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.
The Women’s Commission sent the complaint to the police station where Case 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.
Aggrieved by the framing of the charge Respondent 1 filed a petition under Section 482 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.
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.
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 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 Judicial Magistrate 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.
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.
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.
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 non-cognizable 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 subsection (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable 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 non-cognizable case shall, in that situation, be treated as cognizable.
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).
The judgment of the High Court being erroneous has to be set aside. 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.
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