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2001 DIGILAW 308 (ORI)

EKKA GOUDA ALIAS MOHANKUDA v. STATE OF ORISSA

2001-07-13

L.MOHAPATRA

body2001
JUDGMENT : L. Mohapatra, J. - This application u/s 482, Code of Criminal Procedure has been filed for quashing the order dated 17.4.1998 taking cognizance of the offences alleged to have been committed under Sections 498-A, 494 and 506 read with Sections 34 and 109 of the Penal Code and Section 4 of the Dowry Prohibition Act. 2. On the basis of an FIR lodged by one Smt. Draupati Gauda, Purushottampur P.S. Case No. 152 (7) of 1997 dated 20.11.97 corresponding to G.R. Case No. 152 of 1997 in the Court of the Judicial Magistrate, First Class, Purushottampur, had been initiated. The allegation made in the FIR is that the informant had married to Dhoba Gouda and at the time of marriage the father of the informant had given some dowry articles. The accused persons demanded more dowry to which the family members of the informant could not comply and she was tortured by the mother-in-law and sister-in-law. In the year 1996 on the day of Shripanchami at about 10 a.m. the in-laws of the informant assaulted her and drove her out of the house. Subsequently the husband of the informant, accused Dhoba Gouda, got married for the second time. On the basis of these allegations made in the FIR, investigation was conducted and charge-sheet was submitted for commission of the aforesaid offences. After submission of charge-sheet the learned Magistrate by order dated 17.4.1998 took cognizance of the offences against the present Petitioners. 3. Shri R.K. Nayak, learned Counsel appearing for the Petitioners, submitted that Section 494 of the Penal Code comes under Chapter XX and as provided in Section 198, Code of Criminal Procedure no Court shall take cognizance of an offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. According to Shri Nayak, no complaint having been filed by the informant with regard to offence u/s 494, the learned Magistrate lacked jurisdiction in taking cognizance of offence u/s 494 of -the Penal Code. Reliance is placed by the learned Counsel for Petitioners on a decision reported in D. Vijayalakshmi Vs. D. Sanjeeva Reddy. In he aforesaid reported case, investigation was made by the police in respect of an offence u/s 494 of the Penal Code. The investigation was made on the basis of an amendment made by the State of Andhra Pradesh making the offence cognizable. D. Sanjeeva Reddy. In he aforesaid reported case, investigation was made by the police in respect of an offence u/s 494 of the Penal Code. The investigation was made on the basis of an amendment made by the State of Andhra Pradesh making the offence cognizable. Learned Single Judge of Andhra Pradesh High Court was of the view that even if the offence u/s 494 of the Penal Code has been made cognizable by way of amendment, no amendment has been made in Section 198, Code of Criminal Procedure The bar u/s 198, Code of Criminal Procedure is for the Court and not for the investigating agency. The Court further held that although the agency is at liberty to register a case and conduct investigation into the offence u/s 494 of the Penal Code, the Court is precluded from taking cognizance of the said offence, in view of the mandatory provision of Section 198, Code of Criminal Procedure This Court in a decision reported in (1995) 9 OCR 536: Sa rat Chandra Sahoo v. State of Orissa and Anr.,also held that the prescription prescribed u/s 198, Code of Criminal Procedure is absolute so far as offences punishable under Chapter-XX of the Penal Code are concerned. 4. Although the High Court of Andhra Pradesh and this Court in the aforesaid two decisions were of the view that offence u/s 494 of the Penal Code which comes under Chapter XX thereof has to be entertained only on the basis of a complaint, the Apex Court in the decision reported in (1997) 12 OCR (SC) 133: State of Orissa v. Sharat Chandra Sahu and Anr., which was rendered in the appeal carried by the State of Orissa against the judgment of this Court in Sarat Chandra Sahoo's case (supra), held that although a case may comprise of several offences of which some are cognizable and Ors. are not, it would not be open to the Police to investigate cognizable offence only and omit non-cognizable offences. Since the whole case comprising of cognizable offences offences is to be treated as cognizable, the Police has no option but to investigate the whole case,and submit charge-sheet in respect of the offences both cognizable and non cognizable. 5. are not, it would not be open to the Police to investigate cognizable offence only and omit non-cognizable offences. Since the whole case comprising of cognizable offences offences is to be treated as cognizable, the Police has no option but to investigate the whole case,and submit charge-sheet in respect of the offences both cognizable and non cognizable. 5. In view of the decision of the Apex Court, the contention raised by the learned Counsel for Petitioners that neither the Police had authority to investigate nor the Magistrate had any jurisdiction to take cognizance has no force. I, therefore, do not find any merit in this application and accordingly the Criminal Misc. Case is dismissed. Final Result : Dismissed