Punjab-Haryana High Court
Ramesh Chander Bansal And Another vs State Of Haryana And Another on 17 November, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Crl.Misc.No.M-10654 of 2012 (O&M). 1
In the High Court of Punjab and Haryana at
Chandigarh.
Crl.Misc.No.M-10654 of 2012 (O&M).
Date of Decision November 17, 2012.
Ramesh Chander Bansal and another
Petitioners.
Versus
State of Haryana and another
Respondents.
CORAM : HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
Present: -Mr.R.S.Mamli, Advocate,
for the petitioners.
NARESH KUMAR SANGHI,J.
Brief facts of the case are that respondent No. 2- complainant, Sanjay Kumar, presented a complaint before the learned Area Judicial Magistrate, with the allegations that his marriage was solemnized with Mahima alias Deepa on 23.07.2008, co-accused of the petitioners. Immediately after the marriage, respondent No.2 realized that behavior of his wife, Mahima alias Deepa, was not up to mark. On 08.09.2008, his wife misbehaved with him (respondent Crl.Misc.No.M-10654 of 2012 (O&M). 2 No.2) and left the matrimonial home for her parents' house. On 15.11.2008, due to intervention of the Panchayat, the wife of respondent No.2 joined him but again she started misbehaving and maltreating respondent No.2. Ultimately, he learnt that his wife was mentally upset and suffering from acute depression. The said fact was concealed by the family members of his wife from him. On 07.04.2009, Ramesh Chander Bansal petitioner (father of Mahima alias deepa) came to the house of respondent No.2 and insulted him and his old parents, and took away the wife of the respondent No.2. In spite of the sincere efforts made by respondent No.2, his wife failed to join him. During the intervening period, respondent No.2 came to know that earlier his wife was married with some other person and when confronted, her family members conceded the said fact. The said complaint was sent to the Station House Officer of Police Station, Taraori, District Karnal, in terms of Section 156(3) of the Code of Criminal Procedure, on the basis of which, F.I.R. No. 126 dated 24.05.2010, under Sections 323, 420, 494, 495, 506 and 120-B of the Indian Penal Code was registered.
After completion of the investigation, the charge Crl.Misc.No.M-10654 of 2012 (O&M). 3 sheet (report under Section 173 of the Code of Criminal Procedure) was presented.
When the case was fixed for consideration of framing of charges, an application was moved by the petitioners for their discharge, inter-alia, on the ground that their prosecution for the commission of offence punishable under Section 494 of the Indian Penal Code was barred on the basis of FIR. The learned trial Court vide its order dated 19.08.2011 dismissed the application and ordered to frame the charges for the offences punishable under Sections 323, 494, 495, 506 and 120-B of the Indian Penal Code.
The petitioners not being satisfied with the order passed by learned Judicial Magistrate Ist Class, Karnal, filed Criminal Revision No. 131 of 2011 before learned Additional Sessions Judge, Karnal, and the said revision was dismissed vide order dated 21.03.2012 (Annexure P-2). Hence the present petition under Section 482 of the Code of Criminal Procedure for setting aside both the orders passed by the learned courts below.
The sole contention raised by learned counsel for the petitioners is that the learned Magistrate was not competent to take cognizance of the offences punishable Crl.Misc.No.M-10654 of 2012 (O&M). 4 under Sections 494 and 495 of the Indian Penal Code on the basis of the charge-sheet submitted by the police and as such the order dated 19.08.2011 passed by learned Judicial Magistrate Ist Class, Karnal, as well as the order dated 21.03.2012 passed by learned Additional Sessions Judge, Karnal, were liable to be set aside.
Heard.
To appreciate the contention raised herein above, it is advantageous to go through the provisions contained in Section 198 of the Code of Criminal Procedure which are as follows:-
"198. Prosecution for offences against marriage.
(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) 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 Crl.Misc.No.M-10654 of 2012 (O&M). 5 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 authorized by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, 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 to 7) xx xx xx xx xx"
The applicability of above provision and its implication Crl.Misc.No.M-10654 of 2012 (O&M). 6 on a case instituted on the basis of a charge sheet furnished by the police involving offences under Section 494 and 495, besides other cognizable offences such as 498-A IPC etc. was directly considered by the Hon'ble Apex Court in a latest judgment in the case of Ushaben Versus Kishorbhai Chunilal Talpada, (2012) 6 Supreme Court Cases 353, wherein it was held that no fetters can be put on the police to prevent them from investigating the complaint which alleges offences both - under Sections 494 and 498-A, IPC.
A reference can also be made to the case of A.Subash Babu Versus State of A.P., 2011 (3) RCR (Criminal) 674 (SC) wherein a similar plea as put forth by the petitioners in the present case in the similar facts and circumstances, was considered by Hon'ble the Apex Court and it was held that :-
" According to the appellant the person aggrieved by alleged commission of Reportable offences under Sections 494 and 495 is his wife and cognizance of those offences could have been taken only on the basis of the complaint filed by his wife in the court or by someone on her behalf as contemplated by Section 198-A (1) (c) of the Code, and therefore, the learned Magistrate could not have taken cognizance of those offences on the basis of submission of charge sheet by Crl.Misc.No.M-10654 of 2012 (O&M). 7 Sub Inspector of Police on the basis of the investigation into the FIR lodged by respondent No.2 who is not the aggrieved person within the meaning of Section 198 of the Code.
Let us make an attempt to ascertain the purpose of enacting Section 494, IPC. This Section introduces monogamy which is essentially voluntary union of life of one man with one woman to the exclusion of all others. It enacts that neither party must have a spouse living at the time of marriage. Polygamy was practiced in many sections of Hindu society in ancient times. It is not a matter of long past that in India, hypergamy brought forth wholesale polygamy and along with it misery, plight and ignominy to woman having no parallel in the word. In post vedic India a King could take and generally used to have more than one wife. Section 4 of the Hindu Marriage Act nullifies and supersedes such practice all over Indian among the Hindus. Section 494 is intended to achieve laudable object of monogamy. This object can be achieved only by expanding the meaning of the phrase 'aggrieved person'. For variety of reasons the first wife may not choose to file complaint against her husband e.g. when she is assured of re-union by her husband, when husband assures to snap the tie of second marriage etc. Non-filing of the complaint under Section 494, IPC by first wife does not mean that the offence is wiped out and monogamy sought to be achieved by means of Section 494, IPC merely remains in statute book. Having regard to the scope, purpose, context and Crl.Misc.No.M-10654 of 2012 (O&M). 8 object of enacting Section 494, IPC and also the prevailing practices in the society sought to be curbed by Section 494, IPC, there is no manner of doubt that the complainant should be an aggrieved person. Section 198(1)(c) of the Criminal Procedure Code, amongst other things, provides that where the person aggrieved by an offence under Section 494 or Section 495, IPC is the wife, complaint on her behalf may also be filed by her father, mother, sister, son, daughter etc., or with the leave of the court, by any other person related to her by blood, marriage or adoption."
After laying down above, Hon'ble the Apex Court further held that bar of Section 198 of the Code shall not be applicable if the charge sheet filed by the police also includes some other offences which are cognizable and while holding so, the Hon'ble Apex Court observed as under:-
" Here in this case in the charge sheet it is mentioned that the appellant has also committed offence under Section 420 of the Indian Penal Code which is cognizable and, therefore, this is a case which relates to two or more offences of which at least one is cognizable and, therefore, the case must be deemed to be cognizable case notwithstanding that the other offences are non-cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495, IPC. The case of Crl.Misc.No.M-10654 of 2012 (O&M). 9 the respondent No.2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498-A of the IPC. A question may arise as to what should be procedure to be followed by a complainant when a case involves not only non- cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495, IPC should file complaint before a court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498-A of the Indian Penal Code where the case involves one cognizable offence also along with non- cognizable offences it should not be treated as a non- cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which manifested in Section 155 (4) of the Code of Criminal Procedure. Therefore, the arguments that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495, IPC on the basis of submission of charge sheet, cannot be attested and is hereby rejected."
In Gopal Lal Versus State of Rajasthan (1979)2 SCC 170, the requirements of offences under Sections 494 and 495 along with the procedure of the same were again considered and it was held that:-
Crl.Misc.No.M-10654 of 2012 (O&M). 10
" In order to attract the provisions of Section 494, IPC both the marriages of the accused must be valid in the sense that the necessary ceremonies required by the personal law governing the parties must have been duly performed. Though Section 11 of the Hindu Marriage Act provides that any marriage solemnized, if it contravenes the conditions specified in Clause (i) of Section 5 of the said Act, shall be null and void, it also provides that such marriage may on a petition presented by either party thereto, be so declared. Though the law specifically does not cast obligation on either party to seek declaration of nullity of marriage and it may be open to the parties even without recourse to the Court to treat the marriage as a nullity, such a course is neither prudent nor intended and a declaration in terms of Section 11 of the Hindu Marriage Act will have to be asked for, for the purpose of precaution and/or record. Therefore, until the declaration contemplated by Section 11 of the Hindu Marriage Act is made by a competent court, the woman with whom second marriage is solemnized continues to be the wife within the meaning of Section 494 IPC and would be entitled to maintain a complaint against her husband."
Then again in State of Orissa Versus Sharat Chandra Sahu, 1997(1) Recent Criminal Reports 737= (1996) 6 SCC 435, the same question was considered in the similar facts. The facts of the above case were that the Crl.Misc.No.M-10654 of 2012 (O&M). 11 wife made a complaint in writing against her husband to the Women's Commission, making allegations of the offences punishable under Sections 494 and 498-A, IPC. The Women's Commission sent the complaint to the police station and charge sheet came to be filed under both the Sections. The High Court quashed the charge under Section 494, IPC in view of the Provisions of Section 198(1), Cr.P.C. The Hon'ble Supreme Court set aside the order of Orissa High Court and held that the offence under Section 494 is non-cognizable but the offence under Section 498-A, IPC was a cognizable offence and the police was entitled to take cognizance of the said offence and thus the order of quashing charge under Section 494 IPC by the High Court was set aside and it was held as under:-
"These provisions set out the prohibition for the Court from taking cognizance of an offence punishable under Chapter XX of the Indian Penal 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 (1) provides that where a person aggrieved is the wife, a complaint may be 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. The High Court was thus clearly Crl.Misc.No.M-10654 of 2012 (O&M). 12 in error in quashing the charge under Section 494, IPC 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)".
From the above discussed legal position, it comes out that Section 198 sets out the prohibition for the Court from taking cognizance of an offence punishable under Chapter XX of the Indian Penal 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 (1) provides that where a person aggrieved is the wife, a complaint may be 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. Thus where a charge sheet filed by the police after investigating a case registered on the basis of an FIR showing commission of offence under section 494 or section 495 or both only, the court cannot take cognizance on that charge sheet as the same is barred under Section 198 of the Cr.P.C. but if such a charge sheet also includes any cognizable offence such as offence under Section 420, IPC or Section 498-A, IPC etc., Crl.Misc.No.M-10654 of 2012 (O&M). 13 the bar under Section 198 shall not be attracted to such case.
Accordingly, applying the above settled proposition of law to the facts of the case in hand, it comes out that admittedly apart from offences under Sections 494, 495 and 323, IPC, the petitioner accused are put on trial for commission of offence under Section 506, IPC also which is cognizable and if it is so, the order of taking cognizance and putting the petitioners on trial is legal and valid and there is nothing to interfere with the impugned order. In Rajinder Tiwari Versus State (NCT of Delhi), 2007(2) CCJ 226 (Delhi High Court), and Ashok Kumar Chopra Versus Krishna Kumari, 1992 (1) Recent Criminal Reports 23, the allegations were qua offences under Section 494 and 495 only and in those facts, the bar of Section 198 was found applicable but in this case the charge sheet was also for cognizable offences. As such, the case law relied upon by the counsel for the petitioner is of no help to them.
Even otherwise, it is also admitted fact that respondent complainant had filed a complaint with the Area Judicial Magistrate which was sent to the SHO for investigation under the provisions of Section 156(3) of the Crl.Misc.No.M-10654 of 2012 (O&M). 14 Code and as per Section 155(2), the SHO is authorized to investigate a case involving non-cognizable offences with the order of Magistrate having jurisdiction to try such case or commit it for trial and if it is so, the fact remains that the respondent complainant had filed a complaint with the Magistrate and the Magistrate has every right to send it to the SHO for investigation and then to take cognizance as per the report of the SHO and the case will remain a case based on a complaint lodged by the complainant and, thus, this also satisfies the requirements of the provisions of Section 198, Cr.P.C.
As a sequel to the above, there is no infirmity, illegality or impropriety in the orders passed by learned Courts below. Resultantly, finding no merit in the petition, the same is hereby dismissed.
(NARESH KUMAR SANGHI) JUDGE November 17 , 2012.
Anoop Crl.Misc.No.M-10654 of 2012 (O&M). 15