THE HONOURABLE SRI JUSTICE N.TUKARAMJI CRIMINAL PETITION No. 5078 OF 2024

ORDER

This Criminal Petition is filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS, 2023’), seeking quashment of the proceedings against the petitioner in C.C.No. 26 of 2022, on the file of the learned Special Judicial First Class Magistrate-

cum-Excise Court, Mancherial.

2. The petitioner is arrayed as Accused No.2 in the Calendar Case registered for the offence under Section 494 of the Indian Penal Code, 1860 (for short ‘I.P.C.’).

3. Heard Mr.A.Ramulu, learned counsel for the petitioner and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor, representing the respondent No.1-State.

4. The prosecution’s case, in brief, is that Respondent No.2, the de-facto complainant, lodged a police report on 23.09.2021 that he married Accused No.1 on 05.05.2013 and led a conjugal life for approximately three years. Subsequently, matrimonial discord arose, and the dispute was referred to the elders for resolution. However, despite the absence of any formal dissolution of marriage, Accused No.1 is alleged to have entered into a second marriage with the petitioner/Accused No.2, with whom she now has a child. Based on this report, the Police registered a criminal case, conducted an investigation, and ultimately filed a charge-sheet.

5. Learned counsel for the petitioner contends that under the Andhra Pradesh Amendment Act of 1991–92, although an offence under Section 494 of the Indian Penal Code (‘IPC’) is cognizable, the Court is precluded from taking cognizance of such an offence under Section 198 of the Code of Criminal Procedure, 1973, unless a private complaint is filed by the person aggrieved. In the present case, as conceded by the prosecution and evident from the charge-sheet, the proceedings were initiated on the basis of a police report rather than a complaint from the aggrieved party.

Learned counsel further relies on the judgment of the High Court of Andhra Pradesh in B. Parvathi v. State of Andhra Pradesh, 2020(1) ALD (Crl.) 876 (AP), wherein the Court unequivocally held that cognizance under Section 494 IPC is barred unless the complaint is made by the aggrieved individual. Accordingly, the petitioner prays for judicial intervention and quashing of the criminal proceedings.

6. The learned Additional Public Prosecutor has fairly conceded that the present case was indeed initiated on the basis of a police report filed by the de-facto complainant, despite the statutory requirement that such

complaints be filed directly before a Magistrate by the aggrieved person, as prescribed under Section 198 Cr.P.C.

7. I have perused the materials on record.

8. It is an admitted fact that the proceedings before the trial Court have been initiated on the basis of a police report submitted by the de-facto complainant. In this context, it is pertinent to refer to the statutory provision governing the prosecution of offences under Section 494 of the Indian Penal Code (IPC). The relevant legal framework stipulates specific conditions under which a Court may take cognizance of such offences, particularly emphasizing the necessity of a complaint being filed by the person aggrieved, rather than initiation through a police report.

“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:

Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by