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2012 DIGILAW 464 (ORI)

Pintu alias Sujit Kumar Giri v. State of Orissa

2012-10-17

B.K.NAYAK

body2012
ORDER Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel for the informant. 2. Perused the records. 3. In this application under Section 482 of the Code of Criminal Procedure the petitioners challenge the order dated 21-8-2004 passed by the learned S.D.J.M., Balasore in Crl. Trial No. 679 of 2004 taking cognizance of the offences under Sections 498-A, 494, 323/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act against the petitioners. 4. The only contention raised by the learned counsel for the petitioners is that the offence under Section 494 of the Indian Penal Code is a non-cognizable offence, cognizance of which can be taken by the Magistrate only on the basis of a complaint as required under Section 198, Cr. P.C. and that no cognizance in respect of that can be taken on the basis of a police report along with offences under Sections 498-A and 323 of the Indian Penal Code inasmuch as the FIR does not disclose that the offence under Section 494 of the Indian Penal Code is an integral part of offence under Section 498-A of the Indian Penal Code. In this respect he relies on a decision of this Court reported in 2006 (1) OLR 777 ; Ashok Kumar Mohanty v. State of Orissa wherein similar circumstances, cognizance having been taken for offences under Sections 498-A, 494, 506/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, this Court quashed the cognizance under Section 494 of the Indian Penal Code in the absence of a complaint in that respect. For passing such order this Court took note of the provisions under Section 198, Cr. P.C. which curtails the power of the Court to take cognizance of the offences punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. This Court also took into consideration the dictum of the Apex Court in AIR 1984 SC 1108 : (1984 Cri LJ 926) State of U.P. v. Suresh Chandra Srivastava wherein it has been held as under : 6. In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120-B, IPC are committed, the complaint could proceed or not. In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120-B, IPC are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from these contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S. 195 of the Code. 5. However the aforesaid decisions have not taken note of the provision of Section 155(4), Cr. P.C. which was taken note of by the Apex Court in the subsequent decision in the case of State of Orissa v. Sarat Ch. Sahu, 1996 (6) SCC 435 : ( AIR 1997 SC 1 ) wherein it is held as follows : 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 as 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. 6. Similarly in the case of Ushaben v. Kishorbhai Chunilal Talpada; (2012) 6 SCC 353 : (2012 Cri LJ 2234) taking note of sub-section (4) of Section 155, Cr. P.C. the Apex Court held that if a complaint contains the allegation about commission of offences both under Section 498-A of the Indian Penal Code as well as Section 494 of the Indian Penal Code, the Court can take cognizance thereof even on a police report. In view of such pronouncement of the Supreme Court, the decision of this Court in the case of Ashok Kumar Mohanty (supra) cannot be said to have laid down the correct position of law. The contention raised by the learned counsel for the petitioners has no force. 7. In view of such pronouncement of the Supreme Court, the decision of this Court in the case of Ashok Kumar Mohanty (supra) cannot be said to have laid down the correct position of law. The contention raised by the learned counsel for the petitioners has no force. 7. Apart from the above, on going through the copy of the FIR, it is found that there are clear allegations that during the course of torture and cruelty meted out to the opposite party informant the petitioners threatened to drive her away and solemnize a second marriage of the husband of the informant which is definitely an integral part of the offence under Section 498-A of the Indian Penal Code. 8. In the aforesaid circumstances I find no infirmity in the impugned order of cognizance. 9. The CRLMC is accordingly dismissed as being devoid of merit. 10. Interim order of stay of the Criminal Trial No. 679 of 2004 stands vacated. Petition dismissed.