B.Parvathi Vs State of AP on 7 May, 2020

Posted on September 6, 2022 by ShadesOfKnife

A reasoned judgment on maintainability of IPC 494 upon the Accused No.2 and the merits of discharge petition filed before Trial Court u/s 227 CrPC. It relies on AP State Amendment of 1992.

In Page 35,

Earlier the offence punishable under Section 494 IPC is a non-cognizable offence. The Legislative Assembly of the State of Andhra Pradesh by way of Andhra Pradesh Second Amendment Act 3 of 1992, amended the first schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 and made the offence under Section 494 IPC a ‘cognizable’ offence and a ‘non-bailable’ offence. The said Andhra Pradesh Second Amendment Act 3 of 1992 was reserved by the Governor of Andhra Pradesh on the 21.10.1991 for consideration and assent of the President. The Presidential assent was received on 10.02.1992 and the amendment was published on 15.02.1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Therefore, with effect from 15.02.1992 undoubtedly the offences punishable under Sections 494 and 495 IPC are cognizable offences in the State of Andhra Pradesh. So, the police officer can now register the case under Section 154 Cr.P.C. and can investigate the same under Section 156 Cr.P.C. The bar engrafted under Section 198(1) Cr.P.C. to take cognizance of the case under Section 494 IPC is on the Court and not on the police. So, in view of the fact that it is a cognizable offence, police can register the case on a report lodged with them to that effect and also investigate the case and file final report under Section 173(2) Cr.P.C. Now, the crucial question that arises for consideration is, whether Court can take cognizance of the case on such police report/ charge-sheet filed by the police or not in view of the express bar engrafted under Section 198(1) Cr.P.C. on the Court to take cognizance of the case except upon a complaint filed by the aggrieved party before it.

B.Parvathi Vs State of AP on 7 May, 2020

A.Subash Babu Vs State of A.P. and Anr on 21 Jul 2011

Posted on December 14, 2019 by ShadesOfKnife

Landmark Judgment to screw the perpetrators of 494 and 495 IPC Bigamy offences. This is specifically helpful to those who have cases in the State of Andhra Pradesh where these two crimes are made Cognizable and Non-bailable, due to a State amendment in 1992 whereas these are Non-cognizable and Bailable in the rest of the States in India.

13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub-Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst other things provides that subject to Clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 in the Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the Seventh Schedule mentions “Criminal Procedure, including in matters included in the Code of “Criminal procedure, at the commencement of this Constitution”. Thus there is no manner of doubt that Parliament and subject to Clause (1), the legislature of any State also has power to make laws with respect to Code of Criminal Procedure. Section 2(c) of the Code of Criminal Procedure, 1973 defines the phrase “Cognizable Offence” to mean an offence for which and “Cognizable Case” means a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. Part I of the First Schedule to the Code of Criminal Procedure, 1973 relating to offences under the Indian Penal Code inter alia mentions that Section 494 and 495 are non-cognizable. Section 154 of the Criminal Procedure Code relates to information in cognizable cases and provides inter alia that every information relating to the commission of a cognizable offence, if given orally to an Officer in charge of a Police Station, shall be reduced to writing by him and be read over to the informant. Section 156 of the Code provides that any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over a local area within the limits of such station would have power to enquire into or try under provisions of Chapter XIII of Criminal Procedure Code. As Sections 494 and 495 are made non-cognizable, a Police Officer would not have power to investigate those cases without the order of a Magistrate, having a power to try such cases or commit such cases for trial as provided under Section 155(2) of the Code.
However, this Court finds that the Legislative Assembly of the State of Andhra Pradesh enacted the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. By the said Amending Act, the First Schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to be amended and against the entries relating to Section 494 in column 4 for the word “Ditto”, the word “Cognizable” and in column 5 for the word “Bailable” the word “Non-bailable” were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word “Ditto” the word “Cognizable” and in column 5 for the word “Ditto”, the word “Non-bailable” were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned.

And… in Para 14

* * * * * *

In view of the above settled legal position, this Court has no doubt that the amendment made in the First Schedule to the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, shall prevail in the State of Andhra Pradesh, notwithstanding the fact that in the Criminal Procedure Code, 1973 offences under Section 494 and 495 are treated as cognizable offences. The reasoning given by the Division Bench of High Court of Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that though the State Legislation amended the Schedule making the offence under Section 494 IPC cognizable, the legislation made by the Parliament i.e. Section 198 of the Criminal Procedure Code remains and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail, because, Section 198 of the Criminal Procedure Code still holds the field despite the fact that the State Legislation made amendment to the Schedule of Criminal Procedure Code, with respect, is erroneous and contrary to all cannons of interpretation of statute. Once First Schedule to the Code of Criminal Procedure, 1973 stands amended and offences punishable under Sections 494 and 495 IPC are made cognizable offences, those offences will have to be regarded as cognizable offences for all purposes of the Code of Criminal Procedure, 1973 including for the purpose of Section 198 of the Criminal Procedure Code. Section 198(1)(c), after the Amendment made by the Code of Criminal Procedure(Andhra Pradesh Second Amendment) Act, 1992 cannot be interpreted in isolation without referring to the fact that offences under Sections 494 and 495 IPC have been made cognizable so far as the State of Andhra Pradesh is concerned. Therefore, the provision made in Section 198(1)(c) that no Court shall take cognizance of an offences punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved will have to be read subject to the amendment made by the Legislative Assembly of the State of Andhra Pradesh in 1992. Once, it is held that the offences under Section 494 and 495 IPC are cognizable offences, the bar imposed by operative part of sub-section 1 of Section 198 of the Criminal Procedure Code beginning with the words “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence” gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned. As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and non-bailable by virtue of the Criminal Procedure Code (Amendment Act, 1992) can be investigated by the Police and no illegality is attached to the investigation of these offences by the police. If the Police Officer in charge of a Police Station is entitled to investigate offences punishable under Section 494 and 495 IPC, there is no manner of doubt that the competent Court would have all jurisdiction to take cognizance of the offences after receipt of report as contemplated under Section 173(2) of the Code. Thus, this Court finds that correct proposition of law was not laid down in Mavuri Rani Veera Bhadranna (supra) when the Division Bench of the Andhra Pradesh High Court in the said case held that as Section 198 of Criminal Procedure Code still holds the field despite the amendment made by State Legislature, the Court would have no jurisdiction to take cognizance of an offence punishable under Section 494 IPC on the basis of report submitted by the Investigating Officer. Even if it is assumed for the sake of argument that in view of Section 198(1)(c) of the Code of Criminal Procedure, the Magistrate is disentitled to take cognizance of the offences punishable under Sections 494 and 495 IPC despite the State amendment making those offences cognizable, this Court notices that in Mavuri Rani Veera Bhadranna (supra), the Division Bench has considered effect of Section 155(4) of the Criminal Procedure Code and thereafter held that the bar under Section 198 would not be applicable as complaint lodged before police for offence under Section 494 IPC also related to other cognizable offences and if police files a charge sheet, the Court can take cognizance also of offence under Section 494 along with other cognizable offences by virtue of Section 155 (4) of the Criminal Procedure Code.

And then in Para 15,

15. Section 155(4) of the Code inter alia provides that:-
“Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable”
Here in this case in the charge sheet it is mentioned that the appellant has also committed offence punishable under Section 420 of the Indian Penal Code which is cognizable and therefore this is a case which relates to two or more offences of which at least one is cognizable and therefore the case must be deemed to be cognizable case notwithstanding that the other offences are non- cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC. The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to what should be the procedure to be followed by a complainant when a case involves not only non-cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also along with non-cognizable offences it should not be treated as a non-cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected.

A.Subash Babu Vs State of A.P. and Anr on 21 July, 2011

Citations: [2011 SCALE 7 671], [2011 RCR CRIMINAL SC 3 674], [2011 RCR CIVIL SC 3 840], [2011 SCC 7 616], [2011 SLT 5 727], [2011 AIOL 509], [2011 ALLMR CRI SC 2931], [2011 ANJ SC 2 202], [2012 BOMCR CRI SC 1 379], [2011 JCC SC 3 2189], [2011 AIR SC 3031], [2011 SCC CRI 3 267], [2011 SCC CIV 3 851], [2011 AIR SC 4702], [2011 ULJ 3 139], [2011 AIC 107 51], [2011 SHIMLC 3 551], [2011 DMC SC 3 50], [2011 ALT CRI 3 242], [2012 BLJ 1 260], [2011 ACR SC 3 3182], [2011 DMC 2 827], [2011 KCCR SN 4 472], [2011 UC 2 1509], [2012 ALD CRI 1 210], [2011 SCR 9 453], [2011 JT SC 8 483], [2011 CRI LJ 4373], [2011 AIR SCW 4702]

Indiankanoon.org link:

https://indiankanoon.org/doc/1342950/

https://www.casemine.com/judgement/in/5609aeefe4b0149711415347

Here is the Andhra Pradesh HC judgement here from 2010.

AP High Court had passed similar judgment here in 2014.

For a similar adjudication from State of Odisha, go here.

Index of 494 and 495 IPC judgments is here.

Lifecycle Stages of a Section 498A IPC Case

Posted on April 14, 2018 by ShadesOfKnife

Listed below are a reasonably laid out sequence of events in a Criminal Case filed under Section 498A of Indian Penal Code (IPC). The section is available here.

Other Life Cycles: DV Case Lifecycle || Maintenance Case u/s 125 CrPC Lifecycle. Index is here.

Initial signs of facing a false criminal case u/s 498A IPC

These days awareness of women about gender-biased laws in India has enormously increased partly due to movies and men do not need any special sign to know that they (and others in his family) are going to face false matrimonial litigation. The women are telling in your face that they will hoist a false litigation and *send you to jail* (this being the sole goal). So listen/observe carefully for such utterances and record them. This is evidence. Safe guard it. Being idiotic (read still believing that the woman will come back to his home and lead a happy marital life is a oasis) is your choice. Hope you do not regret that decision later when one or some in your family die due to false litigation (and the stigma/defamation it causes to your family)

Filing of false complaint and registration of FIR

Another must-happen is that the women hoist the false complaints only at their parental home to leverage the local feelings. (caste, regional connections will be invoked). There is a bad judgment also now to support them in this. Go find it here.

Officer in charge of the Station (Station House Officer-SHO) assigns an officer of cadre Inspector to register FIR and investigate the allegations in the complaint. This person is called as Investigation Officer (I/O).

Anticipatory Bail u/s 438 Cr.P.C.

If there are any other serious cognizable offences in the FIR (Check First Schedule in Cr.P.C. book which lists some I.P.C. offences along with details such as if a case is a cognizable and/or bailable) which may attract 7 years or more punishment. Then immediately go for Anticipatory Bail u/s 438 Cr.P.C. at Sessions Court first and on failure there go to High Court. Landmark Arnesh Kumar judgment is here. The thing to note here is that once a AB is granted in a case (FIR), the protection continues until the end of trial. Landmark case law of Sushila Aggarwal is here. Another note is, no need to convert AB into Regular Bail. Do not entertain any nonsense here.

Notice u/s 41A of CrPC

Misuse of arresting Power of Police was held to be illegal and hence Apex Court directed all DGPs of all States that they issue directions to the entire Police in their states, not to automatically arrest accused person after registering FIR but to issue a Notice to all accused to join the inquiry u/s 41A of Cr.P.C. The Arnesh Kumar judgment is here.

The Result:

Arrests (only with respect to Dowry Prohibition Act offences as an example here; No 1 cause used to support most of all false matrimonial cases) reduced considerably. Didn’t stop though. Most of the I.O.s of these arrests have committed Contempt of Court by arresting the accused (Immediately approach State High Court with a Contempt Petition). A simple RTI application to National Crime Record Bureau asking “in how many arrests under this Act, a notice u/s 41A Cr.P.C. was issued” would open up the blatant disregard for the decision of Supreme Court.

Gender-wise split of arrests… See, how many mothers and sisters were arrested in false matrimonial litigation in India, only under Dowry Prohibition Act.

Obtaining Station Bail

If Police arrested you or your family members, before you obtain Anticipatory Bail, one can give sureties to Police and obtain Station Bail. No need to give any ‘fees’ to Police.

Obtaining Default Bail

Per Section 167 Cr.P.C., if I/O is unable to complete investigation within 24 hours of apprehending you or your family, he is supposed to present you before Jurisdictional Magistrate and seek Police custody. Magistrate may remand you to Police Custody for maximum 15 days.

Obtaining Regular Bail u/s 437 CrPC

If Police do not allow you Station Bail and put you in Police custody, you or your family members, can go before Jurisdiction Court and file petition u/s 437 CrPC for obtaining Regular Bail, by giving sureties to Court. No need to give any ‘fees’ to Court. Court will grant Regular Bail while imposing certain conditions.

Quashing the FIR at High Court u/s 482 CrPC

Learn what is a Quash (not squash; it is a sport) Petition and how to make good use of it at High Court here. Then read how a baseless, maliciously motivated FIR may be quashed here.

Filing of Charge sheet by I/O

I/O does investigation to gather material and witnesses supporting the allegation and based on this outcome, files a Closure report (with reasons) or a Charge sheet (u/s 173 Cr.P.C.) into the jurisdictional Court.

Minimum documents that I/O should submit to Court along with Charge sheet (this set of documents are also called as Challan)

Complaint
FIR (Signature of the complaint to be taken)
Statements of Prosecution Witnesses recorded u/s 161 Cr.P.C. (No signature of witness to be taken on these statements
Typed Charge sheet
Rough Sketch of the alleged crime scene/location
Entries from Police Station Case Dairy
Any documentary evidences obtained
Notice issued to the complainant (so that complainant can protect any removal of accused/section from charge sheet)
Delete memo (if any filed by I/O into Court)
Arrest memo, Bail bonds, ID proofs of accused

Protest Petition

Once charge sheet is filed into the trial Court, the Court issues a notice to the de facto complainant indicating that their initial report have reached the Court in the form of a final report (which can be either a closure report indicating the police could establish the allegation in the report or a charge sheet indicating that the police could establish the allegation in the report by way of evidence and witness).

The de facto complainant can choose to object to the final report filed into the Court either or removal/diluting of sections or removal of accused from the FIR. There is no section of law from this in the Cr.P.C.

Initial Appearance in Court

It will take some time before the filing section of the Court gives a C.C. (calendar case) number to your case and issues summons to you and other accused to appear before Court and participate in Court proceedings.

On being present, Court provides (I/O provides actually) the following to each accused person, one copy as prescribed u/s 207 Cr.P.C.

Complaint
FIR (Signature of the complaint to be taken)
Statements of Prosecution Witnesses recorded u/s 161 Cr.P.C. (No signature of witness to be taken on these statements
Typed Charge sheet
Rough Sketch of the alleged crime scene/location

You can obtain certified copy of any other documents by filing a copy application in copy section of the Court.

Discharge from case u/s 239 CrPC

Discharge petition helps accused person to come out of false litigation (Best case – All accused may be discharged from all offences in Charge sheet; worst case – Husband may have to face 498A IPC but other sections and accused may be discharged). Read when to invoke a Discharge Petition at the trial court itself here. There are a few good judgments pertaining to Discharge here. Read this judgement here to success in your discharge.

If your Discharge petition is dismissed baselessly (reason given by Magistrate is, every ground you raised is a matter of trail), your remedy is to file Revision at Sessions Court within limitation petition.

Framing of Charges

After conducting a hearing (hearing before charge – HBC stage) to complainant and accused, Magistrate will read out the charges from the charge sheet, in the language understood by accused and ask if he/she pleads guilty. If accused prays guilty, Magistrate will record such confession and move to next stage. If charges are denied then Magistrate will proceed to frame charges on the accused persons and issue a charge framing order.

Even though this is an interlocutory order, it is nevertheless a judicial order, so this can also be challenged at High Court u/s 482 Cr.P.C.

Begin of Criminal Trial

This is a criminal trial so all remedies available under Cr.P.C. can be gainfully invoked to benefit accused persons. The following are some.

Section 201 Cr.P.C. can be invoked if complainant tries to erase statutory (Marriage certificate, divorce decree, land/property documents) financial, medical, mobile, electronic (email, sms, whatsapp, video, audio) evidence which would destroy her case.

Section 202 Cr.P.C. can be invoked if truth is concealed and lies are recorded in complaint to police.

Section 205 Cr.P.C. can be invoked to dispense with personal attendance of accused. Standard forms may be available at/near courts. Fill, attach Rs.2/5 Court Stamp and file at Bench or Filing section. Prosecution will object. During hearing, plead the grounds (distance/out-station, health, advanced age etc)

Section 317 Cr.P.C. can be invoked on a per-appearance basis, if 205 petition above is not allowed.

If you are a Party-in-person, then invoke Rule 37 of the Criminal Rules of Practice and Circular Orders 1990 for High Court of A.P. here. Due to this, one accused can represent (not plead/argue) other accused persons. Using this, ensure your parents and relatives do not suffer due to travels involved.

Section 256 Cr.P.C. can be invoked if the complainant herself is not appearing nor the Assistant PP, you can pray to Court to acquit the accused. If the complainant is represented by advocate, then to mark that stage as null and proceed further. If Magistrate doesn’t oblige, file a Memo praying same, so your prayer goes on record of Court in the case. Same, if complainant dies too.

Section 91 Cr.P.C. can be invoked to summon any document held by any authority, public or private.

Try this only after exhausting Formal communication channels with the document-holding entity and via RTI Act. Else, Court will dismiss your application. Few more remedies are here.

Quash the case u/s 482 CrPC

At any point in time during trail of this case, if there appears any grounds basis which the Court shall not proceed against accused persons, they can approach High Court u/s 482 Cr.P.C. to quash the proceedings.

Examination of Complainant and Prosecution witnesses

Examination stage has two phases: Chief Examination and Cross Examination.

While examination, evidences to support either side may be submitted to Court and get them marked/numbered.

Evidence of Complainant and witnesses

Chief Examination: Complainant gives their deposition to Court. This can be filed via an affidavit. Similarly, witnesses will also finish their Examination-in-chief.

Cross-examination of Complainant and witnesses

Cross Examination: Complainant (and her witnesses) is put questions by Defence Advocate to test the veracity of truth in her allegations. Use Section 159 (Refreshing memory) of Indian Evidence Act cleverly.

Examination of Accused and Defence witnesses u/s 313 CrPC

The landmark judgment (from 2000) which held that physical presence of accused persons is NOT required for examination, if they do not have anything to say is here. Recent Karnataka HC judgment here.

Evidence of Accused

Rarely, does the need arises for accused to produce any evidence.

Cross-examination of Accused and Defence witnesses

If presented, Accused/defence witnesses/evidences have to go through Cross examination phase.

Court’s Power to Examine Accused

The Court has power to examine the Accused u/s 313 Cr.P.C.

Arguments

Advocates take turns and introduce their arguments, based on the Examination stage and Evidences brought on record of the Court. Once Oral arguments are finished, written arguments may also be submitted to Court. This is covered u/s 314 Cr.P.C.

Judgment (Acquittal/Conviction)

After conclusion of arguments, Court reserves the judgment, as Magistrate has to write the judgment. Once ready with Judgment, Magistrate pronounces the Judgment in the Open Court in the presence of parties involved in the case.

Revision/Appeal

sfdsd

Settlement/Compromise

In Andhra Pradesh, 498A IPC is made compoundable through an amendment to Cr.P.C. (a Central Act, 2 of 1974) in 2003 under Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 2003 wherein both sections 494 IPC and 498A IPC were added to the list of Compoundable offences u/s 320 Cr.P.C. The sections 494, 495, 496 and 497 IPC were earlier also made Cognizable and non-bailable in Andhra Pradesh by another State Amendment.

So, this made it possible to compromise/settle 498A IPC cases (may be coupled with other offences such as 307, 406, 420, 506 IPC or Sec 3, 4, 6 of DP Act etc.) before Lok Adalat which is empowered to take up Compoundable cases as per sec 19(5) of Legal Services Authority Act 1987. So the parties can make an application to DLSA, MLSA, TLSA, as the case may be, and get their case compromised.

Shades of Knife

True Colors of a Vile Wife

Tag: IPC 494 Compoundable Offence in Andhra Pradesh

B.Parvathi Vs State of AP on 7 May, 2020

A.Subash Babu Vs State of A.P. and Anr on 21 Jul 2011

Lifecycle Stages of a Section 498A IPC Case