For Offences Relating To Marriage, Magistrate Can Only Take Cognizance On A Complaint By The Aggrieved Person: Kerala High Court

For context under Section 198, Code of Criminal Procedure (CrPC), a Court can take cognizance of an offence under IPC Chapter XX–which pertains to offences relating to marriage–only on the complaint of a person who is aggrieved by such an offence.

A single judge bench of Justice A. Badharudeen found that in the present matter, the Magistrate had forwarded a private complaint lodged by a person (who was competent to lodge it as per Section 198 CrPC) alleging the commission of an offence under Section 494 IPC which is being investigated by the concerned Investigating Officer (police).

It however said, "The mere forwarding of the complaint under Section 156(3) of Cr.P.C. is not legally barred. But while taking cognizance, report of the police as part of the investigation to be reckoned as a complaint and the Magistrate shall go by the procedure...acting on the original complaint filed by the complainant, if the Magistrate intends to take cognizance of the said offence". 

Originally, a private complaint was filed before the concerned Magistrate alleging bigamy (S.494 IPC). The Magistrate forwarded the same for investigation and consequently, the police registered an FIR on the complaint and started investigation.

The petitioner approached the High Court seeking quashing of the FIR registered under Section 494 IPC–Marrying again during the lifetime of husband or wife.  The petitioner contended that as per the mandate of Section 198 Cr.P.C, the complaint can be dealt with by the Magistrate alone and no police investigation can take place.

Meanwhile, the complainant's counsel countered this by arguing that there is no bar on the Magistrate to refer a complaint alleging the commission of an offence under Section 494 IPC. It was argued that the bar is only in relation to taking cognizance, based on the police's report. 

On the scope of S.198 CrPC high court said, "Considering the scope of Section 198 of Cr.P.C., the same is an exception to the general rule that any person, having knowledge of the commission of an offence, may set the law in motion. Chapter XX of the Indian Penal Code relates to offences against marriage and in such offences Court cannot take cognizance except upon a complaint made by same person aggrieved by the offence. The complaint must be made by the person aggrieved. The person aggrieved is the person affected or injured. 'Complaint' means, a complaint as defined in S.2(d) of the Act. It should be of the specific offence falling under Chapter XX of the Penal Code and not of any offence. The word 'complaint' does not include a police report". 

Justice Badharudeen further observed that where there is no complaint filed pertaining to Section 494 IPC offence, then as per Section 198Cr.P.C, cognizance of the offence by the Magistrate on the basis of a police report would be "without jurisdiction".

The court further observed that in another circumstance, where the police file a report which has both cognizable and non-cognizable offences mentioned in Chapter XX of IPC, the Magistrate is "legally empowered" to take cognizance of both the offences based on the report.

The court said that if at all the Magistrate directs a police investigation by forwarding the complaint under Section 156(3) Cr.P.C., the police officer's report is "deemed to be a complaint" covered under explanation to Section 2(d) Cr.P.C.

The court said that in such a case the Magistrate could not have taken cognizance, and should pursue the procedure laid down in Section 200 read with Section 198 of Cr.P.C, wherein cognizance can be taken only on the complaint, albeit the "final report sent by the police officer". 

Disposing of the matter, the high court directed the concerned Magistrate to consider the legal position while taking cognizance and proceed further, if necessary.

Counsel for the Petitioner: Advocates P. M. Bindhumol, G. Bindu

Counsel for the Respondent: Public Prosecutor Adv. M. P. Prasanth, Advocates Blaze K. Jose, Nikhil Sanjay, Treesa Rose, Airine Joby

Case No: Crl.M.C. No: 4549/ 2024

Case Title: Amal Babu v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 543