IMPORTANT POINT
Withdrawal of a complaint does not equate to acquittal under Section 257 of the CrPC for non-summons offences, emphasizing the necessity of jurisdiction and proper cognizance.

ORDER :

The petitioner is before this Court calling in question proceedings in C.C.No.164 of 2018 arising out of P.C.R.No.13 of 2016 filed by the respondent under Section 200 of the CrPC alleging offences under Sections 498A, 494, 506 r/w 34 of the IPC.

2. Heard Sri D. C. Srinivasa, learned counsel appearing for the petitioner and Sri Arun Bhat, learned counsel appearing for the respondent.

3. Facts, in brief, germane are as follows:-

The respondent is the complainant, the wife of the petitioner, accused No.1. The two get married on 18-11-1991. From the wedlock, a daughter is born. On 30-09-1992 the wife alleges harassment on demand of dowry and also alleges that she was pushed out of the matrimonial house and since then the couple have been living separately. The husband files a petition before the Family Court in M.C.No.104 of 1992 seeking annulment of marriage. In the year 1998, M.C.No.104 of 1992 comes to be re- numbered as M.C.No.2 of 1998 and on merits it comes to be dismissed. Thereafter, two petitions emerge one for restitution of conjugal rights and the other for maintenance by the wife. She also places on record that the husband has allegedly married for the second time during the subsistence of the first marriage. Several proceedings go on against each other.

4. On 03-12-2005, the wife files a private complaint before the JMFC, Nanjangud alleging that the husband has got married during the subsistence of the first marriage with her and also has threatened her to withdraw the case. The concerned Court, on 16-01-2006, takes cognizance of the offences under Sections 114, 494 and 506 r/w 34 of the IPC and registers C.C.No.52 of 2006.

The order of taking cognizance was challenged by filing a revision before the higher fora and on technical ground of the complainant not being examined, the cognizance was held to be illegal and the matter was remitted back to the hands of the learned Magistrate. Again on 20-05-2009, by a reasoned order, cognizance is taken for the very same offence. This time it is challenged before this Court in Criminal Petition No.6267 of 2009 by the petitioner/husband. On 20-02-2015 the respondent filed a Memo seeking to withdraw C.C.No.695 of 2009 to present it before the Court at Mysore, since she was residing in Mysore. A memo of withdrawal of the petition is answered and the complainant was permitted to withdraw it, for presentation before proper Court, in terms of the order of the learned Magistrate dated 20-11-2015. It is then the private complaint is registered in Mysore Court, in which cognizance is taken and a criminal case is registered in C.C.No.164 of 2018. The cognizance order varies from the earlier proceedings by addition of offence under Section 498A of the IPC. The husband files a criminal revision petition in Crl.R.P.No. 170 of 2019 before the Court of Sessions, Mysore against the order taking cognizance. This came to be rejected by the impugned order dated 28-09-2021. Aggrieved by the said order, the petitioner is before this Court in the subject petition.

5. The learned counsel appearing for the petitioner would contend that withdrawal of the case amounts to acquittal of the accused under Section 257 of the CrPC. Power to transfer is only vested with the Court of Sessions under Section 408 of the CrPC. On the merit of the matter, he would contend that, there is no evidence of second marriage whatsoever and the husband and the wife are living separately for the last 32 years. The order of taking cognizance for the second time on the very same complaint violates Section 190 of the CrPC and seeks quashment of the order of taking cognizance.

6. The learned counsel appearing for the respondent would seek to defend the order of taking cognizance and transfer of the petition.

7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

8. The afore-narrated facts are all a matter of record. The trial is yet to commence. C