Usha John vs State of Kerala and Another

R. Basant, J.—The petitioners are spouses. There is acrimony in their marriage. Both of them have come before this Court to invoke the powers of this Court to quash the action taken by the learned Magistrate on a final report submitted by the police after due investigation.

The parties to these petitions (for the sake of convenience, they are referred to as husband and wife) started living together allegedly on the basis of an agreement dated 8.2.1993. On 19.10.1997, a child was born in the relationship. The husband had a wife by an earlier marriage. She filed a petition for divorce. The Family Court granted divorce. The said divorce was confirmed by this Court as per confirmation order dated 4.8.1995. It is the case of the petitioner that on 28.11.1996, after the said divorce, the parties entered into valid matrimony afresh as per Annexure-1 marriage certificate. The marriage was allegedly performed in a local Church. Harmony did not last long. On 7.12.1999 the wife made a complaint before the police alleging commission of the offence punishable u/s 498A of the IPC by the husband. Final report was filed by the police after due investigation on 9.1.2001. The learned Magistrate, on receipt of the final report, perused the same and proceeded to pass orders. The learned Magistrate felt that cognizance of the offence u/s 498A of the IPC cannot be taken inasmuch as the relationship was founded originally on an agreement to marry and not a legally valid marriage. However, the learned Magistrate did not refuse to act on the final report. The learned Magistrate took cognizance of the offences punishable under Sections 352 and 323 of the IPC. Admittedly, the wife was not heard before the final report submitted confirming the guilt of the husband for the offence punishable u/s 498A of the IPC was not accepted in full and cognizance was taken only for different/lesser offences under Sections 352 and 323 of the IPC. Both the husband and wife are now before this Court, complaining about the course adopted by the learned Magistrate.

When this matter ultimately came up for hearing today, there is no representation on behalf of the husband i.e., the petitioner in Crl. M.C. No. 3129/2001. The learned Counsel for the petitioner-wife in Crl. M.C. No. 4208/2001 has advanced detailed arguments.

On the principles of law applicable, I do not find any serious dispute. When an informant lodges an FIR alleging commission of an offence and the learned Magistrate, on receipt of the final report, does not choose to proceed against all the accused shown in the First Information Statement or chooses, not to take cognizance of all the offences alleged in the First Information Statement, certainly the informant has a right to be heard. In the instant case the petitioner in Crl. M.C. No. 4208/2001--wife had made allegations u/s 498A of the IPC. Her request to take cognizance of the offence punishable u/s 498A of the IPC could not have been turned down by the Magistrate for the sole reason that the final report though it reveals the conclusion that an offence u/s 498A of the IPC does not reveal valid matrimony. At any rate, the petitioner-wife in Crl. M.C. No. 4208/2001 was entitled to be heard before cognizance was refused to be taken u/s 498A of the IPC. On this aspect, we have two decisions of the Supreme Court and the position is well covered. In Bhagwant Singh Vs. Commissioner of Police and Another, , as also in Gangadhar Janardan Mhatre Vs. State of Maharashtra and Others, . The position is well settled that an informant is entitled to be given notice when cognizance is refused to be taken on her information placed before the police. It is unnecessary to refer to the precedents or statutory provisions in any greater detail. That position appears to be well settled.

Of course, both these decisions did not refer specifically to the question whether such notice need mandatorily be given when the learned Magistrate took cognizance of different or lesser offences that what were alleged by the informant in the First Information Statement lodged by her. If the learned Magistrate chooses to refuse to take cognizance against the persons who are arrayed as offenders or the learned Magistrate chooses not to take cognizance of the offence alleged in the FIR, though he was prepared to take cognizance for different offence, following the principles in the two decisions referred above, the informant is undoubtedly entitled to notice. Such notice having not been given to the petitioner, the action taken by the learned Magistrate on the final report submitted by the police certainly deserves to be set aside. The learned Magistrate must be directed to consider the final report afresh after giving notice to the informant i.e., the petitioner in Crl. M.C. No. 4208/2001 (the wife) who happens to be the victim also in this case.

The learned Counsel for the petitioner then contends that the learned Magistrate had not taken note of Annexure-I marriage certificate. Of course, even the Investigating Officer had not seized the same or seen the same. But the Counsel contends that notwithstanding the omission/failure of the informant/Investigating Officer to place Annexure-I before the learned Magistrate, the learned Magistrate must have followed the principle which is now laid down in the later decision of the Supreme Court in Reema Aggarwal v. Anupam I (2004) CCR 163 (SC) : 2004 (2) KLT 822. Of course, the perception of the learned Magistrate of the law, as it then stood, cannot be faulted. But that apart, I am of opinion that the learned Magistrate must now be directed to consider the final report submitted by the police afresh after hearing the petitioner in Crl. M.C. No. 4208/2001 and after considering the dictum in Reema Aggarwal v. Anupam (supra). The petitioner shall, of course, be at liberty to bring Annexure-I also to the notice of the learned Magistrate.

I am, in these circumstances, satisfied that both these Crl. M.Cs. deserve to be allowed and the action taken by the learned Magistrate deserves to be set aside. The learned Magistrate must be directed to consider the final report afresh after giving the petitioner in Crl. M.C. No. 4208/2001 an opportunity to be heard. To avoid any further delay, the petitioner in Crl. M.C. No. 4208/2001 can be permitted to appear before the learned Magistrate on a specified day for such hearing.

In the result:

(a) These Crl. M.Cs. are allowed.

(b) The action taken by the learned Magistrate on the final report dated 9.1.2001 submitted by the police is set aside.

(c) The learned Magistrate is directed to consider the matter afresh after hearing the petitioner in Crl. M.C. No. 4208/2001.

(d) The petitioner in Crl. M.C. No. 4208/01 shall reckon this as a notice to appear before the learned Magistrate and shall appear before the learned Magistrate at 11 a.m. on 22.8.2005.

I make it clear that the cognizance taken under Sections 352 and 323 of the IPC is being set aside not because I am satisfied that cognizance cannot be taken under those sections but because the learned Magistrate has not followed the procedure prescribed by law and it is felt that the learned Magistrate must be directed to consider feasibility of taking cognizance u/s 498A of the IPC afresh in accordance with law.