IMPORTANT POINT
Cognizance of offences under Chapter XX of IPC, such as Section 494, requires a complaint from the aggrieved party, and police reports cannot be treated as complaints for the purpose of taking cognizance.

ORDER :

THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 to quash Annexure A1 First Information Report in Crime No.295/2024 of Chengamanad Police Station, Ernakulam. The petitioner herein is the sole accused in the above crime.

2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the available documents.

3. In this matter, when a private complaint, alleging commission of offence punishable under Section 494 of IPC, was lodged before the Magistrate, the learned Magistrate forwarded the same for investigation to the police and accordingly, crime No.295/2024 of Chengamanad police station, Ernakulam has been registered. Now investigation has been going on.

4. According to the learned counsel for the petitioner, the police could not investigate an offence punishable under Section 494 of IPC and it is the domain of the Magistrate to deal with the complaint in view of the mandate under Section 198 of Cr.P.C. She has placed decision of this Court in Sali Antony and Another v. State of Kerala and Another, reported in 2020 KHC 5595 to buttress this contention, wherein in paragraph No.8 this Court held as under:

“8. Therefore, there is no question of the criminal court concerned taking cognizance of the offence as per Section 494 of the I.P.C. which has included in chapter XX of the I.P.C. except on a complaint in writing of the party concerned, who is aggrieved of such an offence relating to marriage. There is an absolute statutory bar and embargo on the part of the learned Magistrate in taking cognizance of the offence as per Section 494 of the I.P.C. on the basis of a Final Report/Charge Sheet/Police Report, filed by the Police investigating agency under Section 173 of the Cr.P.C. Therefore, the learned Magistrate has rightly discharged the 1st petitioner for the offence as per Section 494 of the I.P.C. in the police charge sheeted case in C.C. No.2079/2015. The sole substantive offence in C.C. No.412/2016 is the one as per Section 494 of the I.P.C., which the learned Magistrate has taken cognizance on the basis of the protest complaint submitted by the 2 nd respondent (lady de facto complainant). The learned Magistrate has given proper reasons in the impugned order as to how the factual ingredients are satisfied for the purpose of taking cognizance of the said offence as per Section 494 of the I.P.C. Hence, both the abovesaid Calendar Cases contain distinct offences. The action on the part of the learned Magistrate in having taking cognizance of the offences as per Sections 494, 120B read with Section 34 of the I.P.C. in the protest complaint filed by the 2nd respondent, cannot be said to be illegal or unlawful. Consequently, it cannot be said that the learned Magistrate has acted illegally and improperly in having refused the plea of the petitioners for discharging them for the offence as per Section 494 of the I.P.C. in C.C. No.412/2016. Hence, the prayers in the present petition fail.”

5. Whereas it is submitted by the learned counsel for the defacto complainant that there is no legal bar to refer a complaint alleging commission of offence under Section 494 of IPC, where Section 198 of Cr.P.C. would apply for investigation under Section 156(3) of Cr.P.C. and the bar is only in relation to taking cognizance, based on the report filed by the police. In support of this contention, the learned counsel placed two decisions of this Court, viz., Varghese v. Annamma and Others reported in 1987 (1) KLT 104 and Madhu V. Saseendra reported in 2000(2) KLT 112.

6. In Madhu’s case (supra), in paragraph Nos.14 and 15, this court held as under:

“14. From the above decision [Manuel Augustine V. State of Kerala (1984 KLT 859] it is clear that the police report filed by the investigating officer with respect to the non-cognizable offences cannot be treated as polic