Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
SHARAT CHANDRA SAHU & ANR.
DATE OF JUDGMENT: 08/10/1996
BENCH:
KULDIP SINGH, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
S.Saghir Ahmad, J.
Respondent No.1 is the husband of respondent No.2 who
made a complaint in writing to the Women’s Commission
setting out therein that respondent No.1 had contracted a
second marriage and had thus committed an offence punishable
under Section 494 I.P.C.. It was also alleged that eversince
the marriage with her, he had been making demands for money
being paid to him which amounted to her harassment and
constituted the offence punishable under Section 498A I.P.C.
for which respondent No.1 was liable to be punished.
2. The Women’s Commission sent the complaint to police
station where G.R.Case No.418 of 1993 was registered against
respondent No.1. The police investigated the case and filed
a charge-sheet in the court of Sub-Divisional Judicial
Magistrate, Anandpur, who, after perusal of the charge-
sheet, framed charges against respondent No.1 under Section
498A as also under Section 494 IPC.
3. Aggrieved by The framing of the charge by the Sub-
Divisional Judicial Magistrate, Anandpur, respondent No.1
filed a petition (Criminal Misc. Case No.1169/94) under
Section 482 of the Code of Criminal Procedure (for short,
Code, in the Orissa High Court for quashing the proceedings
and the charges framed against him. The High Court by its
impugned Judgment dated 3.5.95 partly allowed the petition
with the findings that since respondent No.2 had not herself
personally filed the complaint under Section 494 I.P.C., its
cognizance could not have been taken by the Magistrate in
view of the provisions contained in Section 198(1) of the
Code. Consequently, the charge framed by the Magistrate
under Section 494 I.P.C. was quashed but the charge under
Section 498A I.P.C. was maintained and the petition under
Section 482, Criminal Procedure Code to that extent was
dismissed.
4. It is this Judgment which has been challenged before us
by the State of Orissa. We have heard the learned counsel
for the parties.
5. The Judgment of the High Court so far as it relates to
the quashing of the charge under Section 494 I.P.C., is
wholly erroneous and is based on complete ignorance of the
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relevant statutory provisions.
6. The first Schedule appended to the Code indicates that
the offence under Section 494 I.P.C. is non-cognizable and
bailable. It is thus obvious that the police could not take
cognizance of this offence and that a complaint had to be
filed before a Magistrate.
7. Relevant portion of Section 198 which deals with the
prosecution for Offences against Marriage provides as under:
"198. Prosecution for offences
against marriage.- (1 ) No Court
shall take cognizance of an offence
punishable under Chapter XX of the
Indian Penal Code (45 of 1860)
except upon a complaint made by
some person aggrieved by the
offence:
Provided that-
(a) where such person is under the
age of eighteen years, or is an
idiot or a lunatic, or is from
sickness or infirmity unable to
make a complaint, or is a woman
who, according to the local customs
and manners, ought not to be
compelled to appear in public, some
other person may, with the leave of
the Court, make a complaint on his
or her behalf;
(b) where such person is the
husband and he is serving in any of
the Armed Forces of the Union under
conditions which are certified by
his Commanding Officer as
precluding him from obtaining leave
of absence to enable him to make a
complaint in person, some other
person authorised by the husband in
accordance with the provisions of
sub-section (4) may make a
complaint on his behalf;
(c) there the person aggrieved by
an offence punishable under
[Section 494 or section 495) of the
Indian Penal Code (45 of 1860) is
the wife, complain may be made on
her behalf by her father, mother,
sister, son or daughter or by her
father’s or mother’s brother or
sister [,or, with the leave of the
Court, by any other person related
to her by blood, marriage or
adoption.]
(2)................................
(3)................................
(4)................................
(5)................................
(6)................................
(7)................................
.
8. These provisions set out the prohibition for the Court
from taking cognizance of an offence punishable under
Chapter XX of the Indian Penal Code. The cognizance,
however, can be taken only if the complaint is made by the
person aggrieved by the offence. Clause(c) appended to the
Proviso to Sub-section (1) provides that where a person
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aggrieved is the wife, a complaint may be made on her behalf
by her father, mother, brother, sister, son or daughter or
other relations mentioned therein who are related to her by
blood, marriage or adoption.
9. The High Court relied upon the provisions contained in
Clause (c) and held that since the wife herself had not
filed the complaint and Women’s Commission had complained to
the police, the Sub-Divisional Judicial Magistrate, Anandpur
could not legally take cognizance of the offence. In laying
down this proposition, the High Court forgot that the other
offence namely, the offence under Section 498A I.P.C. was a
cognizable offence and the police was entitled to take
cognizance of the offence irrespective of the person who
gave the first information to it. It is provided in Section
155 as under:-
"155. Information as to non-
cognizable cases and investigation
of such cases.(1) When information
is given to an officer in charge of
a police station of the commission
within the limits of such station
of a non-cognizable offence, he
shall enter or cause to be entered
the substance of the information in
a book tobe kept by such officer in
such form as the State Government
may prescribe in this behalf, and
refer, the information to the
Magistrate.
(2) No police officer shall
investigate a non-cognizable case
without the order of a Magistrate
having power to try such case or
commit the case for trial.
(3) Any police officer receiving
such order may exercise the same
powers in respect of the
investigation (except the power to
arrest without warrant) as an
officer in charge of a police
station may exercise in a
cognizable case.
(4) 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."
10. Sub-section (4) of this Section clearly provides
that where the case relates to two offences of which one
is cognizable, the case shall be deemed to be a cognizable
case notwithstanding that the other offence or offences are
non-cognizable.
11. Sub-section (4) creates a legal fiction and provides
that although a case may comprise of several offences of
which some are cognizable and others are not, it would not
be open to the police to investigate the cognizable offences
only and omit the non-cognizable offences. Since the whole
case (comprising of cognizable and non-cognizable offences)
is to be treated a cognizable, the police had no option but
to investigate the whole of the case and to submit a charge-
sheet in respect of all the offences, cognizable or non-
cognizable both, provided it is found by the police during
investigation that the offences appear, prima facie, to have
been committed.
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12. Sub-section (4) of Section 155 is a new provision
introduced for the first time in the Code in 1973. This was
done to overcome the controversy about investigation of non-
cognizable offences by the police without the leave of the
Magistrate. The statutory provision is specific, precise and
clear and there is no ambiguity in the language employed in
sub-section (4). It is apparent that if the facts reported
to the police disclose both cognizable and non-cognizable
offences, the police would be acting within the scope of its
authority in investigating both the offences as the legal
fiction enacted in Sub-section (4) provides that even non-
cognizable.
13. This Court in Preveen Chandra Mody vs. State of M.P.
AIR 1965 SC 1185 has held that while investigating a
cognizable offences and presenting a charge-sheet for it,
the police are not debarred from investigation any non-
cognizable offence arising out of the same facts and
including them in the charge-sheet.
14. The High Court was thus clearly in error in quashing
the charge under Section 494 I.P.C. on the ground that the
Trial Court could not take cognizance of that offence unless
a complaint was filed personally by the wife or any other
near relation contemplated by Clause (c) of the Proviso to
Section 198(1).
15. The Judgment of the High Court being erroneous has to
be set aside . The appeal is consequently allowed. The
Judgment and order dated 3rd May, 1995 passed by the Orissa
High Court in so far as it purports to quash the charge
under Section 494 I.P.C. and the proceedings relating
thereto is set aside with the direction to the Magistrate to
proceed with the case and dispose it of expeditiously .