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Smt. Tulshi And Anr.-vs-The State Of Maharashtra on 8 December, 1989

Bombay High Court Smt. Tulshi And Anr.-vs-The State Of Maharashtra on 8 December, 1989
Equivalent citations:1990 (1) BomCR 419, (1989) 91 BOMLR 763, II (1990) DMC 418
Author: M Ratnaparkhi
Bench: M Ratnaparkhi

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

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