of the Indian Penal Code, except upon a complaint filed by an aggrieved person. In an earlier petition, the petitioner was charged under Sections 406, 420, 498A, and 494 r/w section 34 of Indian penal code. The case was taken on file as C.C. No. 351 of 2009 and the learned Magistrate has issued process to the petitioner and on appearance charge was framed against the petitioner for the aforesaid offences. After recording the entire evidence, the Court acquitted the accused under Section 248 (1) of Cr.P.C. Now the question that arises for consideration is whether the acquittal of the petitioner/accused in C.C NO. 351 of 2009 is barred under section 300 of Cr.P.C. It is true that once the trial is over and the petitioner/accused is acquitted or convicted, he cannot be tried for the same offences in another complaint. 29. The explanation to section 300 of Cr.P.C state that the bar is not applicable to the dismissal of a complaint or discharge of the accused. 30. It is held in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar ( AIR 1962 SC 876 ) that a fresh complaint can be entertained that there is manifest error, or manifest miscarriage of Justice in the previous order or when fresh evidence is forthcoming. The test to determine the exceptional circumstances are brought under 3 categories: (1) manifest error (2) manifest miscarriage of Justice, and (3) new facts which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceedings. In that case, the second complaint on the same facts can be entertained and no bar on proceeding with it. 31. Even in a case where the accused is discharged by the court of law, that is also equal to acquittal of the accused. In that case, the second complaint on the same facts can be entertained and no bar on proceeding with it. 31. Even in a case where the accused is discharged by the court of law, that is also equal to acquittal of the accused. It is held in K.H. Annegowda that withdrawal from the prosecution after the case is committed to Sessions results in acquittal and hence the accused is not liable to be prosecuted again in view of section 300 of new Code of 1973. By virtue of section 484 of the new Code the pending trial even after April, 1974 is governed by the old Code. 32. In the above case, the prosecution with the consent of the court has withdrawn the charge under section 494 of IPC. Accordingly, permission was granted to withdraw from the prosecution and discharged the accused in respect of the offence charged against them. The State thereafter ordered a fresh investigation into the offence and in consequence of such investigation a new charge was filed against the respondents. When the case came up for hearing before Sessions Judge, they filed an application stating that respondents had been acquitted and therefore they are not liable to be prosecuted again for the same offences, in view of section 300 of the new Code. The Session Judge rejected the application, taking the view that respondents were discharged and not acquitted under the order and therefore Section 300 of Cr.P.C is not applicable and there was no bar against the fresh prosecution for the same offence. 33. In a revision preferred from the same order, the Honourable High Court held that though the order passed by the Sessions Judge directed that the respondents be discharged, the legal effect of this order was to bring about the acquittal of the accused. Since the withdrawal from the prosecution was made after charge had been framed and the respondents having been acquitted under that order, the bar of section 300 of the new Code was attracted and respondents were not liable to be prosecuted again for the same offences. It is also held that if the withdrawal from the prosecution was made before a charge was framed, the accused would be discharged, but it was made after a charge had been framed, the consequence would be that the accused would be acquitted. 34. It is also held that if the withdrawal from the prosecution was made before a charge was framed, the accused would be discharged, but it was made after a charge had been framed, the consequence would be that the accused would be acquitted. 34. It is held by the Madras High Court in Queen Empress v Sivarama (1988(12) Mad 35) that where an accused is committed to stand his trial before a court of session on a charge and the prosecution is withdrawn by the public prosecutor with the consent of the court of sessions under section 494 of IPC, the accused is entitled to be acquitted not merely discharged. The same view was reiterated by the Madras High Court In re: Velayudha Mudali and others AI.R (1949 Madras 508). 35. Here, the case is otherwise that the petitioner has been once tried by the Chief judicial magistrate, Kozhikkode and acquitted him from all the offences charged in the abovesaid case. It is evident that the first respondent has filed a private complaint before the Judicial First Class Magistrate II, Kozhikkode. It was alleged that the petitioner has committed an offence under section 494 of Indian penal code and the above said case was numbered as C.C. No. 2 of 2014 and learned Magistrate has issued processes to the petitioner. According to petitioner, the proceedings in CC No.2 of 2014 is a clear abuse of process of court and the petitioner has faced trial before the Chief Judicial Magistrate, Kozhikode for the same issue in which the 1st respondent is the de facto complainant. The 1st respondent has already examined in the above said case and during Chief examination she has stated all averments contained in Annexure 11. The witnesses cited in Annexure 11 are the witnesses in C.C No.351 of 2009 and most of them have already been examined. According to the petitioner, the prosecution on the basis of Annexure II complaint is only an abuse of process of court and if the proceedings in C.C No. 2/2014 is permitted to go on, he will be put to serious prejudice and irreparable hardships. According to the petitioner, the prosecution on the basis of Annexure II complaint is only an abuse of process of court and if the proceedings in C.C No. 2/2014 is permitted to go on, he will be put to serious prejudice and irreparable hardships. As per Annexure 111 judgment dated 31st March, 2016, the petitioner along with the other accused therein, were tried together and ultimately acquitted under section 248(1) of CR.P.C. Whatever be the reason for the acquittal of the petitioner under section 494 of the Indian penal code, he cannot be tried again for the same offences. It is true that mistakenly, the learned Magistrate has taken cognizance of the offence under section 494 of Indian penal code without noting the provisions under section 198 of Cr.P.C. Due to the mistake committed on the part of the court, the 1st respondent has not obtained any relief in C.C No. 351 of 2009. On finding that section 494 of Indian penal code is not maintainable due to bar under section 198 of criminal procedure code, the learned magistrate ought to have treated the complaint separately and proceeded with. The remedy available to the 1st respondent is to file an appeal against the judgment in C.C. No. 351 of 2009 and not to file a complaint under section 494 of IPC on same set of facts. 36. In the above view, I find that Annexure A11 complaint filed by the 1st respondent before the judicial First Class Magistrate Court is barred under section 300 of Cr.P.C. Therefore, the petitioner is not to be tried again for the same offences as he was tried earlier. Therefore, the present petition filed under section 482 of Cr.P.C to quash same proceedings pending before the Judicial First Class Magistrate II (Mobile), Kozhikkode is to be allowed In the result, this petition is allowed and the entire proceedings pending in CC 2/ 2014 is hereby quashed.