THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2035 of 2008 (Dated : 10-11-2011) Between: Gone Gangadhar and others ....Petitioners A n d State of A.P., rep. by the Public Prosecutor, AP High Court and others .....Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2035 of 2008 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C by Accused Nos.1 to 6 in C.C.No.22 of 2007 on the file of the Special Judicial First Class Magistrate, Yellareddy, Nizamabad District to quash the proceedings therein. 2. A report came to be presented by Smt.Gone Indira, wife of the petitioner No.1 herein on 01.4.2005 at 1200 hours before the Station House Officer, Lingampet alleging inter alia that her marriage with the petitioner No.1 (A-1) was performed about 16 years back. She has been blessed with a daughter presently aged 15 years. Due to family disputes, she fell apart and she filed a case against her husband-1st petitioner herein and the case is pending. Pending trial of the said case, her husband-1st petitioner herein married one Muthavva, D/o Ramulu of Shetpalli Sangareddy. She along with her well wishers went to Shetpalli Sangareddy and found that the petitioner No.1 herein married Muthavva and their marriage was attended by the members of family of both the 1st petitioner herein and Muthavva. Basing on the said report, the S.H.O., Lingampet P.S., registered a case in Crime No.34 of 2005 under Section 494 IPC and took up investigation. LW-8-B.Balaji, Sub Inspector of Police, Lingampet P.S., took up investigation and examined six witnesses including the 2nd respondent herein during the course of investigation and recorded their statements. The petitioners herein surrendered themselves before the Station House Officer on 23.7.2005. The S.H.O., effected their arrest and produced them before the concerned Magistrate. After completing investigation, Lw- 8-B.Balaji, S.I of Police, Lingampet P.S filed charge sheet. 3. The learned Magistrate took cognizance of the offence under Section 494 IPC against the petitioners herein and others basing on the final report filed by the police under Section 173(2) Cr.P.C and registered the case as C.C.No.22 of 2007. Hence, this criminal petition with a prayer stated supra. 4. Notice to the respondent No.2 came to be ordered on 10-4- 2008. Despite notice being served on the 2nd respondent, she did not choose to enter appearance either in person or through a counsel. 5. Heard learned counsel appearing for the petitioners and learned Additional Public Prosecutor appearing for the 1st respondent-State. 6. Learned counsel appearing for the petitioners submits that under Section 198 Cr.P.C., the Court is not competent to take cognizance of the offence under Section 494 IPC basing on the final report filed by the police under Section 173(2) Cr.P.C and therefore, the very registration of the case as C.C.No.22 of 2007 basing on the final report filed by the police under Section 173(2) Cr.P.C in Crime No.34 of 2005 is contrary to the provisions of Code of Criminal Procedure and therefore, the proceedings in C.C.No.22 of 2007 are liable to be quashed. In nutshell, his contention is taking cognisance of the offence under Section 494 IPC basing on the report filed by the police under Section 173(2) Cr.P.C is bad in law. In support of his submissions, reliance has been placed on a Division Bench judgment of this Court in Mavuri Rani Veerabhadramma v. State of A.P.,[1] wherein it has been held that as per the amendment made to the 1st Schedule of the Criminal Procedure Code , Section 494 IPC is made cognizable and the police are empowered to investigate the case. But the Magistrate is precluded from taking cognizance of the case under Section 198 Cr.P.C., on the charge sheet filed by the police when the complaint is not presented before the Magistrate for taking cognizance of the offence. Para (23) of the cited judgment need to be noted and it is thus:- “( 23. ) The Reference is answered with the following conclusions: 1. If a complaint is filed under Section 200 of Cr.P.C. for the offence under Section 494 of I.P.C. before a Magistrate, he may take cognizance of the offence or postpone the issue of process either by making enquiry into the case by himself or direct an investigation to be made by the police officer or other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground to proceed. If the complaint is referred to the police for investigation and if the police files either the charge sheet showing that there is prima facie material to proceed against the accused or that there is no case to take cognizance of the offence, the Magistrate is empowered to take cognizance of the offence irrespective of the result of the investigation and it amounts to sufficient compliance of Section 198 of Cr.P.C. 2. The police may also receive a complaint for the offence under Section 494 of I.P.C. and register a crime. As per the amendment of the schedule, Section 494 of I.P.C. is made cognizable and the police are empowered to investigate the case. But the Magistrate is precluded from taking cognizance of the offence under Section 198 of Cr.P.C. on the charge sheet filed by the police, when a complaint is not presented before the Magistrate for taking cognizance of the offence. 3. If a complaint for the offence under Section 494 of I.P.C. is lodged along with other cognizable offences before the police and if the police files a charge sheet, the Court can take cognizance of the offence under Section 494 of I.P.C. also along with other cognizable offences by virtue of Section 155 (4) of Cr.P.C.” 7. In view of the settled proposition of law, taking cognizance of the offence under Section 494 IPC by the learned Magistrate on the basis of the final report filed under Section 173(2) Cr.P.C cannot be sustained. 8. Accordingly, the Criminal Petition is allowed quashing the proceedings in C.C.No.22 of 2007 on the file of the Judicial First Class Magistrate, Yellareddy. _____________________ B.SESHASAYANA REDDY, J Dt.10-11-2011 *RAR [1] 2007(1) ALD (Crl.) 13(AP)