HON’BLE SRI JUSTICE A. GOPAL REDDY CRIMINAL PETITION No.7817 OF 2007 DATE:20-08-2010 BETWEEN Ragula Ashok …Petitioner AND The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad & Another. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY CRIMINAL PETITION No.7817 OF 2007 ORDER: This petition under Section 482 of Code of Criminal Procedure has been filed to quash the proceedings in C.C.No.477 of 2004 pending on the file of XIII Additional Chief Metropolitan Magistrate, Mahila Court at Hyderabad for the offences punishable under Sections 420, 406 and 494 I.P.C. Learned counsel for the petitioner contends that the above case was taken on file on the charge sheet filed by the police without recording the sworn statement of the complainant for the offence under Section 494 I.P.C. and therefore, the same is bad in law. Section 198 of Cr.P.C. bars the Court from taking cognizance of the case for the offence under Section 494 I.P.C. unless the complainant is examined. Further the entire allegations made in the complaint do not attract the offences under Sections 406 and 420 I.P.C. and therefore, the impugned proceedings are liable to be quashed. It is contended that as per the findings recorded in M.C.No.99 of 2004, the second respondent has already married to one Balachary and did not obtain divorce and therefore, she is not the legally wedded wife of the petitioner and hence the impugned proceedings are liable to be quashed. In support of the said submissions, the learned counsel placed reliance on D.Vijayalakshmi v. D.Sanjeeva Reddy[1]. Per contra, learned counsel for the second respondent contends that when the police investigated both cognizable and non-cognizable offence, they can always file a charge sheet both in respect of cognizable and non-cognizable offence. Since the offence under Section 498-A I.P.C. is cognizable offence, now, the offence under Section 494 I.P.C. is also made cognizable offence in the State of A.P. and therefore, the police are empowered to investigate the complaint and file the charge sheet. It is contended that the bar contained under Section 198 Cr.P.C. does not attract to the facts of the present case and the learned counsel placed reliance on Radharapu Ravinder v. State of A.P.[2] The learned counsel further contends that whether the second respondent-complainant is legally wedded wife of the petitioner or not is a matter of evidence that can be gone into in the trial and it is sufficient to take into consideration the allegations made in the complaint and the charge sheet. In order to appreciate the rival contentions, it is necessary to briefly refer to the facts that give rise to filing of the charge sheet. On 12.5.2004 the second respondent lodged a complaint with the police of Chilkalguda Police Station stating that in the year 1999 her husband (petitioner herein) informed her that he is going to be married and went to Dubai. He returned to India on 11.7.2001 and since then they were moving together. The petitioner was with a woman Vijaya and he became father to a boy born to her. On 18.12.2001 they went to Yadagirigutta and the petitioner married the second respondent. Later, without her knowledge, the petitioner married one girl on 7.7.2002 and two days thereafter, she came to know the said marriage. On the basis of the said complaint, police registered a case for the offences punishable under Sections 494, 420 and 406 I.P.C. and took up the investigation. After investigation, police laid the charge sheet stating that from 1999 onwards both the second respondent and the petitioner cohabitated for a long period and that the petitioner married the second respondent at Yadagirigutta and lived together. The evidences which were with the second respondent were all disfigured by the petitioner. It is alleged that the petitioner kept his earlier marriage with the second respondent in dark and got married another girl by name Rajani and started living with her and thus he committed the offences punishable under Sections 420, 406 and 494 I.P.C. On filing the charge sheet, the learned Magistrate took the cognizance of the same and issued process. Questioning the same, the present petition is filed. The Apex Court in State of Orissa v. Sharat Chandra Sahu and another[3] at para 11 and 12 held as under: “11. Sub-seciton (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated a cognizable, the police had no option but to investigate the whole of the case and to submit a charge sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed. 12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub- section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.” The Apex Court after referring to its earlier judgment in Praveen Chandra Mody v. State of A.P.[4], wherein it was held that while investigating a cognizable offence and presenting a charge sheet for it, the police are not debarred from investigating any non- cognizable offence arising out of the same facts and including them in the charge sheet, held that the High Court was in error in quashing the charge under Section 494 IPC on the ground that the trial Court could not take cognizance of that offence unless a complaint was filed personally by the wife or any other near relation contemplated by Clause (c) of the Proviso to Section 198(1) and accordingly set aside the judgment of the High Court with a direction to the Magistrate to proceed with the charge sheet for the offences under Sections 498-A I.P.C. and also 494 I.P.C. as filed by the police. Further this Court in Radharapu Ravinder held that the Magistrate is empowered to take cognizance of the offence under Section 494 I.P.C. along with Section 498-A I.P.C. when the charge sheet is filed by the police after due investigation and rejected the contention that the Magistrate cannot take cognizance of the case for the offence under Section 494 I.P.C. and dismissed the petition filed under Section 482 Cr.P.C. to quash the proceedings. In view of the above, I do not see any merit in the contention advanced by the learned counsel for the petitioner that without examining the complainant, the Magistrate cannot take cognizance of the offence under Section 494 I.P.C. It is further argued by the learned counsel for the petitioner that the second respondent is not the legally wedded wife of the petitioner and that she has not obtained divorce from her husband Balachary and she continued as the wife of Balachary and therefore, she cannot file such complaint under Section 494 I.P.C. and on this ground alone the impugned proceedings are liable to be quashed. The proceedings in Maintenance Case under Section 125 Cr.P.C. are summary in nature and whether the second respondent continues to be the wife of Balachary and whether she is not the legally wedded wife of the petitioner are all the matters which have to be decided in the trial on appreciation of the evidence that may be adduced by the parties including the finding that recorded in M.C.No.99 of 2004 to which the second respondent-complainant can lead evidence and establish her marital status with the petitioner. It is well settled that the possible defences which are available to the accused cannot be a ground for quashing the proceedings. In the circumstances, I do not see any merits in the petition. The Criminal Petition is accordingly dismissed. _______________ A. GOPAL REDDY, J. AUGUST 20, 2010 Tsr. [1] 2001 CRI.L.J 1583 [2] 2006-ALT (Cri)-1-302 [3] AIR 1997 SC 1 [4] AIR 1965 SC 1185