Kumari Manju Saxena vs State

Rajeshwar Singh, J.—This is an application u/s 482 Code of Criminal Procedure. The facts alleged in the application are that Smt. Manju Srivastava was married to one Mohan Babu Saxena and the present applicant Km. Manju Saxena is the sister of Mohan Babu Saxena. It seems that there were some differences between Smt. Manju Srivastava and her husband and his relations of other side. Due to it she had to be taken away by her father with the help of police, in this respect Smt. Manju Srivastava lodged a First Information Report with the police, which was under investigation. Before it could be finalised, according to the application, Smt. Manju Srivastava filed a complaint against her husband and in laws including the present applicant. That complaint is said to have been dismissed u/s 203 Code of Criminal Procedure. Thereafter the police submitted a final report. But the Magistrate by his order dated 16-2-1987 did not accept that final report and summoned the applicant under Sections 498A, 323, 504 and 506 IPC. It is against this order that the applicant has come to this Court and has prayed that criminal proceedings be quashed.

Firstly arguments have been addressed that the Criminal complaint lodged is false. In view of cases of J.P. Sharma Vs. Vinod Kumar Jain and Others, and Pratibha Rani Vs. Suraj Kumar and Another, , this Court has not to examine whether the allegations made by the complainant are false or true. At this stage we will have to proceed on the basis of allegations made in the FIR and these allegations do disclose commission of an offence. In view of Khacheru Singh Vs. State of Uttar Pradesh and Another, , an application u/s 482 against summoning order can hardly be entertained.

It is said that one complaint filed by the complainant was dismissed but that complaint or order passed on it is not on record, moreover dismissal u/s 203 may not be a judgment and it may not bar a trial on merits commenced on the basis of a police report.

Then it has been argued that in view of Section 198A of the Code of Criminal Procedure, the Court cannot take cognizance except on a police report of facts which constitutes such offence or upon a complaint made by the person aggrieved. According to the applicant in this case, cognizance has not been taken on a police report. It has further been argued that when cognizance has not been taken on a police report then procedure for complaint should have been followed. In the case of H.S. Bains v. State 1980 ACR 423 : 1980 AWC 619 following observations were made:

Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion.

In the case before us, the order of the Magistrate is before us. The learned Magistrate considered the police report and he did not agree that the case be thrown out merely because there were no independent witnesses, because in such cases independent witnesses are not available. Moreover on the record, there was available old correspondence, from which Magistrate drew support. So the position is that the Magistrate did not agree with the conclusion of the police but it was on the basis of police report and material available on it that he took cognizance. So it will have to be said that cognizance was taken on police report, therefore, Section 198A Code of Criminal Procedure is no bar and procedure of complaint case need not be followed.

Lastly it was also pointed out on behalf of the applicant that the husband had filed a suit for restitution of conjugal rights against the wife, who filed the First Information Report and according to the learned Counsel for the applicant the matter of cruelty would be gone into in that case of restitution of conjugal rights and in view of Karam Chand Ganga Prasad and Another Vs. Union of India (UOI) and Others, the decision of the civil Court should be binding. It does not appear that a criminal prosecution can be thrown out because of his suit of restitution of conjugal rights where a defence of cruelty may be taken. In substance the civil and criminal case are different. So this application has no force and it will have to be dismissed.

This application u/s 482 Code of Criminal Procedure is accordingly dismissed.