Swati Sachin Mahajan (Pagare) vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(Bom) 666

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
AURANGABAD BENCH, AT AURANGABAD.
B.R. GAVAI, J.
Swati Sachin Mahajan (Pagare) —Applicant.
versus
The State of Maharashtra — Respondent.
Criminal Application No. 491 of 2007
Decided on : May 4, 2007
Advocates appeared :
Mr. V.D. Sapkal, Advocate, for the applicant.
Mr. S.D. Kaldate, Additional Public Prosecutor, for the respondent.
Reference is answered accordingly

Headnote:Criminal Procedure Code, 1973 - Section 156(3) - Investigation under - Permissibility of - Investigation under Section 156(3) of Code permissible only for a cognizable offence. - It can thus be seen that under sub-section (1) of Section 156 of Cr PC, an officer in-charge of the police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. It can further be seen that by virtue of sub-section (3) of the said section, any Magistrate empowered under Section 190 may order such an investigation as above mentioned. It can thus be seen from conjoint reading of sub- section (1) and sub-section (3) of Section 156 of Cr PC, that an investigation under Section 156(3) would be permissible only for a cognizable offence.
Section 494 of IPC is a non-cogniable offence and, therefore, in view of bar under Section 198(1) of Cr PC, the Court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of IPC, the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in sub-clause (c) of sub-section (1) of Section 198 of the Cr PC. It is thus clear that even after the investigation if a police report is submitted, the Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a com plaint made by anyone else other than the person aggrieved by the offence.
Criminal Procedure Code, 1973 - Sections 198 and 482 - Penal Code, 1860, Sections 109, 494 and 34 - Bigamy - Complaint against husband - Lodged by first wife - Report from police under Section 156(3) of Cr PC called by Magistrate - Offence under Section 494, IPC - Non-cognizable offence - Police report under Section 156(3), Cr PC not relevant - Police cannot file charge-sheet - In given facts police can act only in cases of cognizable offence - Calling of report under Section 156(3), Cr PC not proper. - It is not in dispute that Section 494 of IPC is a non-cognizable offence and, therefore, in view of bar under Section 198(1) of Cr PC. The Court could not take cognizance unless a complaint is made by the person aggrieved by the offence. In case of an offence punishable under Section 494 of IPC the aggrieved person would be wife or a complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or any relative or person mentioned in sub-clause (c) of sub-section (1) of Section 198 of the Cr PC. It is thus clear that even after the investigation if a police report is submitted, the Magistrate would not be in a position to take cognizance on the basis of the said report since cognizance could not be taken on a complaint made by anyone else other than the person aggrieved by the offence.

JUDGMENT :

1. Rule made returnable forthwith. Heard by consent.

2. The learned Additional Public Prosecutor waives service on behalf of the respondent.

3. Being aggrieved by the order dated 2nd February 2007, passed by the learned Judicial Magistrate (First Class), Rahuri, in Criminal Application No. 52/2007, thereby calling for the report under Section 156(3) of the Code of Criminal Procedure, 1973, from Police Station, Rahuri, the applicant has approached this Court by way of present application.

4. The facts, in brief, giving rise to the application are as under :

The applicant was married with original accused no.1 Sachin on 31st May 1998. It is the contention of the applicant that while the marriage of the applicant with original accused no.1 Sachin was in subsistence, accused no.1 performed the second marriage with accused no.2, Sarika. The applicant, therefore, filed complaint being Criminal Application No. 52/2007 in the court of Judicial Magistrate (First Class), Rahuri, under Sections 494, 109 read with Section 34 of the Indian Penal Code. In the said complaint, the afore said order came to be passed on 2nd February 2007. Being aggrieved thereby, the present application is preferred.

5. Mr. V.D. Sapkal, learned Counsel appearing on behalf of the applicant, submits that the impugned order is not sustainable in law. He submits that firstly, a Police report is required to be called under Section 156(3) of the Code of Criminal Procedure (For short, "Cr.P.C.") only when the complaint pertains to a cognizable offence. It is submitted that the offence punishable under Section 494 of the Indian Penal Code (For short, "I.P.C") is a non-cognizable offence and, therefore, the Police report under Section 156(3) could not have been called. Secondly, he submitted that in view of Section 193 of Cr.P.C., the cognizance of an offence punishable under Section 494 of I.P.C. can be taken only on the complaint filed by an aggrieved person. It is submitted that if the Police report is called and the charge sheet is to be filed, then in that event, the cognizance could not be taken since the Police cannot be said to be an aggrieved person. It is, therefore, prayed that the impugned order be quashed and set aside and the learned Magistrate be directed to take necessary steps in accordance with law.

6. Mr. V.D. Sapkal, learned Counsel appearing on behalf of the applicant, relies on two judgments of the Apex Court reported in the case of (i) Madhu Bala Vs. Suresh Kumar and others (AIR 1997 Supreme Court 3104), and in the case of (ii) Central Bureau of Investigation through S.P., Jaipur Vs. State of Rajasthan (2001 ALL M.R. (Cri.) 784. The learned Counsel for the applicant has also relied upon judgment of Andhra Pradesh High Court in the case of M/s. Adithya Alkalods Ltd. and others Vs. M/s. NCC Finance Ltd. and another (2001 CRI.L.J. 1585).

7. Section 156 of the Code of Criminal Procedure reads thus :

"156. (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”

It can thus be seen that under Sub-Section 1 of Section 156 of Cr.P.C., an officer incharge of the Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. It can further be seen that by virtue of Sub-Section 3 of the said Section, any Magistrate empowered under section

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