NAVANEETHAM Vs. ELLAPPAN AND ANOTHER

JUDGEMENT

(1.) THIS revision challenging the order of the learned Judicial Magistrate No. II, Poonamallee is against the dismissal of the compliant filed by the revision petitioner under Section 200 Cr.P.C. for an offence punishable under Section 494 I.P.C. read with Section 34 I.P.C. The petitioner being the wife of the first respondent has alleged that the first respondent by marrying the second respondent as his second wife has committed the offence under Section 494 I.P.C. The learned Magistrate has returned the complaint with an endorsement that the F.I.R. in Crime No. 482 of 1994 under Section 494 read with Section 34 I.P.C. on the same subject is pending enquiry with the police, and therefore, second complaint was returned.

(2.) THE order of the learned Magistrate shows that already a complaint has been filed by the petitioner for the offence under Section 494 I.P.C. against the respondents herein, but the learned Magistrate has referred it either under Section 155(2) or under Section 156 Cr.P.C. for investigation by the police. Mr. Sudanthiram, Learned Counsel appearing for the petitioner submits that under Section 198 Cr.P.C. the offence under Section 494 I.P.C. can be taken cognizance of by the Court only on the complaint of the aggrieved person, that the Court cannot take cognizance of the offence, on the report of the police after investigation either under Section 155(2) or 156 Cr.P.C. and therefore, the investigation by the police becomes unnecessary, and the Court was wrong in referring the matter to the police for the offence under Section 494 read with Section 34 I.P.C. He also refers to a decision of this Court in Jaganathan, R. v. State of Tamil Nadu, represented by the Sub -Inspector of Police, Yercaud, (1994 1 L.W. (Crl.) 537) wherein the complaint under Section 500 and 501 I.P.C. given by a party was referred to under Section 156(3) Cr.P.C. to the police for investigation and after filing of the report by the police, the further proceedings was taken by the Magistrate. It is observed in that case that for the offence under Sections 500 and 501 I.P.C. only the party affected should file a complaint, that as the Court has to take cognizance of such offence only on such complaint from the party, the Court cannot take cognizance of the offence on the complaint of the police officer, and therefore, the proceedings on the basis of the report filed by the police will be illegal. In this case, if the report received from the police officer is the basis for proceeding against the respondents for the offence under Section 494 - I.P.C, it will be illegal because the Court is bound to take cognizance of the said offence only on the complaint of the aggrieved party, and not on the report of the police officer. Therefore, as rightly contended by the Learned Counsel appearing for the petitioner, the Magistrate ought not to have referred this matter to the police for investigation either under Section 155(2) or 156, Cr.P.C. for investigation and the Magistrate should have proceeded under Section 200 Cr.P.C. for taking cognizance of the offence alleged by the petitioner. For this reason the return of the complaint on the ground that the complaint given previously is still pending enquiry is not proper.