Case Summary
| Citation | State of Orissa v. Sharat Chandra Sahu (1996) 6 SCC 435 |
| Judgment by | S. SAGHIR AHMAD, J. |
| Keywords | Bigamy, Cruelty to married women, husband, wife, Noncognizable offence, cognizable offence, Complaint, FIR, SHO, Magistrate, |
| Facts | 1. A wife alleged her husband under section 494 IPC for bigamy and also under section 498-A IPC for cruelty by a complaint in Women’s commission. 2. This complaint was forwarded to police station where the same was registered as FIR against the husband. The police then investigated the matter and filed chargesheet into the court. 3. The court framed the charges against the husband u/s 494 & 498-A IPC. 4. Aggrieved by this the husband filed petition in the High Court u/s 482 CrPC for quashing the proceedings and charges. 5. The High Court observed that as per the provision under section 198(1)(c) CrPC, a Magistrate shall not take cogniznace of offence u/s 494 IPC if the aggrieved party itself did not file the complaint. Therefore High Court quashed the charges framed u/s 494 IPC but found the charges u/s 498-A IPC maintainable. 6. The Supreme Court however declared this order of high court incorrect. |
| Issues | 1. Whether police can register an FIR u/s 494 and 498-A without the order of a magistrate as offence under section 494 is noncognizable ? 2. Whether a magistrate can take cognisance of offence u/s 494 if the aggrieved party herself did not complain but the other party complained ? 3. What is the law for police to register an FIR without the order of a Magistrate where a case constitutes noncognizable offence as well as at least one cognizable offence ? |
| Contentions | 1. Police cannot register FIR without the order of a magistrate in a noncognizable case. 2. A magistrate cannot take cognisance of offence u/s 494 IPC if the aggrieved party herself did not complain {198(1)(c)}. |
| Law Points | CrPC – 482, 198(1)(c), First Schedule, 154, 155(4), 190 IPC – 498- A, 494, 495 The Hindu Marriage Act – Section 5(i) |
| Judgement | The Supreme Court stated that offence u/s 494 is a non cognizable and bailable as per the first schedule part 1 of CrPC, therefore, it is thus obvious that the police could not take cognizance of this offence and that a complaint had to be filed before a Magistrate. But the other offence namely, the offence under Section 498-A IPC was a cognizable offence and the police was entitled to take cognizance of the offence irrespective of the person who gave the first information to it as provided by section 155(4) CrPC read with the judgment delivered in the case of Pravin Chandra Mody v. State of Andhra Pradesh, AIR 1965 SCC 1185. The Supreme Court set aside the order and judgment of the High Court with the direction to the Magistrate to proceed with the case and dispose of it expeditiously.) |
| Ratio Decidendi & Case Authority | 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 noncognizable offences by the police without the leave of the Magistrate. The statutory provision 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 noncognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even a noncognizable case shall, in that situation, be treated as cognizable. This Court in Pravin Chandra Mody v. State of A.P. [AIR 1965 SC 1185] has held that while investigating a cognizable offence and presenting 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. |
Full Case Details
S. SAGHIR AHMAD, J. – Respondent 1 is the husband of Respondent 2 who made a
complaint in writing to the Women’s Commission setting out therein that Respondent 1 had
contracted a second marriage and had thus committed an offence punishable under Section 494
IPC. It was also alleged that ever since the marriage with her, he had been making demands for
money being paid to him which amounted to her harassment and constituted the offence
punishable under Section 498-A IPC for which Respondent 1 was liable to be punished.
2. The Women’s Commission sent the complaint to the police station where GR Case No.
418 of 1993 was registered against Respondent 1. The police investigated the case and filed a
charge-sheet in the Court of Sub-Divisional Judicial Magistrate, Anandpur, who, after perusal
of the charge-sheet, framed charges against Respondent 1 under Section 498-A as also under
Section 494 IPC.
3. Aggrieved by the framing of the charge by the Sub-Divisional Judicial Magistrate,
Anandpur, Respondent 1 filed a petition (Criminal Miscellaneous Case No. 1169 of 1994) under
Section 482 of the Code of Criminal Procedure (for short, the Code) in the Orissa High Court
for quashing the proceedings and the charges framed against him. The High Court by its
impugned judgment dated 3-5-1995 partly allowed the petition with the findings that since
Respondent 2 had not herself personally filed the complaint under Section 494 IPC, its
cognizance could not have been taken by the Magistrate in view of the provisions contained in
Section 198(1)(c) of the Code. Consequently, the charge framed by the Magistrate under
Section 494 IPC was quashed but the charge under Section 498-A IPC was maintained and the
petition under Section 482 Criminal Procedure Code to that extent was dismissed.
5. The judgment of the High Court so far as it relates to the quashing of the charge under
Section 494 IPC, is wholly erroneous and is based on complete ignorance of the relevant
statutory provisions. The first Schedule appended to the Code indicates that the offence under
Section 494 IPC is non-cognizable and bailable. It is thus obvious that the police could not take
cognizance of this offence and that a complaint had to be filed before a Magistrate.
8. 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.
9. The High Court relied upon the provisions contained in clause (c) and held that since the
wife herself had not filed the complaint and Women’s Commission had complained to the
police, the Sub-Divisional Judicial Magistrate, Anandpur could not legally take cognizance of
the offence. In laying down this proposition, the High Court forgot that the other offence
namely, the offence under Section 498-A IPC was a cognizable offence and the police was
entitled to take cognizance of the offence irrespective of the person who gave the first
information to it.
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10. Sub-section (4) of Section 155 clearly provides that where the case relates to two
offences of which one is cognizable, the case shall be deemed to be a cognizable case
notwithstanding that the other offence or offences are non-cognizable.
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.
12. 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 noncognizable offences by the police without the leave of the Magistrate. The statutory provision
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 noncognizable offences, the police would be acting within the scope of its authority in investigating
both the offences as the legal fiction enacted in sub-section (4) provides that even a noncognizable case shall, in that situation, be treated as cognizable.
13. This Court in Pravin Chandra Mody v. State of A.P. [AIR 1965 SC 1185] has held that
while investigating a cognizable offence and presenting 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.
14. The High Court was thus clearly 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).
15. The judgment of the High Court being erroneous has to be set aside. The appeal is
consequently allowed. The judgment and order dated 3-5-1995 passed by the Orissa High Court
insofar as it purports to quash the charge under Section 494 IPC and the proceedings relating
thereto is set aside with the direction to the Magistrate to proceed with the case and dispose of
it expeditiously.
