K. Vijaya Laxmi vs K. Laxminarayan and Ors.

K. Vijaya Laxmi vs K. Laxminarayan and Ors.

FACTS OF THE CASE:

The accused No. 1 was accused of violating Section 494 of the IPC when he remarried accused No. 2, according to the petitioner, Smt. K. Vijaya Laxmi, the wife of the respondent No. 1 and accused No. 1. She filed a complaint against him under Section 200 of the Cr.P.C alleging that he remarried accused No. 2, while his marriage with the petitioner was subsisting and thus committed an offence punishable under Section 494, I.P.C. The learned Magistrate is said to have referred this complaint to the police for investigation purportedly under Section 156(3), Cr. P.C. On the basis of this forwarded complaint, the police registered an FIR and after investigation filed a charge-sheet, which was taken on file for offence under Section 494, I.P.C. against the accused 1 and 2. It is stated that ever since filing of the charge-sheet, the petitioner’s (de facto complainant’s) submissions were sidelined and that all the Assistant Public Prosecutors who so far appeared in the case treating it as a State case, misguided her and led the evidence in an insufficient and improper way. It is under these circumstances, the petitioner who is the de facto complainant approached her Advocate and got filed the Memo for permitting her Advocate to conduct the case on her behalf. This request was opposed and the A.P.P.O. filed a counter denying the allegations against the Prosecuting Officers.

The learned Magistrate passed the impugned order holding that the Court took cognizance of the offence based on the charge-sheet filed by the Station House Officer, P.S. Saidabad and not based on the complaint made by the de facto complainant Smt. Vijaya Laxmi. It is further held that it is the State, which is the complainant in the case and in view of the provisions of Section 25 of Cr.P.C. It is only the Prosecuting Officers appointed by the Government who are competent to represent the State and conduct the prosecution. Thus, the request of the de facto complainant was rejected. The learned Metropolitan Sessions Judge, before whom this order was challenged in Cr.R.P. No. 148/1999 upheld this order. It was urged before the Sessions Judge that the complaint filed by the de facto complainant must be deemed to have been taken cognizance based on the complaint made by her and not based on the police report and in that view of the matter, the de facto complainant must have the liberty to have the case conducted through her Advocate. The sessions judge thus rejected the revision petition filed by the petitioner.

PETITIONER’S CONTENTIONS:

Considering this clause, I.e., U/S 494, IPC it cannot be assumed that the learned Magistrate referred the complaint under Section 156(3) of the Criminal Procedure Code; rather, it must be assumed that he referred the complaint to the police for an investigation under Section 202 of the Criminal Procedure Code to determine whether there was sufficient justification for proceeding or not. The charge-sheet filed by the police in this case may only be viewed as a report of factual findings, and it must be presumed that the learned Magistrate used this report of factual findings when deciding whether to issue a process against the accused under Section 202 of the Criminal Procedure Code. Thus, according to the argument, the Magistrate should be considered to have taken cognizance of the complaint based on the complaint made by the wife (the de facto complainant) and not the charge-sheet submitted by the police. The learned Counsel for Respondents 1 and 2 is attempting to refute this assertion by citing the Magistrate’s specific decision, which is recorded in the contested order, that he referred the case to the police for investigation under Section 156(3), Cr.P.C. As a result, there is no justification for assuming that it must be assumed that it was referred to the police under Section 202, Cr.P.C.

(RESPONDENTS CONTENTIONS NOT RECORDED DUE TO THE NATURE OF THE PETITION)

OBSERVATIONS MADE:

The Hon’ble justice V. Rao has observed the grounds for non-admissibility of the petitioner’s contention because though the actual order passed by the learned Magistrate is not a part of the file in this case but both the Courts below have proceeded on the assumption that the Magistrate has specifically referred the complaint for investigation under Section 156(3), Cr.P.C. once the Magistrate on receiving a complaint has forwarded the complaint to the police for investigation under Section 156(3), Cr.P.C. before taking any step as contemplated under Section 200 of Cr.P.C. the question of investigation, under Section 202, Cr.P.C. does not arise. Even assuming that the mention of a provision of law by the Magistrate is not significant or that such a mention is done mistakenly, the facts in the case before me do not admit of any doubt that the learned Magistrate in this case referred to the complaint to police only under Section 156(3), Cr.P.C. It would be pertinent to have a look at the provisions under Section 202, Cr.P.C. and the said section is extracted as under “Postponement of issue of process”.

JUDGEMENT:

The bench observed that rolling back the proceedings would amount to causing great hardship to the accused, who would be required to go through the ordeal of almost a fresh trial after almost eleven years and hence the petition was dismissed with no costs imposed. 

written by Kaushal intern under legal vidhiya.

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