In so far as present case is concerned, it is not in dispute that Section 494 of I.P.C. is a non-cognizable offence and, therefore, in view of bar under Section 198(1) of Cr.P.C., the court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of I.P.C., the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in Sub-Clause "c" of Sub-Section 1 of Section 198 of the Cr.P.C. It is thus clear that even after the investigation if a Police report is submitted, the learned Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a complaint made by anyone else other than the person aggrieved by the offence. In that view of the matter, the Criminal Application deserves to be allowed.
Bombay High Court
Sow. Swati Sachin Mahajan ... vs The State Of Maharashtra on 4 May, 2007
Equivalent citations: I (2008) DMC 79
B.R. Gavai, J.1. Rule made returnable forthwith. Heard by consent.
2. The learned Additional Public Prosecutor waives service on behalf of the respondent.
3. Being aggrieved by the order dated 2nd February 2007, passed by the learned Judicial Magistrate (First Class), Rahuri, in Criminal Application No. 52/2007, thereby calling for the report under Section 156(3) of the Code of Criminal Procedure, 1973, from Police Station, Rahuri, the applicant has approached this Court by way of present application.
4. The facts, in brief, giving rise to the application are as under:
The applicant was married with original accused No. 1 Sachin on 31st May 1998. It is the contention of the applicant that while the marriage of the applicant with original accused No. 1 Sachin was in subsistence, accused No. 1 performed the second marriage with accused No. 2, Sarika. The applicant, therefore, filed complaint being Criminal Application No. 52/2007 in the court of Judicial Magistrate (First Class), Rahuri, under Sections 494, 109 read with Section 34 of the Indian Penal Code. In the said complaint, the afore said order came to be passed on 2nd February 2007. Being aggrieved thereby, the present application is preferred.
5. Mr. V.D. Sapkal, learned Counsel appearing on behalf of the applicant, submits that the impugned order is not sustainable in law. He submits that firstly, a Police report is required to be called under Section 156(3) of the Code of Criminal Procedure (For short, "Cr.P.C.") only when the complaint pertains to a cognizable offence. It is submitted that the offence punishable under Section 494 of the Indian Penal Code (For short, "I.P.C") is a non-cognizable offence and, therefore, the Police report under Section 156(3) could not have been called. Secondly, he submitted that in view of Section 193 of Cr.P.C., the cognizance of an offence punishable under Section 494 of I.P.C. can be taken only on the complaint filed by an aggrieved person. It is submitted that if the Police report is called and the charge sheet is to be filed, then in that event, Page 1415 the cognizance could not be taken since the Police cannot be said to be an aggrieved person. It is, therefore, prayed that the impugned order be quashed and set aside and the learned Magistrate be directed to take necessary steps in accordance with law.
6. Mr. V.D. Sapkal, learned Counsel appearing on behalf of the applicant, relies on two judgments of the Apex Court reported in the case of (i) Madhu Bala v. Suresh Kumar and Ors. , and in the case of (ii) Central Bureau of Investigation through S.P., Jaipur v. State of Rajasthan 2001 ALL M.R. (Cri.) 784. The learned Counsel for the applicant has also relied upon judgment of Andhra Pradesh High Court in the case of Adithya Alkalods Ltd. and Ors. v. NCC Finance Ltd. and Anr. 2001 CRI.L.J. 1585.
7. Section 156 of the Code of Criminal Procedure reads thus:
156. (1) 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 inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
It can thus be seen that under Sub-Section 1 of Section 156 of Cr.P.C., an officer incharge of the 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 inquire into or try under the provisions of Chapter XIII. It can further be seen that by virtue of Sub-Section 3 of the said Section, any Magistrate empowered under Section 190 may order such an investigation as above mentioned. It can thus be seen from conjoint reading of Sub-Section 1 and Sub-Section 3 of Section 156 of Cr.P.C., that an investigation under Section 156(3) would be permissible only for a cognizable offence.
8. The reliance placed by the learned Counsel for the applicant on the judgment of the Apex Court in the case of Madhu Bala v. Suresh Kumar and Ors. (supra) is well merited. Perusal of the said judgment would reveal that the investigation by a Police Officer under Section 156(1) of Cr.P.C. would be only with respect to a cognizable offence and, therefore, a direction to investigate as contemplated under Sub-Section 1 thereof would also in respect of cognizable offence. The Apex Court in the case of Central Bureau of Investigation through S.P., Jaipur (supra) in paragraph 8 of the judgment has held thus:
The primary responsibility for conducting investigation into offences in cognizable cases vests with such police officer. Section 156(3) of the Code empowers a Magistrate to direct such officer-in-charge of the police Page 1416 station to investigate any cognizable case over which such Magistrate has jurisdiction.
9. Section 198 of Cr.P.C. and particularly Sub-Section 1 thereof reads thus:
198 (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) ...
(b) ...
(c) where the person aggrieved by an offence punishable under Section 494 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, brother, sister, son or daughter or by her fathers or mothers brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
10. The Andhra Pradesh High Court in the case of D. Vijayalakshmi v. D. Sanjeeva Reddy 2001 CRI.L.J. 1583 has held that though as per Andhra Pradesh State Amendment, Section 494 of I.P.C. was made cognizable, however, since there was no amendment to Section 198 of Cr.P.C., the initial cognizance taken by the court upon charge sheet filed by the Investigating Officer, was bad in law.
11. In so far as present case is concerned, it is not in dispute that Section 494 of I.P.C. is a non-cognizable offence and, therefore, in view of bar under Section 198(1) of Cr.P.C., the court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of I.P.C., the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in Sub-Clause "c" of Sub-Section 1 of Section 198 of the Cr.P.C. It is thus clear that even after the investigation if a Police report is submitted, the learned Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a complaint made by anyone else other than the person aggrieved by the offence. In that view of the matter, the Criminal Application deserves to be allowed.
12. In the result, the Criminal Application is allowed and the rule is made absolute in terms of prayer Clauses "C" and "D".
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