## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
# **TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933**
## **CRRP.No. 2645 of 2009 ( )**
**------------------------------CRL.M.P. NO.2017/2009 IN SC.318/2007 of SESSIONS COURT,THODUPUZHA**
**..........**
## **REVISION PETITIONER(S)/PETITIONER:**
**------------------------------------------------**
**SLEEBA THOMAS, S/O. THOMAS, MURIMATHOTTATHIL VEEDU,PUTHIKKAKARA AVIKKARANADU SOUTH VILLAGE.**
## **BY ADV. SRI.S.RAJEEV**
## **RESPONDENT(S)/DEFACTO COMPLAINANT & STATE:**
**-------------------------------------------------------------**
## **1. STATE OF KERALA**
**REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM., (CRIME NO.121/2006 OF KARIMANNUR POLICE STATION,IDUKKI DISTRICT)**
**2. SEENAMOL ABRAHAM, KUNNAPILLIL VEEDU,ASANPADIBHAGOM, MULAPPURAMKARA NEYASSERI VILLAGE.**
**R1 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH R2 BY SRI.M.B.SANDEEP**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**svs**
## **CRRP. NO. 2645/2009**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:**
**ANNEXURE 1:COPY OF THE COMPLAINT FILED BY DEFACTO COMPLAINANT BEFORE MAGISTRATE COURT.**
**ANNEXURE 2:COPY OF FINAL REPORT IN CRIME NO.121/2006.**
**ANNEXURE 3:COPY OF APPLICATION UNDER SECTION 227 CR. P.C.FILED BY THE PETITIONER TO DISCHARGE HIM FORM THE ALLEGATION LEVELLED AGAINST.**
**RESPONDENT'S ANNEXURES: NIL**
**/TRUE COPY/**
**P.A. TO JUDGE.**
**svs**
## **P. BHAVADASAN, J.**
- - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.R.P. No. 2645 of 2009
- - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of January, 2012.
## **ORDER**
Order dated 10.7.2009 in Crl.M.P. No.2017 of 2009 in S.C. 318 of 2007 is assailed before this court.
2. The petitioner is the accused in S.C. 318 of 2007. He is the accused in Crime No.121 of 2006 registered by the Karimannur Police Station. On the allegation that the accused had sexual intercourse with the defacto complainant and on various other allegations, a complaint was preferred before the JFCM, Thodupuzha, who sent the complaint for investigation under Section 156 (3) of Cr.P.C.. On receipt of the complaint, Crime No.121 of 2006 was registered. After investigation a final report was laid, which is produced as Annexure II along with this petition. After following the necessary procedures, on being found that the case is exclusively triable by a court of
2
Crl.R.P.2645/2009.
Sessions, committed the case to Sessions Court, Thodupuzha for further proceedings. While the case was pending before the Sessions Court, it is seen that the petitioner had filed an application under section 227 of the Cr.P.C. for discharge. Copy of the said petition is produced as Annexure III. By the impugned order, the prayer was rejected.
3. Learned counsel appearing for the revision petitioner pointed out that the offences for which cognizance has been taken consist of offences punishable under Sections 493, 494, 495, 323, 420, 377 and 376 IPC. According to the learned counsel, offences under Sections 493, 494 and 495 fall within Chapter XX of IPC. Going by Section 198 of the Cr.P.C., cognizance of those offences can be taken only on a complaint by a person made mention of in the Section. Therefore, it is contended that taking cognizance of those offences along with other offences on a police report is bad in law and to that extent the petitioner is entitled to succeed.
Crl.R.P.2645/2009. 3
4. Learned Public Prosecutor on the other hand pointed out that it may be true that there is a bar under Section 198 Cr.P.C. for taking cognizance of the offences under Sections 493, 494 and 495 IPC except in accordance with the provisions contained in the Section. Learned Public Prosecutor also pointed out that even assuming that the complaint was filed before the court, which was forwarded for investigation under Section 156(3) Cr.P.C., and a final report has been laid by the investigating officer, the learned Magistrate is competent to ignore the final report and take cognizance of the offence on the basis of the complaint after following the necessary procedures. Even assuming that the present proceedings as far as under Sections 493, 494 and 495 are concerned is bad, there is nothing which prevents the learned Magistrate from taking cognizance of the above offences on the complaint along with other offences after following the requisite procedures.
5. In support of his contention, learned Public Prosecutor relied on the decision reported in **Madhu v.**
Crl.R.P.2645/2009.
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**Saseendran** (2000(2) K.L.T. 112).
6. Section 198 Cr.P.C. reads as follows:
## **“198. Prosecution for offences against**
**marriage** .- (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that -
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the
Crl.R.P.2645/2009.
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provisions of sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter 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.
(2) For the purpose of sub-section(1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared
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by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complainant is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
Crl.R.P.2645/2009.
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(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”
7. There is no dispute regarding the fact that offences under Sections 493, 494 and 495 fall within Chapter XX of I.P.C. If that is so, cognizance of those offences can be taken only as per Section 198 of Cr.P.C.. Learned Magistrate was not justified in taking cognizance of the offences under Sections 493, 494 and 495 along with other offences, namely Sections 323, 420, 377 and 376 on the basis of the final report laid under Section 158(2) Cr.P.C. However, in view of the decision cited by the learned Public Prosecutor, it is open to the learned Magistrate to ignore the final report and follow the
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procedures under Sections 200 to 204 Cr.P.C. on the basis of a private complaint which was initially filed ignoring the final report. To the extent to which cognizance of the offence under Sections 493, 494 and 495 were taken on the police report, the action of the learned Magistrate and the committal thereof are bad in law.
In the result, this revision is allowed, and the act of the learned Magistrate in taking cognizance of the offences under Sections 493, 494 and 495 along with offences under Sections 323, 420, 377 and 376 on the police report is set aside and consequently committal order is also quashed, leaving open liberty to the learned Magistrate to take cognizance on the basis of the complaint filed ignoring the final report.
## **P. BHAVADASAN, JUDGE**
sb.
