State vs Chandrakantha Mogera and Others

The State has preferred this appeal being aggrieved by the judgment and order of acquittal dated 30th September, 1995 passed by the Additional Munsiff and JMPC, Kundapur, for the offences punishable under Sections 498-A, 494 and 109 of the IPC.

The brief facts of the case is -

On 20-4-1986 at Kaikini Village in Batkal Taluk the first respondent married P.W. 1 Sanku and after 8 days of the said marriage, the respondents began to harass P.W. 1 for getting more ornaments from her parents'' house and also pushed her out of her house. The complainant has further stated that on 21-5-1989 at Yedthare of Byndoor Village, Kundapur Taluk accused 1 got married with another lady viz., respondent 5-Sarojini at the instance of the respondents. As such P.W. 1 lodged the complaint for the said offence.

The learned Magistrate referred this case u/s 156(3) of the Cr. P.C. for investigation to CPI, Kundapur. He filed the charge-sheet after the investigation. As such the trial took place. In the said trial, P.Ws. 1 to 8 are examined and Exhs. P. 1 to P. 6a are marked for the prosecution and Exhs. D. 1 to D. 3 are marked for the defence. After the appreciation of the evidence, the learned Magistrate has acquitted the respondents.

Mr. Srinivasa Reddy, learned HCGP strenuously submitted that the improper appreciation of the evidence on record has resulted in the miscarriage of justice. On the other hand Mr. S.G. Bhagwan, learned Counsel for the respondents at the very outset took up objection regarding taking of the cognizance by the Magistrate. He also relied upon the decision in the case of State of Karnataka Vs. Byraiah, . According to him, it is patently illegal to direct the Police to investigate the case as he cannot do so as far as the offence falling under Chapter XX of the IPC. In view of these submissions, now it is to be seen whether there are any grounds to interfere with the judgment of the lower Court.

The learned Magistrate himself has observed that his predecessor has committed an error of jurisdiction. Even then left with no option, he has proceeded with the trial of the case and properly appreciated the evidence of P.Ws. 1 and 2. P.W. 1 is none other than the complainant and P.W. 2 is the father of the complainant. P.Ws. 3 and 5 are panchayatdars. As far as appreciation of evidence for the offence u/s 498-A of the IPC, it does not call for any interference.

Mr. Bhagwan submitted that in view of the decision in the case of Byraiah, supra, the Magistrate ought not to have split the case into two parts taking cognizance by himself and asking the police to investigate the case. It is a peculiar case. The offences alleged against the respondents are under Sections 498-A and 494 of the IPC. As far as Section 494 of the IPC is concerned, the Magistrate himself has to take the cognizance and go on with the case. He cannot refer the case for investigation to the Police. The decision cited supra is explicitly clear as far as this position of law is concerned. When it is so, the reference by the Magistrate to the Police for investigation amounts to splitting of the complaint into two parts. In my opinion, it is not correct. The Magistrate ought to have taken cognizance of both the offences and tried the case in accordance with law. Failure to do so leads to the miscarriage of justice. In view of this, I am constrained to pass the following:

ORDER

In the result, the appeal stands dismissed.