Bombay High Court
Smt. Tulshi And Anr. vs The State Of Maharashtra on 8 December, 1989
Equivalent citations: 1990(1)BOMCR419, (1989)91BOMLR763, II(1990)DMC418
JUDGMENT M.S. Ratnaparkhi, J.
1. The order passed by the Assistant Sessions Judge, Nagpur on 22-6-1989 on Exhibit 8 in Sessions Trial No. 264 of 86 refusing to discharge the petitioners of the offence punishable under section 498-A of the Indian Penal Code has been challenged in this proceeding.
2. The petitioner 1 is the mother of petitioner 2. Mahadeo, the petitioner 2 was married to one Kamlabai. However, he subsequently married to Shakuntala who is supposed to be the victim of the present offence. On or about 24-5-1986. Shakuntala and her child of about 7 months' old were found in the well. They were taken out of the well. But by that time the child was dead. Shakuntala, however, survived. The Police registered offence under sections 302 and 309 of the Indian Penal Code against Shakuntala. The investigation in that case proceeded. Ultimately, a charge-sheet came to be filed against Shakuntala before the Judicial Magistrate. First Class. The Judicial magistrate, First Class committed the case to the Court of Sessions and Sessions Trial No. 2/87 is now pending before the Sessions Court at Nagpur.
3. While the above offence was pending investigation, it transpired that Shakuntala was harassed and ill-treated by the present petitioners. The Officer in charge of investigation of that offence, therefore, lodged his F.I.R. and Crime No. 84/86 came to be registered. This crime was further investigated. The crime was registered under sections 306 and 498A of the Indian Penal Code. On due investigation, charge-sheet came to be filed before the Judicial Magistrate, First Class. The learned Magistrate committed the case to the Court at Sessions and it was Sessions Trial No. 264/86. While this case was pending before the Court of Sessions, the accused (present petitioners) filed an application for discharge under section 227 of the Criminal Procedure Code. One of the contentions raised in that application was that the charge under section 306 of the Indian Penal Code could not survive inasmuch as Shakuntala was still alive and there could be no offence under section 306 of the Indian Penal Code. The charge under section 438 of the Indian Penal Code was, thus, assailed on this ground. As far as the charge under section 498-A is concerned, it was the contention of the petitioners that the whole investigation has been vitiated, because the Police could not investigate into the matter as the offence under section 498-A was non cognizable No. permission was obtained from the Magistrate to investigate this offence. Thus, the whole exercise of investigation undertaken by the investigating machinery is not only futile but it is vitiated. It is further contended that no Court could take cognizance of the offence under section 498-A of the Indian Penal Code except upon the report which constitutes such offence or upon a complaint made by a person aggrieved by the offence or by her father or mother, brother, sister 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. It was, thus contended that the Court had no option but to discharge the accused.
4. The learned Assistant Sessions Judge heard both the parties and he agreed with the contention of the accused that the charge under section 306 was not sustainable. He, therefore, discharged the accused. As far as the charge under section 498-A of the Indian Penal Code, the learned Assistant Judge was of the view that this point could not be considered at this stage, because the necessary evidence was not brought before him. He, therefore, rejected the second contention. In the result, he discharged the accused of an offence punishable under section 306 of the penal Code and transferred the case to the Chief Judicial Magistrate with a direction that he should try the case and decide it according to law. It is this order which has been challenged by the petitioners. It may be pointed out at this stage that the order discharging the petitioners of the offence punishable under section 306 of the Indian Penal Code has not been challenged before this Court, so far.
5. Mr. Dandekar, the learned Advocate for the petitioners strenuously urged before me that it was not proper for the learned Assistant Judge to transfer the case to the Chief Judicial Magistrate with a direction to decide according to law, because the Magistrate could not in any case take cognizance of the matter. Interestingly enough, this petition is filed not only under section 397 of the Criminal procedure Code, but it is also filed under section 482 of the Code. What the learned Advocate for the petitioners urged before me was that, the very exercise of investigating into this part of the case was not only futile, but the whole thing has been vitiated, because the Police under the Criminal Procedure Code had no powers to take cognizance of the matter. As already pointed out, there was never any complaint (not to speak of complaint by a competent person) before the Police that Shakuntala was being harassed or cruelly dealt with either by the petitioners or anybody else. The Police were seized of the matters connected with Shakuntala jumping in a well alongwith her child of 7 months' old. It is during the course of that investigation that the Police came to know that Shakuntala was harassed and cruelly dealt with while she was staying with the petitioner No. 2. Thus, at the most it can be said that the Police came to know about the harassment and ill-treatment to Shakuntala during investigation of some other case. The question which Mr. Dandekar posed before this Court was, whether this could authorise the Police or investigating machinery to proceed to investigate into this offence under section 498-A of the Indian Penal Code. It will be relevant at this stage to look to the schedule attached with the Criminal Procedure Code. As is well known, section 498-A of the Indian Penal code came to be inserted in the Indian Penal Code on 25-12-1983. Column 4 of the schedule reads as under :---
"If information relating to the commission of the offence is given to in charge of the Police Station by the person aggrieved by the offence or by any person relating to her by blood, marriage or adoption or if there is no such relative by any of the public servants belonging to such class or category, as may be notified by the State Government in this behalf."
It is thus clear that the cognizability of this offence is limited and it is circumscribed by the conditions enumerated in the Schedule itself. If these conditions are complied with, then only it becomes a cognizable offence otherwise it is not a cognizable offence. There is no dispute at this stage that none of the conditions enumerated in column 4 of the schedule is complied with. To repeat it once again, this offence of harassment or ill-treatment has not been reported by the aggrieved person Shakuntala herself. None of the persons related to Shakuntala by blood, marriage or adoption has reported this matter to the Police None of the public servants has reported this matter to the Police. The Police themselves came to know of this offence from some person during the investigation of the other case and they took the responsibility of investigating into this offence at their own risk. This is the factual position that prevails.
6. Mr. Dandekar strenuously urged before me that the very exercise of investigation into this offence has been vitiated, because the Police can investigate of their own accord only in cognizable cases and not in non-cognizable cases. Section 155 of the Criminal Procedure Code creates a bar in the investigation of the non cognizable offences by the Police Officer except with the permission of the Magistrate. The learned Counsel further invited my attention to sub-clause (4) of section 155 of the Criminal Procedure Code which reads as under :---
"Where 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 offences are non-cognizable".
The learned Additional Public Prosecutor relying on this clause urged before me that the offence came to be registered (in Crime No. 64/86 under two sections, namely section 306 and section 498-A of the Indian Penal Code. It was urged before me that section 306 of the Indian Penal Code is cognizable and therefore, the Police could proceed with the investigation of this matter even though section 498-A was non-cognizable. Resort was taken to this enabling provision under sub-section (4) of section 155 of the Criminal Procedure Code. It, however, appears that section 306 of the Indian Penal code was taken resort to only as a camouflage because everybody knew then that there was never an offence punishable under section 306. Section 306 of the Indian Penal Code deals with abetment to the commission of suicide. Unless there is suicide, there can be no abetment to commit suicide. Thus, the pre-requisite for an offence punishable under section 306 was the suicide. The centre point around which the whole case under section 306 revolved by Shakuntala herself. Shakuntala was very much alive then and she is alive even today and facing a charge of murder and attempt to commit suicide before the Sessions Court at Nagpur. When shakuntala was alive, there could be no offence under section 306 of the Indian Penal code. The investigating machinery, thus, wants to take the benefit of section 306 only to justify the investigation of the offence punishable under section 498A of the Penal Code. This exercise, in my opinion, is mala fide. If resort is taken only to justify the trodding into the sphere which the investigation machinery could not trod then the whole exercise becomes vitiated.
7. What we find in the present case is that, there was no offence punishable under section 306 of the Indian Penal Code. The Police, therefore, could not register the case under section 306 of the Indian Penal Code. They have registered that case inspite of the knowledge that it could not be registered. They cannot, therefore, rely on that offence so as to justify the investigation of other offence.
8. Crime No. 64/86 was registered in connection with two offences i.e. section 306 and section 498-A of the Indian Penal Code. To repeat it once again, the offence under section 306 was in law, non-existent. What was in existence, under law, is the offence punishable under section 498-A of the Indian Penal code which has not been made cognizable. The Schedule to which I have adverted in the preceding part of the Judgment specifically shows that this offence becomes cognizable only on the fulfillment of the certain conditions. As long as those conditions are not fulfilled, the offence remains non-cognizable. It is an admitted position in the present case that none of the requirements in the Schedule (column 4) has been complied with or satisfied. The bare position that survives at this moment is that the cognizable offence was non-existent. But the Police relied on that non-existing offence for justification of investigation into a non-cognizable offence. Whether it could be permitted in law, that is the real question. I have already adverted to section 155 of the Criminal Procedure Code which unequivocally shows that it will not be competent for the Police to investigate into a non cognizable offence unless there is a permission from the Magistrate. In the present case, there is no such permission. There being no permission, the bar continues against the investigation. Thus, the investigation which has proceeded inspite of the statutory bar must necessarily be vitiated. We are not very much concerned here with the report of investigation or the contents of investigation. What we are really concerned with is that when the Police investigate into a non-cognizable offence without the permission of the Court, the report which they ultimately send is not a Police report as contemplated under section 173(2) of the Criminal procedure code. This thing in the common parlance is called as a charge -sheet. In non cognizable offence, the Police cannot send charge-sheet to the Court, but if at all they can file only a complaint before the Court. I am particularly pointing out this because while considering section 190-A of the Criminal Procedure Code, this point shall have to be examined. I shall come to that point a bit subsequently. For the present, it is enough to point out that the report that the Police have placed before the Magistrate is a complaint contemplated under section 2(d) of the Criminal Procedure Code. To repeat it once again, this cannot be called as a report under section 173(2) of the Criminal Procedure Code. The Magistrate is called upon to take cognizance on the basis of the report which is virtually a complaint under section 2(d) of the Criminal Procedure Code. The question is whether the Magistrate can take cognizance of this matter; Because the position which persists today is that the petitioners have already been discharged of the offence punishable under section 306. That charge is efaced and now the Sessions Judge has transferred the case for trial according to law to the Chief Judicial Magistrate. This case now consists of only a charge under section 498A of the Indian Penal Code. Thus, what the Magistrate has been called upon today to do is to take cognizance of an offence punishable under section 498A of the Indian Penal code and the learned Chief Judicial Magistrate has been put to an embarrassing position because of the discharge order passed by the Assistant Sessions Judge (while discharging the accused for an offence under section 306).
8-A. It will be relevant at this stage to refer to section 198-A of the Criminal Procedure Code. Section 198-A reads as follows :---
"No Court shall take cognizance of offence punishable under section 498-A of the Indian Penal Code (45 of 60) except upon the Police report of fact which constitutes such offence or upon a complaint made by person aggrieved by the offence or by her father or mother, brother, or sister 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".
Section 198-A thus creates a statutory bar against taking cognizance of some particular offences by the Magistrate. Offence under section 498-A is an offence in respect of which the bar occurs. The Magistrate can take cognizance only under two circumstances (1) when there is a Police report of facts which constitutes such offence and (ii) upon complaint made by the person aggrieved by the offence or by her father or mother, brother, sister 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. As far as the second category is concerned, it is an undisputed position that there is no complaint by either of the persons enumerated in this exception. This Court is now called upon to decide whether the Court justifiably could take cognizance of the Police report which is in a form of a charge-sheet presented before the Court. To repeat it once again, it has been specifically observed that the offence was non-cognizable and the Police could not justifiably investigate into it without the permission of the Magistrate. They have investigated into it without the permission of the Magistrate. Thus, in law it cannot be an investigation, but it can only be an enquiry at the most. Consequently the report which the Police put up before the Magistrate would not be a report contemplated under section 173(2) of the Criminal Procedure Code, but it would be only a complaint under section 2(d) of the Criminal Procedure Code. The Magistrate under section 190 of the Criminal Procedure can take cognizance (i) upon receiving Police report of the fact constituting such offence (ii) complaint made by person aggrieved by such offence or upon his own knowledge that the offence has been committed. It must be pointed out at this stage that the power to take cognizance under section 190 is subject to the provisions of Chapter 14 which includes section 498-A. In this case there is no Police report contemplated under sub-clause (b) of Clause 1 of section 190. The Magistrate would, therefore, be justified in normal cases in taking cognizance on the complaint of facts which constituted offence and upon the information received from any person other than the person aggrieved or upon his own knowledge. These two provisions are to be read in the light of section 198-A of the Cr.P.C. To repeat it once again, that section 198-A of the Cr.P.C. is a clause on the general powers of the Magistrate to take cognizance. This section creates a bar in taking cognizance. The bar is absolute and not conditional inasmuch as this section starts with the words 'No court shall take cognizance........" Thus, unless there is a compliance of the conditions removing these bars, the Magistrate would be barred from taking cognizance of the offence.
9. The report which is now before the Magistrate in the form of the charge-sheet is not a complaint made by the person aggrieved by the offence. It is not even a report contemplated under section 173(2) of the Criminal Procedure Code. Thus, by mere method of elimination what remains is that the Magistrate cannot take cognizance of the offence under section 498-A of the Indian Penal code pure and simple as there is neither police report contemplated under section 173(2) or a complaint from the aggrieved person or her relation. It is only on the compliance of these two conditions that the bar is removed and the Magistrate becomes competent to take cognizance. If the bar is not removed, the Magistrate cannot justifiably take cognizance. Thus, what appears from the record is that, section 306 has been completely efaced because of the discharge order (which has not been challenged before the superior Court). According to law, the chief Judicial Magistrate is left with taking cognizance of a single charge i.e. under section 498-A of the Indian Penal Code. There is a bar created by the statute which does not permit the Magistrate to take cognizance of the offence. The Magistrate would, therefore, not be competent to try the case according to law, because there is a bar in taking cognizance of that case.
10. The legal position standing as it is, it is apparent that the Magistrate cannot take cognizance of the matter because of the bar which has not been removed. There is, thus, hardly any scope for proceeding with this case according to law. This is exactly where this Court can act under its inherent powers enumerated in section 482 of Criminal Procedure Code. The trial of the offence inspite of the bar created by section 198-A would amount to abusing the course of justice. This Court would, therefore, be justified in quashing those proceedings.
11. The petition is, therefore, allowed. The Criminal Case No. 182 of 1989 pending before the Chief Judicial Magistrate Nagpur is hereby quashed. The rule is made absolute in terms above.