Prasad vs Circle Inspector of Police

S. Marimuthu, J.—This petition has been filed appealing this Court to exercise its authority and command to judicially review the order of the Judicial First Class Magistrate, Mavelikkara dated 10.1.1997 and also the complaint filed by the 2nd respondent and to quash both of them. Annexure A is a xerox copy of the complaint (drafted in Malayalam) filed by the 2nd respondent before the Magistrate and Annexure B is the English translation of the same. The order of the Magistrate dated 10.1.1997 is as follows:

"Complainant present, forward to the S.I. of the Police, Nooranad u/s 156(3) of the Code of Criminal Procedure."

The grievance of the petitioners would be that Annexure A complaint has been filed by the 2nd respondent u/s 498, IPC before the Magistrate which is a non-cognizable one (when it is filed before the Magistrate) and therefore, the Magistrate is not empowered to forward the same to the police for investigation and report u/s 156(3), Cr.P.C. Section 198-A of the Code of Criminal Procedure provides that a complaint can be filed either before the police or before the Magistrate by the aggrieved party and her relations specifically mentioned in the section. In such a case also, the Magistrate can take it only as a non-cognizable offence and in case the Magistrate deems it fit to be forwarded to the police for investigation and report, that ought to have been sent by the Magistrate only u/s 202, Cr.P.C. and'' not u/s 156(3), Cr.P.C. So on these above two grounds, learned Counsel for the petitioners, Mr. Babu S. Nair, is attacking the order passed by the Magistrate for forwarding the complaint u/s 156(3), Cr.P.C.

Mr. S.U. Nazar, learned Public Prosecutor, on the other hand, submitted that an offence u/s 498-A becomes cognizable when it is lodged before the police by the aggrieved party and those who have been specifically mentioned in Column No. 4 of the First Schedule annexed to the Code of Criminal Procedure and in case the complaint is lodged by anyone other than the persons mentioned in the above said Column No. 4 of the Schedule before the police, that can be construed as a non-cognizable offence. Such a specific requirement in column 4 of the Schedule (complaint before police) cannot take away or oust the jurisdiction of the Magistrate while the complaint is filed before him, in taking it as a cognizable one. It is also his submission that the Supreme Court clearly held in a judgment that when a complaint is filed before the Magistrate, the Magistrate is empowered to forward it to the police for investigation and report and in such a case, the police on receipt of the complaint can register a case and investigate. In that circumstance, the complaint forwarded by the Magistrate has to be deemed as complaint as defined u/s 2(d), Cr.P.C. In the instant case on hand, the Magistrate on receipt of the complaint by the victim, had forwarded the same to the police. The police on receipt of the complaint has registered a case as Crime No. 19 of 1997 of Nooranad Police Station. And on the complaint forwarded by the Magistrate when a case is registered by the police, it can be determined that the statutory requirements of Column No. 4 of the Schedule (in lodging the complaint before the police by the aggrieved party and other relations) have been fulfilled and there is no violation of any statutory law.

On account of the above rival contentions of both, Counsel for the petitioners and learned Public Prosecutor, now, the legal position has to be scrutinised hereunder. Column 4 of the first Schedule appended to the Code of Criminal Procedure in respect of Section 498-A, IPC is as follows :

"498-A. Cognizable-If information relating to the commission of the offence is given to an officer in-charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf."

Chapter XX of the Indian Penal Code deals with the offences relating to marriage from Sections 493 - 498. The procedural law in the Code of Criminal Procedure in respect of Chapter XX of the IPC is Section 198. A Section 198 in Crl.P.C. is a procedural one relating to Section 498-A of Chapter XX-A in IPC. In respect of the offences coming under Chapter XX of IPC and the rule of procedure u/s 198 of the Code of Criminal Procedure, Supreme Court has elaborately discussed and laid down important principles in a case reported in State of Orissa v. Sharat Chandra Sahu reported in, AIR 1997 SC 1 In paragraph 9 of that judgment, the view taken by the Supreme Court is that Section 498-A is a cognizable offence.

Column No. 4 of the Schedule of the Code of Criminal Procedure, extracted above would indicate under what circumstance an offence u/s 498-A, IPC in a complaint filed before police becomes cognizable. A common man by the above wordings employed in Column No. 4 of the Schedule, can understand that in case the complaint is lodged by any one other than the persons specifically mentioned in Column No. 4 before the police, it is a non-cognizable one. When the complaint is filed by "anyone of those mentioned in Column No. 4 of the Schedule", the first limb of Section 198-A, Cr.P.C. is attracted. Second limb of Section198-A, Cr.P.C. comes into action when the complaint is filed before the Magistrate by the aggrieved party and others specifically mentioned therein. Here, one thing to be borne in mind is that like column No. 4 of the schedule (while filing a complaint before the police) in the 2nd part of Section 198-A also, there is specification or classification as to the complaint before the Magistrate. Now we must think over as to the reason of legally authorising a particular section of people to espouse the cause either before the police or before the Magistrate. The reason is because of the offence u/s 498-A touching tine divine relationship between husband and wife and that has to be investigated and determined within a well-defined ambit of codified rule of law. As the learned Public Prosecutor pointed out, it is not the statutory provision in Schedule or anything in tlie Code that when the complaint is filed before the Magistrate under the 2nd Part of Section 198-A, Cr.P.C. it is only a non-cognizable offence. Therefore, the above statutory provisions are conspicuously clear that the Magistrate is empowered to take a complaint on file as cognizable one when it is filed u/s 498-A, IPC either by the aggrieved party or her blood relations mentioned in Section 198-A, Cr.P.C. In the instant case before me, admittedly, the complaint was filed by the aggrieved lady before tlie Magistrate. The Magistrate has forwarded the same u/s 156(3), Cr.P.C. to the police for investigation and report. The action of,the Magistrate in asking for the report from the police u/s 156(3) is well within his authority canferred under the procedure of the Code of Criminal Procedure. Since the Magistrate had taken the complaint on his file, it is one coming under the category of cognizable offences. Therefore, he can rightly forward it u/s 156(3), Cr.P.C. Here, as adverted to above, the police, on receipt of the complaint, has registered a case. The police in the above circumstances need not seek the permission or sanction of the Court u/s 155(2), Cr.P.C. which is relating to non-cognizable offence. When this is the real state of affairs, factually and legally, there is no necessity for the Magistrate to forward the complaint u/s 202, Cr.P.C. as argued by the learned Counsel for tlie petitioners. As pointed out above, the learned Public Prosecutor drew my attention to the ratio of the judgment of the Supreme Court in Madhu Bala Vs. Suresh Kumar and others, . The principle laid down there is that when a complaint has been forwarded by the Magistrate to the police for investigation and report, the police is empowered to register the case on the complaint forwarded by the Magistrate deeming it as a complaint as defined u/s 2(d) of the Code of Criminal Procedure. That principle, in one way or other, applies to the present case on hand. In this context, it is also important to observe that the police is not more empowered or vested with more power in the Code than the Magistrate in the matter of lodging a complaint, enquiring the same, etc. Therefore, it cannot be founded or determined on account of Column No. 4 of the First Schedule of Cr.P.C. that the complaint filed before a Magistrate u/s 498-A of IPC becomes non-cognizable. If any view is arrived at that the complaint filed u/s 498-A before a Magistrate is non-cognizable, it will reflect that police is more empowered than the Magistrate within the bounds of Cr.P.C. It is not spirit and significance of the Code. Nor could it be the intention of the law-makers. Therefore, I am unable to appreciate the submission of the learned Counsel for the petitioners that since there is no indication in Column No. 4 of the Schedule, a complaint on being filed before the Magistrate, becomes non-cognizable. On account of my discussions detailed above, this petition necessarily has to be dismissed u/s 482, Cr.P.C. In the result, that petition stands dismissed.

As the factual and legal aspects in this case are similar to those in Crl. M.C. Nos. 823 of 1997 and 981 of 1997, applying the principles laid down in this Crl. M.C. No. 465 of l997, those two Crl. M.C. Nos. 823 of 1997 and 981 of 1997, I am dismissing today, 13.7.1998 by separate orders.