REMYZA Vs. STATE

JUDGEMENT

(1.) THE petitioner herein is the complainant. She filed a complaint against the 2nd respondent under Secs.495, 420 and 409 of the Indian Penal Code.

(2.) THE allegations in the complaint runs as follows: THE petitioner and the 2nd respondent were married on 12.5.1983, at Madras, according to Islamic Law. THE complainant was working in Essenjay Marketing Private Limited, Chennai, as a stenographer, where the accused viz., the 2nd respondent was working as Sales Executive. THE accused Rajasimha has been pressing the complainant to marry him and pressurised her. He also represented that he has divorced his 1st wife. THE 2nd respondent/accused was a Hindu by birth. THErefore, the 2nd respondent represented that he would embrace Islam. Hence, the petitioner had agreed to marry the accused. Accordingly, on 24.6.1982, he became a Muslim, and produced the certificate for the same to the petitioner. But, again on 24.7.1982, he reconverted into Hinduism. Again, he insisted upon the complainant to marry him. THEn, he converted himself into Islam in the presence of the Chief Khazi, and the marriage was celebrated on 12.5.1983. THE complainant was subsequently working in Air India also, which job she resigned. On 7.2.1994, the 2nd respondent converted into Hinduism. He admitted his first marriage with one Padmini and the said marriage is subsisting. He also admitted the second marriage with the complainant. Thus, the 2nd respondent/ accused made false representation that he had already divorced his 1st wife, fraudulently converted into another religion, thereby married the complainant, and again reconverted himself after the said marriage. But for such false representation, the complainant would not have married the accused. Thus, the 2nd respondent/accused is guilty of the offences of the bigamy and cheating. He is also guilty of breach of trust.

(3.) IT is observed by the Apex Court in the decision reported in Abhinandan Jha v. Dinesh Mishra Abhinandan Jha v. Dinesh Mishra, A.I.R. 1968 S.C. 117 thatif the report submitted is to the effect that no case has been made put against the accused, the Magistrate can direct the police to file a charge sheet on his disagreeing with that report. The use of the words may take cognizance of any offence" in Sub-sec.(1) of Sec.190 of Crl.P.C. imports the exercise of "judicial discretion and the Magistrate who receives the report under Sec.173 of Crl.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The court then held, in answering the questioned pose before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec.156(3) of Crl.P.C. IT was further held that if ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance thereof, notwithstanding contrary opinion of the police expressed in the report.