A STATE OF ORISSA

v.

SHARAT CHANDRA SAHU AND ANR.

OCTOBER 8, 1996

B

[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

Indian Penal Code, 1860:

Ss. 494 and 498A--Bigamy and dowry harassment-Women's Commis-

C sion sending the complaint of wife to police-Case against the husband for

offences under

ss. 494 and 498A registered and Charge-Sheet filed-Sub

Divisional Magistrate framed charges on a petition u/s. 482

Cr.P.C. by the

husband,

High Cowt quashed the charge u/s. 494

/PC holding that since the

wife had r.,ot herself personally filed the complaint u/s. 494 its cognizance

D could not have been taken by the Magistrate-Held, High Court erred in

quashing the charge-Judgment of High Court to that exte.nt is set

aside-Magistrate would proceed with the

case.

Code of Criminal Procedure, 1973:

E

Ss. 155(4) and 198(1)-lnvestigation of cognizable and non-cognizable

offence~~Women's Commission sending to police a complaint of the wife

against her husband for offences u/ss.

494 and 498A

/PC-Police investigated

into the alleged offences and filed charge-sheet under both the courts-Held,

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

F investigating both the offences as the legal fiction enacted

in sub-section ( 4)

of s.155 provides that even non-cognizable case shall, in that situation, be

treated

as cognizable.

Preveen Chandra Mody v. State of M.P., AIR (1965) SC 1185, relied

G on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

768 of 1996.

From the Judgment and Order dated 3.5.95 of the Orissa High Court

H in Crl. M.C. No. 1169 of 1994.

304

STATE v. S.C. SAHU 305

Jana Kalyan Das for the Appellant. A

Satyapal Khushal Chand Pasi for the Respondents.

The following Order of the Court was delivered :

S.

SAGHIR AHMAD, J. Respondent No.1 is the husband of respon- B

dent 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

LP.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 LP.C. for which C

respondent No.l was liable to be punished.

2. The Women's Commission sent the complaint to the 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

D

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

E

Misc. Case No.1169/94) under Section 482 of the Code of Criminal

Proce­

dure (for short, Code) in the Orissa High Court for quashing the proceed-

ings 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

LP.C., its cognizance could not have been taken by the

Magistrate in view of the provisions contained in Section 198(1) of the

Code.

Consequen_tly, the charge framed by the Magistrate

under Section

494 l.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

F

G

of the charge under Section 494 I.P.C., is wholly erroneous and is based H

306 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A on complete ignorance of the relevant statutory provisions.

B

c

D

E

F

G

H

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 (45of1860) 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 accord­

ance with the provisions of sub-section

(4) may make a complaint

on his behalf ;

(c) Where the person aggrieved by an offence punishable under

[Secti01,1494 or section 495] of the Indian Penal Code ( 45 of .1860)

is the wife, complaint 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) ............................................... .

..

STATE v. S.C. SAHU 307

(3) ················································

A

(4) ················································

(5) ················································

(6) .... ; ......................................... .. B

(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 C

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 (i) provides that where a person aggrieved

is the wife, a

complaint maybe 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. D

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

E

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 cog­

nizable 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

F

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 to be kept by G

such officer in such form as the

State Government may prescribe

in this behalf, and refer, the informant 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.

H

308

A

B

SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

(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

C 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

D 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

E police during investigation that the offences appear, prima facie, to have

been committed.

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 con­

troversy about investigation of

non-cognizable offences by the police

F 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

G the legal fiction enacted in Sub-section ( 4) provides that even non-cog­

nizable case shall, in that situation, be treated as cognizable.

13. This Court in Preveen Chandra Mody v.

State of M.P., AIR (1965)

SC 1185 has held that while investigating a cognizable offence and present­

ing a charge-sheet for it, the police are not debarred from investigating any

H non-cognizable offence arising

out of the same facts and including them in

STATEv.S.C.SAHU 309

the charge-sheet. A

14. The High Court was thus clearly in error in quashing the charge

under Section 494 l.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). B

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 C

case and dispose it of expeditiously.

R.P. Appeal allowed.