Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 922 (RAJ)

Suresh Kumar v. State of Rajasthan

1997-08-01

AMRESH KUMAR SINGH

body1997
Honble SINGH, J. – Heard the learned counsels for the petitioner, learned Public Prosecutor and the learned counsel for non-petitioner No. 2. (2). The facts of the case may be briefly stated as below: Smt. Ganga Devi @ Guddi is legally married wife of Suresh Kumar petitioner no. 1. The marriage of Smt. Ganga Devi was solemnised on 10th February, 1989. Smt. Ganga Devi filed a complaint against the petitioners alleging the commission of offences punishable under Sections 498-A, 109, 494 and 120-B of the Indian PenalCode. The complaint was sent by the learned Judicial Magistrate to the Police under Section 156 (3) of the Criminal Procedure Code for investigation. In compliance with the order passed by the learned Judicial Magistrate the Police investigated the case and after completion of the investigation submitted a report under Section 173 (2) of the Criminal Procedure Code alleging therein that offences under Sections498-A, 494, 109 and 120-B were prima facie made out. The learned Additional Chief Judicial Magistrate, Makrana took cognizance of the offences disclosed by the police report and registered the case at No. 267/94 cognizance of the offence was taken on 15th October, 1994. (3). Feeling aggrieved by the order dated 15th October, 1994 by which cogni-zance had been taken of the above mentioned offences, the accused persons (petitioners) filed a revision petition before the learned Sessions Judge, Merta. The revision petition was transferred to the Court of learned Special Judge, SC/ST Cases (Prevention of Attrocities Act), Merta where it was registered at No. 39/96. The learned Special Judge vide order dated 23rd November, 1996 dismissed the revisionpetition filed by the petitioners. (4). It was urged before the learned Sessions Judge that in view of sub-section (1) of Section 198 (1973) of the Criminal Procedure Code the cognizance of the offences under Section 494 I.P.C. could not have been taken by the learned Additional Chief Judicial Magistrate without a complaint required by Section 198 ofthe Criminal Procedure Code. It was also urged before the learned Sessions Judge that the investigation by the Police in the matter of allegation of bigamy was not authorised and that the cognizance of the offence under Section 498-A I.P.C. by the learned Additional Chief Judicial Magistrate, Makrana was barred by limitation. (5). All the three submissions made by the learned Special Judge were foundto be untenable and the revision was dismissed. (5). All the three submissions made by the learned Special Judge were foundto be untenable and the revision was dismissed. Feeling agggrieved by the order passed by the learned Special Judge the petitioners have approached this Court under Section 482 of the Criminal Procedure Code. (6). The first submission of the learned counsel for the petitioners is that cognizance of the offence punishable under Section 494 of the Indian Penal Codeby the learned Additional Chief Judicial Magistrate, Makrana without a complaint as required by Section 198 (1) of the Criminal Procedure Code was without jurisdiction. In State of Orissa vs. Sharat Chandra Sahu & Anr. (1), a similar question arose before the Honble Supreme Court. (7). Womens Commission had sent complaint to the Police alleging the commi-ssion of offence punishable under Sections 498-A and 494 of the Indian Penal Code. The Police registered the case at No. 418/93 against the respondent No.1 and investigated the case. After completion of investigation a charge-sheet was filed in the Court of learned Sub-Divisional Magistrate, Anandpur who perused the charge-sheet and framed charges against respondent No. 1 under Sections 498-A and 494of the Indian Penal Code. Aggrieved by the framing of the charge by the Sub-Divisional Magistrate, Anandpur, the respondent No. 1 filed a petition before the Orissa High Court for quashing the proceedings and the charges framed against him. The High Court partly allowed the petition with the findings that since respondent No. 2 had not herself personally filed the complaint under Section 494 of the Indian Penal Code the cognizance of the offence under Section 494 of the Indian Penal Code by the learned Sub-Divisional Magistrate was contrary to the provisions of Section 198 (1) of the Criminal Procedure Code. Consequently, the charge framed by the Magistrate under Section 494 of the Indian Penal Code was quashed by the charge under Section 498-A of the Indian Penal Code was maintained and to that extent the petition filed under Section 482 of the Criminal Procedure Code was dismissed. (8). In Special Appeal it was urged before the Honble Supreme Court that theOrissa High Court was not justified in acquitting the accused charged under Section 494 of the Indian Penal Code. Their Lordships of the Honble Supreme Court considered the provisions of Section 198 and sub-section (4) of Section 155 of the Criminal Procedure Code. (8). In Special Appeal it was urged before the Honble Supreme Court that theOrissa High Court was not justified in acquitting the accused charged under Section 494 of the Indian Penal Code. Their Lordships of the Honble Supreme Court considered the provisions of Section 198 and sub-section (4) of Section 155 of the Criminal Procedure Code. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This sub- section authorises the Police Officer to investigate non- cognizable offences also if 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 offence or offences are non-cognizable. (9). The Honble Supreme Court held that in view of sub-section (4) of Section 155 of the Criminal Procedure Code the Police Officer was legally authorised toinvestigate the non-cognizable offences. At Page 789 their Lordships observed as below : 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 offence 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. 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 provisions 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 inves- tigating both the offences as legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable. 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 inves- tigating both the offences as legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable. This Court in Preveen Chandra Mody vs. State of M.P. ( AIR 1965 SC 1185 ), has held that while investigating a cognizable offence and pre- senting a charge-sheet for it, the police are not debarred from investigating any non-cognizable offence arising out of the same facts and including them in the charge-sheet. The High Court was thus clearly in error in quashing the charge under Section 494 of the Indian Penal Code 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). (10). The Supreme Court quahsed the order passed by the Orissa High Court. In view of the authority of the Honble Apex Court, the submission of the learned counsel for the petitioner that the learned Additional Chief Judicial Magistrate, Makrana could not have taken cognizance of the offence under Section 494 of the Indian Penal Code without a proper complaint by the non- petitioner No. 2, is without any force. (11). Since the Police Officer was authorised to conduct the investigation in respect of the cognizable offence punishable under Section 498-A of the Indian Penal Code and the non-cognizable offence punishable under Section 494 of the Indian Penal Code, the Police Officer must be said to be competent to submit charge- sheet in respect of both the offences and the charge-sheet which was sub-mitted before the learned Additional Chief Judicial Magistrate, Makarana on 15th October, 1994 contained allegation relating to both offences, that is, the offence under Section 498-A of the Indian Penal Code and as well as the offence under Section 494 of the Indian Penal Code. (12). The offence under Section 494 of the Indian Penal Code is punishablewith imprisonment for 7 years, therefore, it cannot be said that the act of taking of cognizance of the offence by the learned Additional Chief Judicial Magistrate, Makarana was barred by Section 468 of the Criminal Procedure Code. (12). The offence under Section 494 of the Indian Penal Code is punishablewith imprisonment for 7 years, therefore, it cannot be said that the act of taking of cognizance of the offence by the learned Additional Chief Judicial Magistrate, Makarana was barred by Section 468 of the Criminal Procedure Code. Sub-section (3) of Section 468 expressely provide that for the purpose of this Section, the period of limitation, in relation to offences which may be tried together, shall be determi-ned with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. (13).In view of sub-section (3) of Section 468 of the Criminal Procedure Code the limitation provided in Section 468 of the Criminal Procedure Code was not applicable as the offence under Section 494 of the Indian Penal Code is punishablewith imprisonment for 7 years. (14). For reasons mentioned above there is no force in the submissions made by the learned counsel for the petitioner. Consequently, this petition under Section 482 of the Criminal Procedure Code has no force, it deserves to be dismissed and is hereby dismissed.