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ANDHRA PRADESH HIGH COURT
Parvatha Rao, J.
Mr. Rajaram Venkatesh & Ors. - Petitioners.
versus
The State of A.P. & Anr. - Respondents
Cri. P.N. 1764-1991
Decided on 21.9.1992
Held: The mere fact that the 2nd respondent resides at Kakinada cannot give Jurisdiction to the Magistrate at Kakinada to take cognizance of an offence under section 498A of the I.P.C. in the absence of some act subjecting her to cruelty have occurred or taken place at Kakinada. That is the reason why the 2nd respondent has alleged in the second complaint that the 1st and 2nd petitioners came to Kakinada during January, 1991 to get over the question of jurisdiction. (Para 19)
There is thus clear variance between what is stated in the second complaint dated 18.4.1991 and what, is stated by the list witnesses. From this it follows that the allegation of the 2nd respondent that the 2nd petitioner visited Kakinada in January, 1991 along with the 1st petitioner is false to her knowledge. The subsequent improvement in the statements of the list witnesses that a sister of the 1st Petitioner. A companied him to Kakinada in January, 1991 cannot implicate any of the petitioner i.e., petitioners 3 to 5 in the said visit to Kakinada both because no mention of the same was made in die second complaint dated 18.4.1991 and also because even the 2nd respondent in her statement' did not say which of the sisters accompanied the 1st petitioner which is incomprehensible. It is not the case of the 2nd respondent that the 1st petitioner came all by himself to Kakinada and therefore it is not possible to proceed on the basis that he alone visited Kakinada during January, 1991 for the purpose of holding that the learned Magistrate at Kakinada has territorial jurisdiction to take cognizance of the alleged offence. This has to be considered along with the fact that in the first complaint dated 8.4.1991 there was no whisper about the alleged visit of the 1st petitioner along with the 2nd petitioner/sister to Kakinada during January, 1991 and that no explanation whatsoever is given by the 2nd respondent for not mentioning that in the first complaint. In this context it is significant that in the police report i.e., charge sheet, no mention is made of the said alleged visit of the 1st petitioner to Kakinada during January, 1991 obviously because the police after investigation did not find any basis for supporting the said allegation. In the circumstances, I. am satisfied that the learned Magistrate at Kakinada has no territorial jurisdiction to take cognizance of the alleged offence under section 498A of the I.P.C. on the basis of the police report dated 11.7.1991. (para 20)
Held further: I also find that taking cognizance of the said offence is barred by time. Offence under section 498A of the I.P.C. is punishable with imprisonment for a term/which may extend to three years and shall also be liable to fine. Under sub-section (2) of section 468 of the Cr. P.C. the period of limitation is they years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The police reports dated 11.7.1991. In the F.I.R. the date and hour of occurrence is given as 16.5.1988 at 8,00 A.M. In the Second complaint also, the date of offence is given as 16.5.1988 at about 8.00 A.M. If the allegation that the first petitioner and 2nd petitioner/sister of the 1st petitioner visited Kakinada during January, 1991 has no basis and is falsified on the material filed along with the charge sheet, no cognizance be taken of the alleged offence after 16.5.1991. (Para 21)
(ii) Indian Penal Code, 1860 - Section 498 A - Cruelty by husband etc. - Abuse of the process of the Court - Whether filing of second complaint by Respondent No. 2 alleging the fact of cruelty by the petitioners after dismissal of her first complaint as not passed with raise allegations creating jurisdiction at Kakinada amounts to abuse of the process of the Court? (Yes)
Held: In the present case the, complaint is malafide and vexatious in view of the manner in which the first complaint dated 8.4.1991 was allowed to be dismissed as not pressed and the presentation of the second complaint a few days thereafter making allegations which I have already found as vague and without any basis and contradictory on a perusal of the material available before the learned Magistrate at the time of taking cognizance of the alleged offence. (para 23)
Held further: In this connection, it is also to be noticed that though in paragraph 5 of the second complaint dated 18.4.1991 it is alleged that in spite of the requests of the complainant (the 2nd respondent herein), accused did not mend their ways and continued demanding amounts from her even when she was living with her mother at Kakinada, the said allegation is not there in the first complaint dated 8.4 .1991. On the other hand, it is alleged in paragraph 6 of the first complaint that "the complainant herself approached the first accused to allow her to live with him for a happy and peaceful marital life, but the first accused bluntly refused that is not possible without taking dowry. Recently the complainant came to know that the first accused again will try to marry another lady for huge amount of dowry and articles. This allegation in the first complaint is omitted in the second complaint. It is also to be noticed that in the first complaint it is stated in paragraph 7 that the 2nd respondent gave a police report to the Station House Officer of II town police station, Kakinada on 4.2.1990 on the basis that the complainant came to know that the 1st accused again will try to marry with another lady. In the second complaint in paragraph 6 it is alleged that the 2nd respondent gave a police report to the Station House Officer, II town police station at Kakinada on 4.2.1991, after the visit of the 1st and 2nd accused to Kakinada during 3 January, 1991. Whereas in the first complaint it is stated that the police report was given on 4.2.1990 in the second complaint it is stated that the police report was given on 4.2.1991. From these, circumstances I am satisfied that the 2nd respondent has falsified the facts after not pressing the first complaint and abused the process of the Court by filing a second complain1 on the basis of false allegations with a view to give territorial jurisdiction to the learned Magistrate at Kakinada and also to save limitation. (Para 22)
(iii) Criminal Procedure Code, 1973 - Sections 156(3), 173, 190(1)(a) and (b), 200, 201 and 202 - Reference to Police ...Whether reference of private complaint to police for investigation under section 156(3) Cr. P.C. before taking cognizance of offence by Magistrate is illegal? (No)
Held: There cannot be any doubt whatsoever that there cannot be any reference of the case to the police under section 156(3) of the Cr. P.C. for investigation after talking cognizance of the offence under section 190(1)(a) and recording the statements of the complainant and the witnesses present under section 200 Cr. P.C. after taking such cognizance the Magistrate could order investigation by the police only under section 202 Cr. P.C. and not under section 156(3) of the Cr. P.C. (para 14)
Held further: Under section 201 of the Cr. P.C., if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall (a) if the complaint is in writing, return it for presentation to a proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Therefore, the learned Magistrate could not have dismissed the said complaint if he had no jurisdiction and could have only returned the complaint. (Para 11)
Result: Petition allowed.
ORDER
Parvatha Rao, J. - The Petitioners herein are respectively accused 1 to5 in C.C. No. 120 of 1991 on the file of the learned II Additional Judicial First Class Magistrate, Kakinada and they pray for the quashing of the said proceedings on the ground that the cognizance of the offence itself was barred by/time and that the learned Magistrate at Kakinada had no territorial Jurisdiction and that the initiation of the criminal prosecution against petitioners amounted to abuse of the process of the Court.
2. The 2nd petitioner is the father and petitioners 3 to 5 are the sisters, of the 1st petitioner. The 2nd respondent married the 1st petitioner. It is not in dispute that the 1st petitioner and the 2nd respondent were married at Hyderabad on 10.5.1987 and that after the marriage they resided at Hyderabad for a couple of weeks and that about the end of May, 1987 they went to Bombay and resided at Plot No. B-17 in Chembur in the house of the 2nd petitioner.
3. It is the case of the 2nd respondent that at the time of her marriage, her mother gave Rs. 25,000/- cash and also gold ornaments and other silver and house-hold articles worth about Rs. 1,00,000/- to the 1st petitioner and that the petitioners were not satisfied with the money and articles given at the time of the marriage and wanted more cash and articles like colour T.V., V.C.R. and Refrigerator to be brought by the 2nd respondent. The 2nd respondent's father died long back and her mother is aged about 70 years. As the parental family of the 2nd respondent was not in a position to give more money and articles demanded by the petitioners, the petitioners harassed and ill-treated the 2nd respondent and beat her and abused her. She even tried to commit suicide According to her, finally on 16.5.1988 the 1st petitioner with the active co-operation of petitioners 2 to 5, pushed her away from their house demanding further dowry amount of Rs. 30,000/-and since then she had been living in her mother's house at Kakinada. The money and the gold, silver and other articles given to the 1st petitioner at the time of the marriage were retained by him and he had not been paying any maintenance to her and had not taken her back for marital life and continued to demand money even when she was, living with her mother at Kakinada. Alleging all these facts, she filed a criminal complaint dated 8.4.1991 before the II Additional judicial First Class Magistrate at Kakinada through her advocate Sri. T.V. Ramana and the said complaint was numbered as C.C. (SR. NC. 2209) Of 1991. On 12.4.1991 the counsel for the 2nd respondent i.e., Sri T.V. Ramana endorsed on the said complaint dated 8.4.1991 not pressed this complaint petition and the complaint was dismissed since not pressed by the learned Magistrate. Thereafter the 2nd respondent through the same advocate Sri. T.V. Ramana filed on 19.4.1991, a second complaint dated 18.4.1991 before the IInd Additional Judicial First Class Magistrate, Kakinada more or less alleging the same facts as in the first complaint dated 8.4.1991 and in addition stated that in January, 1991 the Island and petitioners came to the house of the 2nd respondent and threatened her and her mother to face consequences like divorce and second m age by the 1st petitioner if they did not pay the amount demanded by them, and that the thereupon 2nd respondent and her in other gave a police, report on 4.2.1991 to the Station House Officer of the II town Police Station, Kakinada and that the police did not take any action. No mention was made therein of the 1st complaint dated 8.4.1991.
4. On 19.4.1991 the learned Magistrate for warded the said complaint to the Station House Officer, II town police station, Kakinada under section 15.6(3) of the Cr. P.C. for investigation. The police registered Crime No. 43 of 1991 under section 498A I.P.C. and investigated and filed the charge sheet dated 11.7.1991 under section 498A read with section 34, I.P.C. read with section 156 (3) Cr. P.C. an
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