N.K. Balakrishnan, J.

Petitioners are accused Nos. 1 to 7 in C.C. No.580/2013 of Judicial First Class Magistrate Court, Kayamkulam. The offence alleged against them is under Section 494 r/w 34 of I.P.C.

2. A complaint was filed before the Magistrate as C.M.P. No. 6409/2012 alleging commission of offence by the accused under S.494 read with Section 34 I.P.C. That complaint was forwarded to the Police for investigation under Section 156(3) of Cr.P.C. without taking note of the bar under Section 198 of Cr.P.C.

3. After investigation, Police filed final report under Section 173(2) of Cr.P.C., alleging that the petitioners committed the offence under Section 494 r/w 34 of I.P.C. The learned Magistrate without applying his mind, took cognizance of the offence under Section 494 r/w 34 of I.P.C.

4. Section 494 of I.P.C. falls in Chapter XX of I.P.C. Section 198 of Cr.P.C. makes it clear that no court shall take cognizance of an offence punishable under Chapter XX of I.P.C. except upon a complaint made by some person aggrieved by the offence. But without application of mind and without taking note of the specific bar under Section 198 of Cr.P.C., the learned Magistrate took cognizance of the offence based on the report filed by the police under Section 173 (2) of Cr.P.C. It is clearly illegal. Hence, it is liable to be set aside.

5. The learned counsel for the 2nd respondent/complainant submits that the 2nd respondent intends to file a protest complaint since a negative report was filed by the Police with regard to the offence allegedly committed by the accused under Section 406 of I.P.C. It is further submitted by the learned counsel that since the complaint was filed by the 2nd respondent alleging commission of offence under Section 494 r/w 34 of I.P.C., the Magistrate should have, without forwarding the complaint to the Police under Section 156(3) of Cr.P.C., followed the procedure prescribed under Sections 200 and 202 of Cr.P.C. Therefore, the learned counsel submits that C.M.P. No.6409/2012, filed by the 2nd respondent, may be treated as a complaint and the learned Magistrate may be directed to proceed afresh so far as it relates to the offence under Section 494 r/w 34 of I.P.C.

6. The learned counsel for the petitioners submits that the offence under Section 494 of I.P.C. cannot lie against the petitioners since the parties are Muslims and hence the 1st petitioner is legally entitled to have four wives at a time and so marrying a second woman, during the subsistence of the 1st marriage, cannot attract the offence under Section 494 r/w 34 of I.P.C. That also was a matter which should have been taken note of by the learned Magistrate.

7. In view of the fact that the parties are Muslims, the allegation that the 1st petitioner committed offence under Section 494 of I.P.C. and other petitioners committed offence under Section 494 r/w 109 of I.P.C., cannot be sustained. Therefore, no purpose would be served by proceeding with the complaint/C.M.P. No.6409/2012 as regards the offence of bigamy is concerned. If the 2nd respondent is so advised, she can file a complaint with regard to the offence under Section 406 of I.P.C., if there are sufficient materials to be produced before Court.

8. When a complaint is filed before Magistrate, he has got discretion in the matter as to the procedure to be followed. If on a reading of the complaint he finds the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156 (3) of Cr.P.C. will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which is primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.

9. If the Magistrate chooses to take cognizance of an offence on complaint he shall examine upon oath the complainant and the witnesses present, if any, or if he choose