Bombay High Court Smt. Archana Harshwardhan -vs- Commissioner Of Police, The State on 23 July, 2007
Equivalent citations:2007 (109) Bom L R 1724
Author: D Sinha
Bench: D Sinha, B Dharmadhikari

JUDGMENT

D.D. Sinha, J.

Page 1727

1. Heard Shri S.V. Manohar, learned Counsel for Petitioners and Smt. S.S. Wandile, learned Additional Public Prosecutor for Respondents. Rule, made returnable forthwith by consent of parties.

2. Shri Manohar, learned Counsel for petitioners has contended that in the instant Criminal Writ Petition, grievance of petitioners is that, complainant has filed police complaint dated 13.03.2007 against Shri Harshwardhan Chaturvedi (accused No. 1 -husband of petitioner No. 1), Smt. Asha Chaturvedi (mother of accused No. 1), Dr. Prakash Chaturvedi (father of accused No. 1) and Ku. Jaya Chaturvedi (sister of accused No. 1), for the offence punishable under Sections 498A and 420 read with Section 34 of Indian Penal Code, similarly under Sections 3 and 4 of Prohibition of Dowry Act, as well as under the provisions of Prevention of Women from Domestic Violence Act. Shri Manohar, learned Counsel for petitioners has submitted that apart from the above referred complaint, allegations are also made in the police report that the accused No. 1 – Harshwardhan Chaturvedi, before marriage was solemnized between him and petitioner No. 1 in the year 2000 was patient of HIV Positive. It is further contended that the accused No. 1 was fully aware about the deadly ailment he was suffering from, prior to getting married to petitioner No. 1. The accused No. 1 deliberately and purposely did not disclose these facts to the petitioner No. 1 and performed the marriage with her. It is further submitted that the act of accused No. 1 falls within the ambit of provisions of Section 420 of Indian Penal Code as well as Section 308 of the Code. It is contended that in the instant case, though the Police Station Officer, Dhantoli registered crime against the above referred accused persons for the offence punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, Sections 2 and 3 of Dowry Prohibition Act and Section 3 of the Prevention of Women from Domestic Violence Act. However, for offence punishable under Section 420 as well as Section 308 of the Code, no crime has been registered by the police station concerned, though the cognizable offence is made out. It is contended that in view of the decision of the Hon’ble Apex Court (Ramesh Kumari v. State (NCT of Delhi) and Ors.), it was incumbent on the Police Station Officer to register the offence if the complaint discloses such cognizable offence, and it is only thereafter the investigating officer is required to conduct the investigation and take it to its logical end by filing charge sheet or by obtaining necessary orders from the Magistrate in the Summary Proceeding.

Page 1728

3. Shri Manohar, learned Counsel for petitioners has further contended that in the instant case, since the police station officer has not taken cognizance in respect of the cognizable offences disclosed in the complaint, appropriate directions in this regard be given.

4. Smt. Wandile, learned Additional Public Prosecutor has not disputed this fact of lodging of complaint by the complainants/petitioners as well as registration of crime for the offences under Sections 498A and 406 of Indian Penal Code, as well as under Sections 3 and 4 of the Dowry Prohibition Act and under the provisions of Prohibition of Women from Domestic Violence Act. However, police is yet to register offence under the provisions of Section 420 and 308 of Indian Penal Code for want of adequate evidence, however, as and when such evidence is available, collected the accused persons shall also be prosecuted for the offence punishable under Sections 420 and 308 of Indian Penal Code.

5. Before considering the issues involved in the present Criminal Writ Petition, it would be appropriate for us to consider the observations of the Hon’ble Apex Court in paragraph No. 4 of its judgment in the case of Ramesh Kumari [supra], which reads thus:

4. That, the Police Officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code are no more res integra. The point of law has been set at rest by this Court in the case of State of Haryana and Ors v. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under:

31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154[1] of the Code, the concerned police