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Abuse of the process of law, 498A quash on territorial jurisdiction

Andhra High Court

Rajaram Venkatesh And Ors.
vs
The State Of Andhra Pradesh

And … on 21 September, 1992
Equivalent citations: 1993 (1) ALT Cri 106, 1993 78 CompCas 28 AP, 1993 CriLJ 707

ORDER

ORDER

1. The petitioners herein are respectively accused 1 to 5 in C.C. No. 120 of 1991 on the file of the learned IInd Additional Judicial First Class Magistrate, Kakinada and they pray of the quashing of the said proceedings on the ground that the cognizance of the offence itself was barred by time and that the learned Magistrate at Kakinada had no territorial jurisdiction and that the initiation of the Criminal prosecution against the petitioners amounted to abuse of the process of the Court.

2. The 2nd petitioner is the father and petitioners 3 to 5 are the sisters, of the 1st petitioner. The 2nd respondent married the 1st petitioner. It is not in dispute that the 1st petitioner and the 2nd respondent were married at Hyderabad on 10-5-1987 and that after the marriage they resided at Hyderabad for a couple of weeks and that about the end of May, 1987 they went to Bombay and resided at plot No. B-17 in Chembur in the house of the 2nd petitioner.

3. It is the case of the 2nd respondent that at the time of her marriage, her mother gave Rs. 25,000/- cash and also gold ornaments and other silver and house-hold articles worth about Rs. 1,00,000/- to the 1st petitioner and that the petitioner were not satisfied with the money and articles given at the time of the marriage and wanted more cash and articles like colour T.V., V.C.R. and Refrigerator to be brought by the 2nd respondent. The 2nd respondent’s father died long back and her mother is aged about 70 years. As the parental family of the 2nd respondent was not in a position to give more money and articles demanded by the petitioners, the petitioners harassed and illtreated the 2nd respondent and beat her and abused her. She even tried to commit suicide. According to her, finally on 16-5-1988 the 1st petitioner with the active co-operation of petitioners 2 to 5, pushed her away from their house demanding further dowry amount of Rs. 30,000/- and since then she had been living in her mother’s house at Kakinada. The money and the gold, silver and other article given to the 1st petitioner at the time of the marriage were retained by him and he had not been paying any maintenance to her and hand not taken her back for marital life and continued to demand money even when she was living with her mother at Kakinada. Alleging all these facts, she filed a criminal complaint dated 8-4-1991 before the IInd Additional Judicial First Class Magistrate at Kakinada through her advocate Sir T. V. Ramana and the said complaint was numbered as C.C. (Sr. No. 2290) of 1991. On 12-4-1991 the counsel for the 2nd respondent i.e., Sri T. V. Ramana endorsed on the said complaint petition” and the complaint was “dismissed since not pressed” by the learned Magistrate. Thereafter the 2nd respondent through the same advocate Sr. T. V. Ramana filed on 19-4-1991 a second complaint dated 18-4-1991 before the IInd Additional Judicial First Class Magistrate, kakinada more or less alleging the same facts as in the first complaint dated 8-4-1991 and in addition stated that in January, 1991 the 1st and 2nd petitioners came to the house of the 2nd respondent and threatened her and her mother to face consequences like divorce and second marriage by the 1st petitioner if they did not pay the amount demanded by them, and that thereupon the 2nd respondent and her mother gave a Police report on 4-2-1991 to the Station House Officer of the II town Police Station, Kakinada, and that the police did not take any action. No mention was made therein of the 1st complaint dated 8-4-1991.

4. On 19-4-1991 the learned Magistrate forwarded the said complaint to the Station House Officer, II Town Police Station, Kakinada under S. 156(3) of the Cr.P.C. for investigation. The police registered Crime No. 43 of 1991 under S. 498-A I.P.C. and investigated and filed the charge sheet dated 11-7-1991 under S. 498-A read with S. 34, I.P.C. read with S. 156(3) Cr.P.C. and the Magistrate took the charge sheet on file as C.C. No. 120 of 1991 and issued summons to the petitioners herein. The chargesheet reiterated the allegations in the complaint filed by the 2nd respondent but significantly omitted the allegation that in January, 1991 the 1st and 2nd petitioners came to the house of the 2nd respondent and threatened her and her mother to face the consequences like divorce and second marriage etc., if they did not pay the amounts demanded by them and that thereupon the 2nd respondent and her mother gave a police complaint to the Station House Officer, II Town Police Station, Kakinada on 4-2-1991. The chargesheet mentioned that in spite of the interference of L.Ws. 2, 4, 5 and 6 for settlement of dispute, the 1st Petitioner kept deaf ear and that L.Ws. 7 to 10 who were close relatives of the family of the 2nd respondent, knew about the ill-treatment by the petitioners towards the 2nd respondent. Along with the charge sheet the statements of the list witnesses were also filed. As per the chargesheet, the 1st petitioner is liable for punishment under S. 498-A read with S. 34, I.P.C. and petitioners 2 to 5 are also liable for punishment for instigating and supporting the 1st petitioner. Pending the investigation, petitioners 2 to 5 were arrested on 6-7-1991 and were released on their personal bonds as they obtained anticipatory bail from the Court of Session for Greater Bombay.

5. After summons, the petitioners filed Crl.M.F. No. 2040 of 1991 under S. 239 Cr.P.C. before the learned IInd Additional Judicial First Class Magistrate, Kakinada for their discharge contending that the complaint against them was without any basis and that the learned Magistrate had no jurisdiction to try them and to exempt them from personal attendance and to punish the complainant i.e., the 2nd respondent herein, under S. 211, I.P.C. etc. The said petition was dismissed by the learned Magistrate by his order dated 4-11-1991. Thereafter, the petitioners preferred the present Criminal Petition before this Court on 25-11-1991.

6. The main contention of the learned counsel for the petitioners, Mr. P. M. Gopala Rao, is that the first complaint of the 2nd respondent dated 8-4-1991 was allowed to be dismissed and therefore the second complaint dated 18-4-1991 amounted to abuse of the process of the Court and therefore the charge sheet which repeated the same facts as in the first complaint ought to have been rejected. It is therefore, necessary to compare and contrast the two complaints. Paragraphs 1 to 4 of the two complaints are identical. Paragraph 7 of the complaint dated 8-4-1991 and paragraph 6 of the complaint dated 18-4-1991 are same except that the date of the police report is different and that the sentence “the copy of the report not maintained by the complainant hence not enclosed in this complaint” in the second complaint, does not find place in paragraph 7 of the first complaint : in the first complaint, police report was given on 4-2-1990; in the latter complaint the date becomes 4-2-1991. Paragraph 8 of the first complaint and paragraph 7 of the second complaint are also same except that the provision of law under which the petitioners are to be punished i.e., Section 498-A is mentioned in paragraph 7 of the second complaint. Paragraphs 5 and 6 of the complaint dated 8-4-1991 are as follows :-

“5. Ultimately the first accused with the co-operation of A-2 to A-5. Finally on 16-05-88 the first accused with the active co-operation of A-2 to A-5 pushed away the complaint from his house and since then the complainant is taking shelter in her mother’s house at Kakinada. The above said movables (Gold and Silver Articles) and belongings of complainant are in the custody of the first accused. The first accused has not been paying any maintenance to the complainant and has not taken her back for marital life in spite of the advice of elders. The accused 1 to 5 are not interested in the whims and caprices of the complainant, but they are only interested more in money, and they have subjected her to physical torture on and on, on account of this greed. Thus they have committed an offence under S. 498-A of Indian Penal Code.

6. The complainant herself approached the first accused to allow her to live with him for a happy and peaceful marital life, but the first accused bluntly refused that it is not possible without taking dowry. Recently the complainant came to know that the first accused again will try to marry another lady for huge amount of dowry and articles.”

In the place of paragraphs 5 and 6 of the complaint dated 8-4-1991, a modified paragraph 5 was introduced in the complaint dated 18-4-1991 which is as follows :-

“On 16-5-1988 the first accused with the active co-operation of A-2 to A-5 pushed away the complaint from his house for bring further dowry amount of Rs. 30,000/- from the complainant’s mother and since then the complainant is taking shelter in her mother’s house at Kakinada. The above said movables gold and silver articles and also belonging to the complainant are in the custody of first accused. The first accused had not been paying any maintenance to the complainant and has not taken her back for marital life. In spite of the advised the elders and accused 1 to 5 are not interested to whims and caprices of the complainant, but they are only interested more in money and they have subjected her to physical torture on and on, on account of this greed. In spite of the request of the complainant accused did not mend their ways and continuing her to pay amounts demanded by them, even when she is living with her mother at Kakinada. In fact A-1 and A-2 came to the house of the complainant and threatened the complainant and her mother to face the consequence like divorce, second marriage etc, if they do not pay the amount demanded by them. This has happened in the month of January, 1991, fearing about, their physical safety and also unable to no longer bear the harassment for dowry even at Kakinada.”

7. The petitioners contend that the 2nd respondent, having deserted the 1st petitioner for the last 3 years suddenly filed a false private complaint under S. 498-A, I.P.C. before the learned Magistrate at Kakinada with all untenable allegations only to harass and humiliate them and that there are no prima facie grounds to take cognizance of the same and that it should have been dismissed in limine by the learned Magistrate instead of sending it to the police under S. 156(3), Cr.P.C. for investigation. They also allege that the police examined only interested witnesses and submitted a chargesheet on which the learned Magistrate issued summons to the petitioners. According to the petitioners the chargesheet itself clearly speaks and indicates that no cause of action arose within the jurisdiction of the learned Magistrate at Kakinada and that entertaining the said complaint itself was without jurisdiction and arbitrary. According to them, on the allegations in the chargesheet filed by the police, the cause of action, if any, arose only in Bombay and no offence, if any, was committed within the jurisdiction of the learned Magistrate at Kakinada. The petitioners also state that the chargesheet is vague and that there is no allegation therein that any of the petitioners visited Kakinada town and harassed the 2nd respondent at any time. The first complaint dated 8-4-1991, given a few days before the second complaint, did not contain any statement about the visit of any of the petitioners to Kakinada during January, 1991 or at any time, and therefore the jurisdictional objection was found to be insuperable. Mr. Gopala Rao contends that the alleged visit by the 1st petitioner and another petitioner to Kakinada was purposely concocted and mentioned in the second complaint only to get over the jurisdictional objection and that the said attempt was naive and ill-conceived is apparent from the fact that whereas in the second complaint it was stated that the 1st and 2nd petitioners came to Kakinada, in the statements of witnesses examined by the police filed along with the chargesheet, it was stated that the 1st petitioner along with his sister came to Kakinada : which of the sisters came was not stated. In the chargesheet itself no mention was made of the visit of any of the petitioners to Kakinada. The learned counsel for the petitioners also points out that the chargesheet itself was filed after more than 3 years from the date of the 2nd respondent leaving the 1st petitioner’s house and that the proceedings are nothing but gross abuse of the process of Court. The first complaint was allowed to be dismissed and only a week thereafter the second complaint was filed without mentioning the first complaint. There was no explanation whatsoever for not mentioning about the alleged visit of the petitioner to Kakinada during January, 1991. All these circumstances establish that the alleged visit is a transparent fabrication.

8. The 3rd petitioner also filed an additional affidavit dated 12-3-1992 stating that the 1st petitioner filed on 17-5-1991 M.J. Petition No. A/721 of 1991 on the file of the Family Court Bombay at Bandra against the 2nd respondent herein for dissolution of marriage on the ground of desertion by her on 16-5-1988 and cruelty. The family Court took cognizance of the same and issued summons and referred the matter to the marriage counsellor and subsequently the family Court decreed the said petition on 13-12- 1991 and granted divorce on the ground of cruelty and desertion. The 3rd petitioner also stated in the additional affidavit that the 2nd respondent filed a complaint on 8-4-1991 on the same facts as in the second complaint dated 18-4-1991 and that the 1st complaint was heard by the learned Magistrate and was dismissed on 12-4-1991 as withdrawn on the ground of want of jurisdiction and that the second complaint dated 18-4-1991 was presented suppressing the said fact. The 3rd petitioner submits that under the circumstances, the second complaint is an abuse of process of law and ought not to have been entertained.

9. The first contention of the learned counsel for the petitioners Mr. P. M. Gopala Rao is that the second complaint dated 18-4-1991 cannot be entertained because of the dismissal of the similar earlier complaint dated 8-4-1991 which was numbered as C.C. (Sr. No. 2209) of 1991. On the other hand, the learned counsel for the 2nd respondent Mr. C. Padmanabha Reddy submits that a second complaint is not barred. He also submits that the first complaint was not enquired into and it was not taken on file and that it was not dismissed on merits.

10. The question whether, and in what circumstances, a second complaint can be entertained has been considered by the Supreme Court in Pramatha Nath v. Saroj Ranjan, . In that case, the Chief Presidency Magistrate of Calcutta took cognizance of the second complaint after considering the whole material placed before him and issued process against the appellants before the Supreme Court after holding that the previous complaint and the result thereof was no bar to the filing of the second complaint and that the second complaint was not brought with a view to black-mail the accused, and the same was upheld by a Special Bench of the Calcutta High Court in a revision petition questioning the action of the learned Chief Presidency Magistrate. The first complaint was heard by the Chief Presidency Magistrate who after examining all the witnesses produced before him, dismissed it. A revision petition preferred against the dismissed of the first complaint was also dismissal by the Calcutta High Court, and an appeal preferred before the Supreme Court on special leave granted was dismised as withdrawn. It was after that that the second complaint was filed with the same allegations and one further allegation. In the appeals preferred before the Supreme Court against the decision of the Special Bench of the Calcutta High Court, the important question considered by the Supreme Court was whether the second complaint should have been entertained. In the majority judgment, the Supreme Court held as follows (at page 793; of Cri LJ) :-

“Under the Code of Criminal Procedure the subject of “Complaints to Magistrates” is dealt with in Chapter XVI of the Code of Criminal Procedure. The provisions relevant for the purpose of this case are Sections 200, 202 and 203. Section 200 deals with examination of complainants and Sections 202, 203 and 204 with the power of the Magistrate in regard to the dismissal of complaint or the issuing of process. The scope and extent of Sections 202 and 203 were laid down in The scope of enquiry underS. 202 is limited to finding out the truth or otherwise of the complaint in order to determine whether process should issue or not and S. 203 lays down what materials are to be considered for the purpose. Under S. 203 Criminal Procedure Code the judgment which the Magistrate has to form must be based on the statements of the complainant and of his witnesses and the result of the investigation or enquiry if any. He must apply his mind to the materials and form his judgment whether or not there is sufficient ground for proceeding. Therefore if he has not misdirected himself as to the scope of the enquiry made under S. 202, Criminal Procedure Code, and has judicially applied his mind to the material before him and then proceeds to make his order it cannot be said that he has acted erroneously. An order of dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into. ILR 12 Lah 9 at p. 12 : (AIR 1930 Lah 879 at p. 880); AIR 1949 Pat 256; AIR 1949 Bom 384; Doraisami v. Subramania, AIR 1918 Mad 484.

xxx xxx xxx xxxx xxxx Taking first the question of fresh evidence, the view of some of the High Courts that it should be such that it could not with reasonable diligence have been adduced is, in our opinion, a correct view of the law. It cannot be the law that the complainant may first place before the Magistrate some of the facts and evidence in his possession and if he fails he can then adduce some more evidence and so on. That in our opinion, is not a correct view of the law.”

On the facts of that case the majority view was that it was difficult to hold that the new fact mentioned in the second complaint “was not known to the complainant in the first complaint and was a new fact which could not, with reasonable diligence, be adduced by him”. The majority also held that the order made by the previous Chief Presidency Magistrate dismissing the first complaint was not in any manner absurd, unjust or foolish and that it could not be said that the Magistrate ignored any principles which were necessary to apply under sections 202 and 203 of the Cr.P.C. etc. and in the circumstances held that the bringing of the fresh complaint was a gross abuse of the process of the Court and was not with the object of furthering the interests of justice.

11. In the present case, the docket sheet relating to the first complaint shows the following notings :

“8-4-91 : Return (1) How this Court has jurisdiction to take cognizance should be complaint.

(2) List of documents should be filed.

Sd/- P. Satyanarayana, 8/4/91 II A.M.M.

Represented by objection No. 1 stated that how this Court jurisdiction taken cognizance. Under S. 198-A clearly says where the offence is continuing are, and continues to be committed in more local areas than one. Under this clause the Honourable court may take cognizance. Where the petitioner resides.

Police report not submitted one copy drafted the said copy in the II Town P.S. (not pressing) by

Sd/- x x x x x Advocate 9-4-91.

Represented by As per Supreme Court decision where the petitioner last resided, can file a private complaint within the local jurisdiction of the Honourable Court.

The Honourable Court can take cognizance of offence. Kindly call at bench I will elaborately explain to the Honourable Court.

Sd/- by x x x x x Advocate 9-4-91

For hearing at request to her advocate as absents. Call on 12-4-91.

Sd/- P. Satyanarayana 9-4-91.

12-4-91 : Hearing.

Not press this complaint petition.

by Sd/- x x x x Advocate 12-1-91.

dismissed since not pressed.

Sd/- P. Satyanarayana 12-4-1991.”

From the said notings it is evident that an objection was taken as to the jurisdiction of the learned Magistrate to entertain the complaint dated 8-4-1991 as there was no allegation in the said complaint that anything happened at Kakinada after the 2nd respondent came away from Bombay on 16-5-1988. Under S. 201 of the Cr.P.C. if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall (a) if the complaint is in writing, return it for presentation to a proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. Therefore, the learned Magistrate could not have dismissed the said complaint if he had no jurisdiction and could have only returned the complaint. Obviously the 2nd respondent did not want the learned Magistrate to enquire into the question of jurisdiction and did not want to take the risk of a negative finding on that question and opted not to press the complaint. UnderS. 198-A of the Cr.P.C., “no Court shall take cognizance of an offence punishable under S. 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption”. When the 2nd respondent did not want to press the complaint, by virtue of the said S. 198-A, the learned Magistrate could not have proceeded further and taken cognizance of the offence and therefore dismissed the said complaint. Thus the 2nd respondent willingly and wantonly allowed the dismissal and did not question the same.

12. After allowing the first complaint to be dismissed as not pressed on 12-4-1991, the 2nd respondent gave the second complaint dated 18-4-1991 to the same learned Magistrate at Kakinada adding the further allegation that the 1st and 2nd petitioners herein came to Kakinada in January, 1991. The 2nd respondent has not given any reason whatsoever for not mentioning the fact that the 1st and 2nd petitioners came to Kakinada in January, 1991, in the first complaint. In the circumstances, had the learned Magistrate taken cognizance of the offence on the second complaint, it might have been possible for the petitioners to complain relying on the decision of the Supreme Court in Pramatha Nath v. Saroj Ranjan, . But as it happened the learned Magistrate referred the second complaint to the police for investigation under S. 156 of the Cr.P.C.

13. But the learned counsel for the petitioners Mr. P. M. Gopala Rao insists that the learned Magistrate took cognizance of the offence under S. 498-A of the I.P.C. after entertaining the second complaint and directed the police to investigate and file the chargesheet. This was infact part of the first ground taken in the Criminal Petition in the following manner :

“But curiously in this case a private complaint was filed before the Magistrate who took its cognizance and directed the Police to investigate and file the chargesheet. Accordingly the Police who has no option but submitted their chargesheet even there was no case is made out. It is illegal and caused prejudice to the petitioners.”

Mr. P. M. Gopala Rao contends that the learned Magistrate did not follow proper procedure and that he erred in not examining the complainant under S. 200, Cr.P.C. when he had received the complaint and had taken cognizance. The learned counsel contends that even after taking cognizance on a complaint, the Magistrate can direct investigation by the Police under S. 156(3) read with S. 202 of the Cr.P.C. He relies on the decision of a learned Single Judge of this Court in Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu, 1991 Cri LJ 1419, wherein it is held as follows :-

“As noted supra, on receipt of a complaint under S. 200, Cr.P.C., the Magistrate shall record the sworn statements of the complainant and the witnesses, if any, present and (i) may take cognizance of the offence under S. 190(1)(a) and issue process, or (ii) postpone the issue of process under S. 202 and (a) inquire into the case himself or (b) direct investigation by police. Thus, the discretion under S. 202, Cr.P.C., lies with the Magistrate either to inquire into the case himself or direct investigation by the police. It is also open to the Magistrate to issue or postpone issue of process. While exercising his discretion, the Magistrate scrutinises the complaint, the sworn statement of the complainant and also of those recorded from the witnesses, if any, and then arrives at a decision as to whether to take cognizance of the offence under S. 190(1)(a) or to postpone issue of process under S. 202, Cr.P.C. or to refer the case to the police under S. 156(3), Cr.P.C. for investigation. It is only in case of deciding that the material is not sufficient to take cognizance of the offence he may refer the matter to the police under S. 156(3) for purposes of investigation. Therefore, when once the Magistrate after scrutinising the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to S. 156(3).”

I do not agree with the learned counsel for the petitioners. The law in this regard is clearly laid down by the Supreme Court and the learned Single Judge could not have said that even after taking cognizance and acting under S. 200, Cr.P.C. the Magistrate can refer the matter to the police under S. 156(3) of Cr.P.C. for investigation if he meant that, the observations of the learned single Judge would be clearly per incurriam. Long back, in R. R. Chari v. State of U.P., , the Supreme Court explained the connotation of the word ‘cognizance’ as follows (at page 210; of AIR) :-

“In Gopal v. Emperor, AIR (30) 1943 Pat 245 : (45 Cr LJ 177 (SB)) it was observed that the word ‘cognizance’ is used in the Code to indicate the point when the Mag. or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings. It is the condition precedent to the initiation of proceedings by the Mag. The Ct. noticed that the word ‘cognizance’ is a word of somewhat indefinite import and it is perhaps not always used in exactly the same sense.

After referring to the observations in Emperor v. Sourindra Mohan, 37 Cal 412 : (6 IC 8), it was stated by Das Gupta, J., in Supdt. Remembrancer of Legal Affairs, W. G. V. Alani Kumar, , as follows :-

“What is taking cognizance has not been defined in the Crl.P.C. I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Mag. has taken cognizance of any offence under S. 190(1)(a), Crl.P.C. he must not only have applied his mind to the contents of the petn. but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chap., proceeding under S. 200  thereafter sending it for inquiry report under S. 202. When the Mag. applies his mind not for the purpose of proceeding under the subsequent sections of this Chap. but for taking action of some other kind e.g. ordering investigation …….. under S. 156(3), or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.”

In our opinion that is the correct approach to the question before the Ct.”.

Then in Jamuna Singh v. Bhadai Shah, , the Supreme Court observed that the Code (of 1898) did not contain any definition of the words “institution of a case” and that a case could be said to be instituted in a Court only when the Court took cognizance of the offence alleged therein and held as follows (at page 470; of Cri LJ) :-

“Section 190(1) of the Code of Criminal Procedure contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts – that is, facts constituting the offence – made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate’s own knowledge or suspicion that such offence has been committed. (at page 471; of Cri LJ) In the case before us the Magistrate after receipt of Bhadai Shah’s complaint proceeded to examine him under S. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under S. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by S. 200 the Magistrate could have issued process at once under S. 204 of the Code of Criminal Procedure or could have dismissed the complaint under S. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under S. 202 of the Code of Criminal Procedure. That section empowers the Magistrate to ‘postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint’. If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under S. 203 of the Code of Criminal Procedure.

xxx xxx xxx xxx It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under S. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under S. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under S. 202 of the Code of Criminal Procedure and not under S. 156(3) of the Code.”

The matter has been elaborately dealt with by the Supreme Court in D. Lakshaminarayana v. V. Narayana, after comparing the relevant provisions of the 1898 Code and the 1973 Code, it was held as follows (at page 1365; of Cri LJ) :-

“It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words ‘may take cognizance’ which in the context in which they occur cannot be equated with ‘must take cognizance’. The word ‘may’ gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. 156(3) will be conclusive to justice and save the valuable time to the Magistrate from being wasted in enquiring into a matter which was 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, himself.

This raises the incidental question : What is meant by ‘taking cognizance of an offence’ by the Magistrate within the contemplation of Section 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.

xxx xxx xxx xxx The position under the Code of 1898 with regard to the power of a Magistrate having jurisdiction to send a complaint disclosing a cognizance offence – whether or not triable exclusively by the Court of Session – to the Police for investigation under section 156(3), remains unchanged underthe Code of 1973. The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation.

Section 156(3) occurs in Chapter XII, under the caption : ‘Information to the Police and their powers to investigation’; while Section 202 is in Chapter XV which bears the heading ‘Of complaints to Magistrate’. The power to order police investigation under S. 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct, within the limits circumscribed by that section, an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding.’ Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”

Once again in H. S. Bains v. State (Union Territory of Chandigarh) . The Supreme Court, after referring to Sections 200 to 203 of the Criminal Procedure Code, observed as follows (at pages 1310 1311; of Cri LJ) :-

“It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203. If in his opinion there is sufficient ground for proceeding he may issue process under S. 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complain, the Magistrate may, instead of taking cognizance of the offence, order an investigation under section 156(3). The police will then investigate and submit a report under section 173(1). Thus, a Magistrate who on receipt of a complaint, orders an investigation under section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things; (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”

In H. S. Bains’s case, . The Supreme Court further clarified that the mere fact that the Magistrate had earlier ordered an investigation under section 156(3) and received a report under section 173 will not have the effect of total effacement of the complaint and therefore will not be barred from proceeding under sections 200, 203 and 204 on the basis of the original complaint and that the Magistrate is not bound by the conclusions drawn by the police. More recently, in M/s. India Carat Pvt. Ltd. v. State of Karnataka, , after referring to the various provisions in Chapters XIV, XV and XVI of the Cr.P.C. the Supreme Court succinctly stated the various courses open to the Magistrate upon receiving a complaint as follows (at page 966; of Cri LJ) :-

“From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him. The Magistrate may take cognizance of the offence at once and proceed to record statements of the complainant and the witnesses present under section 200. After recording those statements, if in the opinion of the Magistrate there is no sufficient ground for proceeding, he may dismiss the complaint under section 203. On the other hand if in his opinion there is sufficient ground for proceeding he may issue process under section 204. If, however, the Magistrate thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by the police officer or such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is not sufficient ground for proceeding. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under section 200 or Section 202, he may order an investigation to be made by the police under section 156(3). When such an order is made, the police will have to investigation the matter and submit a report under section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and issue process straightway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigation Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.”

14. In view of the clear pronouncements of the Supreme Court in the above referred decisions, there cannot be any doubt whatsoever that there cannot be any reference of the case to the police under Section 156(3) of the Cr.P.C. for investigation after taking cognizance of the offence under section 190(1)(a) and recording the statements of the complainant and the witnesses present under Section 200, Cr.P.C. – after taking such cognizance the Magistrate could order investigation by the police only under section 202, Cr.P.C. and not under section 156(3) of the Cr.P.C. The Supreme Court graphically demarcated the two investigations in D. Lakshminarayana’s case , by stating that the two investigations operate in distinct spheres at different stages and that police investigation under section 156(3) is at the pre-cognizance stage and the investigation directed under Section 202(1) is at the post-cognizance stage when the Magistrate is already in seisin of the case. Therefore I have to state with due respect, that the learned single Judge is not right if he meant in Polavarapu Jagadiswara Rao’s case, 1991 Cri LJ 1419, that the Magistrate can refer the case to the police under Section 156(3) of the Cr.P.C. for investigation after scrutinising the complaint and taking the sworn statements of the complaint and the witnesses, if any, under Section 200 of the Cr.P.C. In G. L. B. Poornima v. State of A.P., 1991 (1) APLJ 359, also the learned single Judge of this Court observed as follows (at page 360) :-

“As submitted by Mr. Padmanabha Reddy the Court on receipt of a complaint filed shall examine on oath the complainant and the witnesses if any, present under section 200, Cr.P.C. and thereafter the Court if thinks necessary may proceed as per Section 202, Cr.P.C. by postponing the issue of process and may either inquire into the offence himself or direct investigation by the police under Section 156(3), Cr.P.C. ………….

xxx xxx xxx xxx Now recalling the stage of Section 202, Cr.P.C. whereunder either inquiry was conducted by the Court or report under section 156(3) was called for from the police the Court after considering the statements on oath if any of the complainant and the witness and the result of the inquiry or investigation if ordered under Section 202, Cr.P.C. if there are no sufficient grounds for proceeding further shall dismiss the complaint.”

Here also the learned single Judge, with due respect to him, is not right in stating that after examining on oath the complainant and the witnesses, if any, under section 200, he may direct investigation by the police under section 156(3) of the Cr.P.C. because investigation by the police under section 156(3) is impermissible once cognizance is taken by the Magistrate on a complaint under section 190(1)(a) and examination of the complainant under Section 200, Cr.P.C. As ruled by the Supreme Court in Jammuna Singh’s case, , the Magistrate can direct investigation of the case by the police under Section 156(3), Cr.P.C. without taking cognizance; if, however, he takes cognizance, he can order investigation by the police only under section 202 of the Cr.P.C. and not under section 156(3) of the Cr.P.C. The Supreme Court also pronounced in Jamuna Singh’s case, , on the facts of the case (at page 1544; of AIR 1964); “As it is clear here from the very fact that he (the Magistrate) took action under S. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation only under S. 202 of the Code of Criminal Procedure and not underS. 156(3) of the Code.”

It is not necessary for me to refer the matter to a Division Bench because the observations of the learned single Judge both in Polavarapu Jagadiswara Rao’s case, 1991 Cri LJ 1419, and in G. L. B. Poornima’s case, 1991 (1) APLJ 359, that even after cognizance the Magistrate can under section 202of the Cr.P.C. direct police investigation under section 156(3) of the Cr.P.C., are clearly per incuriam. In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, , a Constitution Bench of the Supreme Court held :

“The latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court.”

15. The learned counsel for the petitioners, Mr. P. M. Gopala Rao, is therefore not right in contending that the learned Magistrate had taken cognizance of the offence under section 190(1)(a) and thereafter directed the police to investigate under section 156(3) of the Cr.P.C. The facts of the present case clearly establish that the learned Magistrate ordered an investigation to be made by the police under section 156(3) without taking cognizance of the offence and consequently without following the procedure laid down under Section 200 or Section 202 of the Cr.P.C. Therefore the contention of Mr. P. M. Gopala rao that the learned Magistrate erred in directing investigation under section 156(3) of the Cr.P.C. without examining the complainant and the witnesses, if any, under Section 202, has no merit whatsoever. In this connection it has to be stated that the facts of the present case disclose that the learned Magistrate took cognizance only under section 190(1)(b) upon receiving the police report i.e., the charge-sheet dated 11-7-1991.

16. The next contention of Mr. P. M. Gopala Rao is that ordering investigation by the Magistrate under section 156(3) of the Cr.P.C. is a judicial act and that reasons ought to have been given by the Magistrate for exercising the said discretion and that in as much as no reasons whatsoever were given by the learned Magistrate in referring the said second complaint dated 18-4-1991 to the police for investigation under section 156(3), he committed an error which vitiates all subsequent proceedings. I do not agree. In D. Lakshminarayana’s case, , referred to above, the Supreme Court observed while discussing sub-section (1) of Section 190 dealing with cognizance of offences by Magistrate, that cognizance of offences by Magistrates, that the use of the words ‘may take cognizance’ in the said sub-section (1) cannot be equated with ‘must take cognizance’ and that the word ‘may’ gives a discretion to the Magistrate in the matter. Then the Supreme Court also adumbrated the manner in which the discretion is to be exercised by the Magistrate by observing as follows :-

“If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was 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, himself …………

xxx xxx xxx xxx
…… If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence.”

From the above observations of the Supreme Court, it is clear that the said discretion to be exercised by the Magistrate is a judicial discretion and that he has to exercise it for good reasons. But I am of the view that when the police take up investigation pursuant to the order of the Magistrate under section 156(3) of the Cr.P.C. and submit a report under section 173 after the completion of investigation, the said report cannot be faulted merely on the ground that the Magistrate did not exercise the said discretion properly or that he did not give reasons for the exercise of the said discretion in the manner he did. I do not wish to further pursue this question in the view I have taken of the matter finally.

17. The main contention of Mr. P. M. Gopala Rao is that the learned Magistrate at Kakinada has no territorial jurisdiction to take cognizance of the offence and that the proceedings are barred by limitation because no cognizance of the offence under section 498-A of the I.P.C. can be taken after three years. He submits that the police report or charge-sheet does not make any mention of any of the petitioners having come to Kakinada during January, 1991 and that there is no allegation whatsoever therein that the petitioners committed any offence within the territorial jurisdiction of the learned Magistrate at Kakinada. According to him, there is no allegation in the charge-sheet that the petitioners subjected the 2nd respondent to any illtreatment after the came away from Bombay on 16-5-1988 and therefore even assuming that any offence as alleged was committed by the petitioners prior to 16-5-1988, no cognizance can be taken of that offence after 16-5-1991 and that therefore the taking of the cognizance of the said alleged offence on the basis of the charge-sheet dated 11-7-1991 is barred by time under section 468 of the Cr.P.C. Mr. P. M. Gopala Rao argues that even if the material filed along with the charge-sheet like the statement of L.Ws. and the original complaint dated 18-4-1991 can be looked into for the purpose of taking cognizance of the offence alleged, there is absolutely no basis for proceeding on the basis that any of the petitioners came to Kakinada case of the 2nd respondent that the 1st petitioner along with another petitioner came to Kakinada in January, 1991 is a fabrication and the second complaint itself is an abuse of the process of the Court. According to him, the first complaint of 8-4-1991 was not pressed by the 2nd respondent because she and her advocate Mr. T. V. Ramana knew very well that it would be rejected by the learned Magistrate at Kakinada on the ground that he did not have any territorial jurisdiction to take cognizance. If really the 1st petitioner along with another petitioner did in fact go to Kakinada in January, 1991, it is inconceivable that the said fact would not be mentioned in the said complaint of 8-4-1991. The learned counsel submits that the 2nd respondent had not mentioned anything about the first complaint in her second complaint dated 18-4-1991. There is no explanation whatsoever as to why the said crucial fact about the visit of the 1st petitioner and another petitioner during January, 1991 to Kakinada, if true, was not mentioned in the first complaint of 8-4-1991. According to the learned counsel for the petitioners the suppression of the first complaint itself is a sufficient ground for immediate rejection of the second complaint. He relies on a decision of the Division Bench of the Bombay High Court in In Re. Mahadev Laxman, AIR 1925 Bom 258 : 1925 (26) Cri LJ 991, wherein the Division Bench held as follows :-

“We do not think, therefore, that the Bench Magistrates at Malvan had no jurisdiction to hear the complainant and to inquire into the second complaint because a similar complaint had already been dismissed by the First Class Magistrate. But we do think that there was a compelling duty on the complainant to inform the Bench Magistrates that he had previously filed a similar complaint which had been dismissed, because when the Court to which the second complaint is made becomes aware that a similar complaint has already been dismissed, it must necessarily exercise greater care in considering how to deal with the case.

Therefore, we might send back the case to the Bench Magistrate to reconsider their order taking into consideration the fact that a previous complaint was dismissed; but considering the conduct of the complainant we see no reason why we should do so.”

He therefore submits that the proceedings initiated by the 2nd respondent have to be quashed in exercise of the jurisdiction of this Court under section 482 of the Cr.P.C.

18. On the other hand, the learned counsel for the 2nd respondent Mr. C. Padmanabha Reddy submits that though in the charge-sheet nothing is mentioned about the visit of the 1st petitioner and another petitioner to Kakinada during January, 1991, at the time of taking cognizance on the basis of the police report, it is open to the learned Magistrate to look into all the other material filed along with the said report including the original complaint filed. He submits that all the list witnesses have confirmed that the 1st petitioner and his sister visited Kakinada during January, 1991 and that therefore at the state of cognizance there need not be any further assessment or appreciation of the statements of the list witnesses. According to him, at the stage of taking cognizance, the only question that has to be gone into is whether on the facts as alleged, any offence is made out or not and that if an offence is made out cognizance has to be taken. He submits that the learned Magistrate has rightly taken cognizance of the offence in the present case on the basis of the charge-sheet i.e., the police report and the material filed along with the police report and there is no legal infirmity in the said action of the learned Magistrate warranting interference in exercise of the inherent jurisdiction of this Court under section 482 of the Cr.P.C. He also relies on the decision of Allahabad High Court in Vijai Ratan v. State of U.P., 1988 Cri LJ 1581. There also the contention was raised by the husband, father-in-law and mother-in-law that the Courts at Ghaziabad had no jurisdiction to entertain the complaint filed by the wife complaining of the offence under section 498-A of the I.P.C. On that ground they sought the quashing of the proceedings initiated by the wife, under Section 482 of the Cr.P.C. It was not in dispute in that case that the marriage was performed at Ghaziabad and that after the marriage, she was taken outside Ghaziabad. The complaint by the wife was that she was illtreated and sent back to her father’s house at Ghaziabad demanding dowry. It is also stated in the complaint by the wife that letters containing false accusations were sent to her at Ghaziabad. This fact that letters were being received by the wife at Ghaziabad was taken into consideration by the learned single Judge of the Allahabad High Court in rejecting the petitioner of the husband, father-in-law and mother-in-law under Section 482, Cr.P.C. holding as follows :-

“The letters with false allegations are being received at Ghaziabad and this also must be resulting in the harassment of the woman. Rather, this harassment seems to be continued one. It started when demand for dowry was made outside Ghaziabad and it has continued when she is not being called from Ghaziabad and she has been left there in order to get the dowry. So the offence continues to be committed or it may be possible to say that the offence was partly committed outside Ghaziabad when she was mal-treated and it continues to be committed at Ghaziabad where she has been left and is not being called. So it seems that the Courts at Ghaziabad should have jurisdiction to try the offence of cruelty.”

It is obvious from the above passage that the fact that the letters were being sent to the wife even after she left Ghaziabad resulting in harassment to her was taken as the basis for holding that the Courts at Ghaziabad should have jurisdiction to try the offence of cruelty under section 498-A of the I.P.C. It is on that basis that the learned single Judge held in that case that the offence continued to be committed or that it may be possible to say that the offence was partly committed outside Ghaziabad when she was mal-treated and it continued to be committed at Ghaziabad where she was left and was not being called. The facts of the Allahabad case are therefore clearly distinguishable from the facts of the present case. Except alleging that the 1st petitioner along with another petitioner came to Kakinada during January, 1991, the 2nd respondent has not alleged that anything happened after she left Bombay on 16-5-1988 to Kakinada. She has not alleged that any letters were being written by any of the petitioners to her demanding dowry or that any one of the petitioners were coming to Kakinada demanding dowry prior to January, 1991. Therefore, the decision of Allahabad High Court in Vijai Ratan’s case, 1988 Cri LJ 1581, is clearly distinguishable and has no application to the facts of the present case. I am of the view that the mere fact that the 2nd respondent resides at Kakinada cannot give jurisdiction to the Magistrate at Kakinada to take cognizance of an offence under section 498-A of the I.P.C. in the absence of some act subjecting her to cruelty have occurred or taken place at Kakinada. That is the reason why the 2nd respondent has alleged in the second complaint that the 1st and 2nd petitioners came to Kakinada during January, 1991 to get over the question of jurisdiction.

19. It is to be noticed that whereas in the complaint dated 18-4-1991 it is alleged that the 1st and 2nd petitioners herein came to the house of the complainant i.e., the 2nd respondent herein in the Month of January, 1991 and threatened her and her mother to face consequences like divorce, second marriage etc., if they did not pay the amount demanded, there is absolutely nothing in the statements of the list witnesses that the 2nd petitioner i.e., the father of the 1st petitioner came to the house of the 2nd respondent at Kakinada. On the other hand, all the list witnesses say that the 1st petitioner and his sister came to Kakinada in January, 1991. L.W. 1 is the 2nd respondent herself and she states that her husband i.e., the 1st petitioner got three sisters and that all of them are staying at Bombay. She states “during the month of January, 1991 my husband and one of his sister came to Kakinada demanded me to come back to Bombay with the money as demanded by him and if I fail to give the money as demanded by him, my husband asked me to give him divorce so that he can re-marry another lady so that he can get more dowry”. She does not say anything about her father-in-law i.e., the 2nd petitioner having come to Kakinada along with her husband as alleged by her in the complaint dated 18-4-1991. What is surprising is she does not also state which of the sisters of her husband came to Kakinada along with him. There can be some explanation for others not stating which of the sisters came to Kakinada on the ground that they did not know them or their names; but there can be no explanation whatsoever for the 2nd respondent not mentioning which of the sisters came to Kakinada in January, 1991. L.W. 2 the brother of the 2nd respondent merely repeats what the 2nd respondent stated. He states “in the month of January, 1991 my brother-in-law with his sister came to our house at Kakinada, asked my sister to come back with the money or articles as demanded by him failing which he asked my sister to give divorce so that he can marry another lady and get more money as dowry”. The same thing is repeated by L.W. 3 the mother of the 2nd respondent and L.W. 5 a friend L.W. 2. There is thus clear variance between what is stated in the second complaint dated 18-4-1991 and what is stated by the list witnesses. From this it follows that the allegation of the 2nd respondent that the 2nd petitioner visited Kakinada in January, 1991 along with the 1st petitioner is false to her knowledge. The subsequent improvement in the statements of the list witnesses that a sister of the 1st petitioner accompanied him to Kakinada in January, 1991 cannot implicate any of the petitioners i.e., petitioners 3 to 5 in the said visit to Kakinada both because no mention of the same was made in the second complaint dated 18-4-1991 and also because even the 2nd respondent in her statement did not say which of the sisters accompanied the 1st petitioner which is incomprehensible. It is not the case of the 2nd respondent that the 1st petitioner came all by himself to Kakinada and therefore it is not possible to proceed on the basis that he alone visited Kakinada during January, 1991 for the purpose of holding that the learned Magistrate at Kakinada has territorial jurisdiction to take cognizance of the alleged offence. This has to be considered along with the fact that in the first complaint dated 8-4-1991 there was no whisper about the alleged visit of the 1st petitioner along with the 2nd petitioner/sister to Kakinada during January, 1991 and that no explanation whatsoever is given by the 2nd respondent for not mentioning that in the first complaint. In this context it is significant that in the police report i.e., charge-sheet, no mention is made of the said alleged visit of the 1st petitioner to Kakinada during January, 1991 obviously because the police after investigation did not find any basis for supporting the said allegation. In the circumstances, I am satisfied that the learned Magistrate at Kakinada has no territorial jurisdiction to take cognizance of the alleged offence under Section 498-A of the I.P.C. on the basis of the police report dated 11-7-1991. I also find that taking cognizance of the said offence is barred by time. Offence under section 498-A of the I.P.C. is punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Under sub-section (2) of Section 468of the Cr.P.C. the period of limitation is three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. The police report is dated 11-7-1991. In the F.I.R. the date and hour of occurrence is given as 16-5-1988 at 8-00 A.M. In the second complaint also, the date of offence is given as 16-5-1988 at about 8.00 a.m. If the allegation that the first petitioner and 2nd petitioner/sister of the 1st petitioner visited Kakinada during January, 1991 has no basis and is falsified on the material filed along with the charge-sheet no cognizance can be taken of the alleged offence after 16-5-1991. In this connection, it is also to be noticed that though in paragraph 5 of the second complaint dated 18-4-1991 it is alleged that in spite of the request of the complainant (the 2nd respondent herein), accused did not mend their ways and continued demanding amounts from her even when she was living with her mother at Kakinada, the said allegation is not there in the first complaint dated 8-4-1991. On the other hand, it is alleged in paragraph 6 of the first complaint that “the complainant herself approached the first accused to allow her to live with him for a happy and peaceful marital life, but the first accused bluntly refused that is not possible without taking dowry. Recently the complainant came to know that the first accused again will try to marry with another lady for huge amount of dowry and articles.” This allegation in the first complaint is omitted in the second complaint. It is also to be noticed that in the first complaint it is stated in paragraph 7 that the 2nd respondent gave a police report to the Station House Officer of II town police station, Kakinada on 4-2-1990 on the basis that the complainant came to know that the 1st accused again will try to marry with another lady. In the second complaint in paragraph 6 it is alleged that the 2nd respondent gave a police report to the Station House Officer, II town police station at Kakinada on 4-2-1991, after the visit of the 1st and 2nd accused to Kakinada during January, 1991. Whereas in the first complaint it is stated that the police report was given on 4-2-1990 in the second complaint, it is stated that the police report was given on 4-2-1991. From these circumstances I am satisfied that the 2nd respondent has falsified the facts after not pressing the first complaint and abused the process of the Court by filing a second complaint on the basis of false allegations with a view to give territorial jurisdiction to the learned Magistrate at Kakinada and also to save limitation. There is no allegation whatsoever that the 2nd respondent was subjected to continuing cruelty after she left Bombay on 16-5-1988.

20. Mr. C. Padmanabha Reddy contends that the inherent power under Section 482 of the Cr.P.C. for quashing criminal proceedings at the stage of taking cognizance should be resorted to very sparingly and not in cases where an offence is made out from the material before the Court. He relied on the decision of the Supreme Court in Dhanalakshmi v. R. Prasanna Kumar, , wherein it is held as follows (at page 321 of Cri LJ):-

“Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court.”

But I am satisfied that in the present case the complaint is mala fide and vexatious in view of the manner in which the first complaint dated 8-4-1991 was allowed to be dismissed as not pressed and the presentation of the second complaint a few days thereafter making allegations which I have already found as vague and without any basis and contradictory on a perusal of the material available before the learned Magistrate at the time of taking cognizance of the alleged offence. Even though the petitioners have placed some other material before this Court relating to divorce proceedings initiated by the 1st petitioner before the family Court at Bombay, I have scrupulously kept it out of view because it is impermissible at this stage to look into the material which did not form part of the record of the learned Magistrate. However, the fact of the first complaint dated 8-4-1991 and its contents can be taken into account in my view because that was part of the record before the Court and cannot be controverted or denied by the complainant i.e., the 2nd respondent. In Chand Dhawan v. Jawaharlal, , the Supreme Court held that when called upon to exercise the jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court has to see whether the allegations set out in the complaint or charge-sheet do not in law constitute or spell out any offence and that resort to criminal proceedings within the circumstances amount to an abuse of the process of the Court or not. The Supreme Court pointed out as follows :-

“This Court has in various decisions examined the scope of the power under section 482, Cr.P.C., and has reiterated the principle that the High Court can exercise its inherent jurisdiction of quashing a criminal proceeding only when the allegations made in the complaint do not constitute an offence or that the exercise of the power is necessary either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. No inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case wherein such power should be exercised. When the allegations in the complaint prima facie constitute the offence against any or all of the respondents in the absence of materials on record to show that the continuance of the proceedings would be an abuse of the process of the Court or would defeat the ends of justice, the High Court would not be justified in quashing the complaint.”

In the case, the Supreme Court found that the High Court was persuaded to take the view that the continuance of the proceedings would be an abuse of the process of the Court only on the basis of the additional materials produced by the respondents which had not been admitted or accepted by the complainant and observed that :

“When the materials relied on by the respondent require to be proved, no inference can be drawn on the basis of those materials to conclude that the complaint is false.”

21. In Madhava Rao v. Sambhajirao, , the Supreme Court held as follows (at page 855 of Cri LJ) :-

“The legal position is well settled that when a prosecution at the initial state is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. it is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

22. In the present case, I have found that the 2nd respondent has abused the process of the Court on the basis of the material which is before the learned Magistrate and which cannot be controverted by the 2nd respondent. I am satisfied that the cognizance of the alleged offence by the learned Magistrate is without territorial jurisdiction and what is more is barred by limitation and therefore contrary to law.

23. In the circumstances, the proceedings before the learned IInd Additional Judicial First Class Magistrate, Kakinada in C.C. No. 120 of 1991 are quashed and the Criminal Petition is allowed.

24. Petition allowed.

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