Dhan Bai vs State of Rajasthan

Shiv Kumar Sharma, J.—Instant Misc. petition impugns the order dated July 8, 1997 of the learned Sessions Judge, Alwar whereby criminal revision preferred by the non-petitioner Nos. 2 to 6 (for short the accused) was allowed and cognizance of offences under Sections 494 and 120B of the Indian Penal Code taken by the Special Judicial Magistrate, Alwar against the accused on February 23, 1993 was set aside.

The complainant-petitioner (for short the complainant) instituted a complaint against the accused under Sections 494 and 120B of Indian Penal Code in the Court of Special Judicial Magistrate, Alwar on November 5, 1992. Learned Magistrate forwarded the complaint u/s 156(3), Criminal Procedure Code to Police Station, Pratapgarh for investigation. A report, after investigation was filed by the police station and the learned Magistrate on February 23, 1993 took cognizance of the offences under Sections 494 and 120B, Indian Penal Code against the accused persons. The said order was called in question by the accused persons by filing revision before the learned Sessions Judge, Alwar.

Learned Sessions Judge, Alwar allowed the revision vide its order dated July 8, 1997. While quashing the order of Magistrate, the learned Judge observed that-

(i) the Magistrate had no jurisdiction as from the facts mentioned in the complaint the alleged second marriage had taken place outside the jurisdiction of the Magistrate, and

(ii) Police had no right to investigate the offences under Sections 494 and 120B, Indian Penal Code in view of Section 198, Criminal Procedure Code and no cognizance could have been taken by the Magistrate on the report of the police.

I have bestowed my thoughtful consideration to the rival contentions and carefully scanned the impugned order and the legal position. Before adverting to the pivotal question, it will be useful to examine the relevant statutory provisions.

Relevant portion of Section 198 which deals with the prosecution for offences against the marriage recites 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 complaint made by some person aggrieved by the offence :

Provided that-

(a) ................................

(b) ...................................

(c) where the person aggrieved by an offence punishable u/s 494 or Section 493 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 or with the leave of the Court, by any other person related to her by blood, marriage or adoption."

Section 155, Criminal Procedure Code is related to the information and investigation of non-cognizable cases and provides thus :

"155. Information as to non-cognizable cases and investigation of such cases --(1) When information is given to an officer incharge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer incharge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which atleast one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

Section 182(2), Criminal Procedure Code, provides that-

"Any offence punishable u/s 494 or Section 495 of the Indian Penal Code may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by first marriage or the wife by the first marriage has taken up permanent residence after the commission of the offence."

Section 182, Criminal Procedure Code was amended in the year 1978 to enable a complaint by a woman relating to an offence of bigamy, to be made at the place of permanent residence after the commission of the offence instead of at the place where she last resided with the husband.

Now I proceed to examine the case on hand in the light of statutory provisions mentioned hereinabove. Indisputably the complainant who was residing in Village Dubbo, Police Station Rajgarh, Distt. Alwar, filed complaint in the Court of Special Judicial Magistrate, Alwar, who had jurisdiction to try the offence u/s 494, Indian Penal Code in view of provisions contained in Section 182(2), Criminal Procedure Code as the complainant was residing the jurisdiction of learned Special Magistrate, therefore even if the alleged second marriage had taken place outside the jurisdiction of Magistrate, the complaint was rightly entertained.

The learned Magistrate was within his right in forwarding the complaint for investigation to the Police Station, Pratapgarh u/s 156(3), Criminal Procedure Code. This Court in Ram Narain v. State of Rajasthan, 1988 (2) RLW 37, propounded thus:

"When a private complaint is filed before the Magistrate, he can order investigation by police u/s 156(3) even if taking cognizance of it by him is barred u/s 195(1)(b)(ii) of the Code."

In view of provisions contained in Section 155(2), Criminal Procedure Code a police officer can investigate a non-cognizable case, if Magistrate having jurisdiction to try that case directs him to do so.

Thus provisions contained in Section 198(1), Criminal Procedure Code do not come in the way. Complainant was the person aggrieved by an offence punishable u/s 494, Indian Penal Code and made complaint in the Court of Special Magistrate having jurisdiction to try the offence. The Magistrate forwarded the complaint to the police station u/s 156(3) for investigation and the police after investigation submitted the report on which the Magistrate took cognizance of offences under Sections 494 and 120B, Indian Penal Code against the accused. In my considered view there was no illegality in the orders of the learned Magistrate.

Case of Ambe Prasad v. State, 1987 Rajasthan Criminal Cases 1, relied upon by Mr. Jagdeep Dhanker, learned Senior Advocate appearing of the accused is distinguishable. In that case provisions of Section 198(1), Criminal Procedure Code were flouted as one Raj Kumar Gaur, father of Sangeeta lodged FIR with the Police Station, Jawahar Nagar, Jaipur against Ambe Prasad Jain stating therein that Ambe Prasad was already married but concealing this fact he entered into second marriage with Sangeeta. On this report the Police Station Jawahar Nagar, after necessary investigation, filed charge-sheet against Ambe Prasad Jain and five others for the offences under Sections 494/498, Indian Penal Code. The Judicial Magistrate framed charge u/s 495, Indian Penal Code against Ambe Prasad and 495/109 against other persons. This Court quashed the order of the Magistrate by resorting Section 198(1), Criminal Procedure Code. But in the case on hand complainant instituted complaint strictly in accordance with the provisions contained in Section 198(1), Criminal Procedure Code as such ratio of Ambe Prasad v. State (supra), is not applicable.

Impugned order of the learned Sessions Judge is wholly erroneous and is based on complete ignorance of the relevant statutory provisions, therefore interference u/s 482, Criminal Procedure Code is necessary in the interest of justice.

Resultantly, the petition is allowed and the order dated July 8, 1997 of the learned Sessions Judge, Alwar stands set aside. Order dated February 23, 1993 of the learned Special Judicial Magistrate, Alwar is confirmed. Complainant and accused are directed to appear before the learned Special Judicial Magistrate, Alwar on February 9, 1998 for seeking further instructions.