USHABEN Vs KISHORBHAI CHUNILAL TALPADA .
Bench: AFTAB ALAM,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-000562-000562 / 2012
Diary number: 5240 / 2010
Advocates: CHARU MATHUR Vs
HEMANTIKA WAHI
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 562 OF 2012 [ARISING OUT OF SLP (CRL.) NO. 2445 OF 2010]
USHABEN … APPELLANT
Versus
KISHORBHAI CHUNILAL TALPADA AND OTHERS … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The challenge in this appeal is to the order passed by a
learned Single Judge of the High Court of Gujarat partly
allowing the petition filed by the respondents under Section
482 of the Code of Criminal Procedure, 1973 (for short, “the
Code”). The prayer made by respondents 1 to 9 was to
quash the complaint filed by the appellant against them
under Sections 498A, 494, 506(2) read with Section 114 of
the Indian Penal Code (for short, “IPC”) and under Sections 3
and 7 of the Dowry Prohibition Act.
3. The appellant is the original complainant. Respondents
1 to 9 are original accused 1 to 9 respectively. Respondent
2 is the husband of the appellant, respondents 8 is the
second wife of respondent 2 and respondents 1, 3 to 7 and 9
are family members of respondent 2 or respondent 8.
4. Gist of the facts stated in the complaint is as under:
The appellant got married to respondent 2 on
7.12.2000. She lived with respondent 2 in the joint family till
18.1.2006. During this period the appellant gave birth to two
children. On 30.7.2007 the appellant was forced to leave the
matrimonial home due to the cruelty meted out to her in the
matrimonial home. During the subsistence of the appellant’s
marriage with respondent 2 in 2008, respondent 2 got
married to respondent 8. Sometime in 2009, when the
appellant came to know about the second marriage of
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respondent 2, she lodged a complaint against respondent 1
to 9 for alleged commission of offences punishable under
Sections 498A, 494, 506(2) read with Section 114 of the IPC
and under Sections 3 and 7 of the Dowry Prohibition Act.
Nadiad Rural Police Station, District Kheda registered it as
CR No. 24 of 2009.
5. Thereafter, respondents 1 to 9 moved an application
before the Gujarat High Court under Section 482 of the
Code, contending, inter alia, that cognizance of offence
under Section 494 of the IPC can be taken only on the
complaint made by an aggrieved person and inasmuch as in
this case the complaint is not made by the aggrieved person,
the police could not have taken cognizance of offence under
Section 494 of the IPC.
6. Before the High Court, a statement was made that
respondents 1 to 9 were not pressing prayer made in the
petition for quashing of offences under Section 498A, 506(2)
read with Section 114 of the IPC as against respondents 1 to
3
5. It was, however, made clear that prayer for quashing of
offence under Section 494 of the IPC was being pressed
against all the accused i.e. respondents 1 to 9.
7. The High Court accepted the contention raised by
respondents 1 to 9 and relying on its earlier judgment in
Babubhai Madhavlal Patel and Anr. vs. State of
Gujarat 1 , the High Court quashed the complaint qua
respondents 6 to 9 against whom only allegation of bigamy
was made. So far as respondents 1 to 5 are concerned the
High Court ordered deletion of offence under section 494 of
the IPC from the complaint and directed that the
investigation of the other offences should proceed. Being
aggrieved by the said judgment, the appellant has filed this
appeal.
8. We have heard learned counsel appearing for the
appellant and learned counsel appearing for respondents 1
to 9. At the outset, we must note that the appellant-wife
has lodged the instant complaint inter alia alleging
1 1969 Cri. L. J. 567
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commission of offence under Section 494 of the IPC. The
complaint is at investigation stage. The police can,
therefore, legally investigate it. However, it is necessary to
refer to certain provisions of the Code and IPC because the
High Court in our opinion has wrongly relied on its earlier
judgment in Babubhai Patel which relates to cognizance of
offences falling in Chapter XX of the Code by a Court.
9. We shall now quote the relevant sections of the IPC and
the Code. Section 494 of the IPC falls in Chapter XX of the
IPC. Chapter XX pertains to offences relating to marriage.
So far as it is relevant, Section 494 reads as under:
“494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 190 of the Code states when cognizance of
offences can be taken by a Magistrate. It reads as under:
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“190. Cognizance of offences by Magistrates- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) Upon receiving a complaint of facts which
constitute such offence; (b) Upon police report of such facts; (c) Upon information received from any person
other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.”
Section 198 of the Code pertains to prosecution for
offences against marriage. Sub-Section 1 thereof is
relevant. It reads as under:
“198. Prosecution for offences against marriage.- (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.”
Section 198 (1)(c) of the Code reads as under :
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“198(1)(c). Where the person aggrieved by an offence punishable under (section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister, (with the leave of the Court) by any other person related to her by blood, marriage or adoption).”
The above provisions indicate that whereas Section
190(1) empowers the Magistrate to take cognizance of any
offence, upon receiving complaint of facts which constitute
such offence; upon police report of such facts; upon
information received from any person other than a police
officer or upon his knowledge that such offence has been
committed, Section 198 which relates to prosecution of
offences against marriage brings in the concept of complaint
by an aggrieved person and Section 198(1)(c) explains how
far the scope of term ‘aggrieved person’ can be extended in
the context of offence under Section 494 of the IPC.
10. We must now turn to Section 198-A of the Code. It
reads thus:
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“198-A. Prosecution of offences under Section 498A of the Indian Penal Code. - No Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, 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.”
11. A conjoint reading of the above provisions makes it
clear that a complaint under Section 494 of the IPC must be
made by the aggrieved person. Section 498A does not fall in
Chapter XX of the IPC. It falls in Chapter XXA. Section 198A
which we have quoted hereinabove, permits a court to take
cognizance of offence punishable under Section 498A upon a
police report of facts which constitute offence. It must be
borne in mind that all these provisions relate to cognizance
of the offence by the court.
12. Complaint is defined under Section 2(d) of the Code.
The definition reads as under:
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“2(d). “Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.”
Explanation to Section 2(d) makes it clear that a report
made by a police officer after investigation of a non-
cognizable offence is to be treated as a complaint and the
officer by whom such a report is made is to be deemed to be
the complainant.
13. Above provisions, lead us to conclude that if a
complaint contains allegations about commission of offence
under Section 498A of the IPC which is a cognizable offence,
apart from allegations about the commission of offence
under Section 494 of the IPC, the court can take cognizance
thereof even on a police report.
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14. Reliance placed by the High Court on its earlier
judgment in Babubhai Patel is misplaced. In that case, the
High Court was dealing with all offences falling under
Chapter XX of the IPC. Initially, the accused were charged
under Section 417 read with Section 114 of the IPC. That
charge was given a go-by and a fresh charge in respect of
Sections 493 to 496 of the IPC was framed. These, offences
fall in Chapter XX of the IPC. Therefore, the High Court held
that cognizance thereof can be taken by the Magistrate only
on the basis of complaint filed under Section 190(1)(a) of the
Code by an aggrieved person. That judgment cannot be
applied to the present case. Facts of that case were
different and there the High Court was dealing with
cognizance of the offences falling under Chapter XX by the
Magistrate. Upshot of the above discussion is that, no
fetters can be put on the police preventing them from
investigating the complaint which alleges offence under
Section 498A of the IPC and also offence under Section 494
of the IPC. In the circumstances, the appeal must succeed.
The impugned order is set aside. Obviously, therefore, the
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direction to delete Section 494 of the IPC is set aside. The
police shall investigate the complaint in accordance with law.
15. The appeal is disposed of in the aforestated terms.
……………………………………………..J. (AFTAB ALAM)
……………………………………………..J. (RANJANA PRAKASH DESAI)
NEW DELHI, MARCH 23, 2012.
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