Ashok Kumar Mohanty Vs. State of Orissa - Court Judgment

Excerpt:
criminal - cognizance - quashing of - sections 198 and 482 of criminal procedure code, 1973(cr.p.c.), sections 34, 109, 498-a and 506 of indian penal code, 1860(ipc) and section 4 of dowry prohibition act, 1961 - initially criminal case lodged under section 498a/494/506/34 of ipc and also under section 4 of act of 1961 against main accused persons - no specific complaints were lodged against present petitioner - only allegation against petitioner was that marriage of victim took place due to mediation of petitioner - trial court apart from taking cognizance against main accused persons under sections 498a/506/34 together with offence under section 494 of ipc and under section 4 of act of 1961 also took cognizance against petitioner under section 494/109 of ipc - hence, present petition.....orderp.k. tripathy, j.1. heard learned counsel for the petitioner and learned standing counsel and this application under section 482, crpc. is disposed of at the stage of admission on consent of both the parties.2. petitioner is one of the accused persons in g.r. case no. 390 of 2005 of the court of s.d.j.m., bhadrak. charge sheet was filed against seven accused persons for the offence under section 498-a/494/506/34, i.p.c. and section 4 of the dowry prohibition act (in short 'd.p. act') on the basis of f.i.r. lodged by the father of one haraypriya sahu being described as the wife of accused ashok kumar sahoo. it is alleged in the f.i.r. that there was torture and ill-treatment on her by the husband and the in-laws constituting the offence under section 498-a/34, i.p.c. it is further.....

Judgment:
ORDER

P.K. Tripathy, J.

1. Heard learned Counsel for the petitioner and learned Standing Counsel and this application under Section 482, CrPC. is disposed of at the stage of admission on consent of both the parties.

2. Petitioner is one of the accused persons in G.R. Case No. 390 of 2005 of the Court of S.D.J.M., Bhadrak. Charge sheet was filed against seven accused persons for the offence under Section 498-A/494/506/34, I.P.C. and Section 4 of the Dowry Prohibition Act (in short 'D.P. Act') on the basis of F.I.R. lodged by the father of one Haraypriya Sahu being described as the wife of accused Ashok Kumar Sahoo. It is alleged in the F.I.R. that there was torture and ill-treatment on her by the husband and the in-laws constituting the offence under Section 498-A/34, I.P.C. It is further alleged that with the mediation of the present petitioner, marriage of Ashok Kumar Sahoo was performed with accused Puspita Mallik constituting the offence under Section 494, J.P.C. and petitioner and the parents of that girl committed the offence under Section 494/34, I.P.C. and 494/109, I.P.C,

3. After submission of final form by the Investigating Agency, at the initial stage petitioner and accused Puspita Mallik appeared in the Court below and filed application not to take cognizance for the offence under Section 494/109, I.P.C. and to summon only the relevant accused persons with respect to the offence under Section 498-A/506/34, I.P.C, read with Section 4 of the D.P. Act. Learned S.D.J.M. considered and rejected that application as per the impugned order passed on 8.6.2005 in G.R. Case No. 390 of 2005 and he took cognizance of offence under Section 498-A/506/34, I.P.C, together with offences under Section 494, I.P.C. and Section 4 of the D.P. Act against accused Ashok, under Section 498-A/506/34, I.P.C., Section 494/109, I.P.C. and Section 4, D.P. Act against accused Deepak, Menaka, Swarnalata and Itishree (the parents, brother and sisters- of Ashok) and under Section 494/109, I.P.C. against accused Ashok Mohanty & Puspita Mallik. The order is under challenge.

4. Learned Counsel for the petitioner argues that on the face of the statutory provision in Section 198, Cr.P.C. together with definition of the term 'Complaint' as provided in Section 2(d), Cr.P.C. learned S.D.J.M. acted illegally in taking cognizance of the offence under Section 494/109, I.P.C. and issuing process under Section 204, Cr.P.C. against the petitioner.

5. Learned Standing Counsel referring to the ratio in the case of State of U.P. v. Suresh Chandra Srivastava and Ors. etc. etc. : 1984CriLJ926 argues that provision in Sections 195 and 198, Cr.P.C. stand at par with respect to sine qua nonfor taking cognizance on the basis of complaint. He further argues that in the reported case, on the F.I.R. lodged by the Registrar, Allahabad High Court when Police conducted investigation and submitted charge sheet, the apex Court maintained that proceeding notwithstanding absence of a complaint as contemplated under Section 195(1), Cr.P.C. and, therefore, in this case the order of cognizance is not illegal.

6. The statutory provision in Section 198, Cr.P.C. reads as hereunder:

198. Prosecution for offences against marriage- (I) 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:

Provided that-

(a) where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other persons may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf;

(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 ('or, with the leave of the Court, by any other person related to her by blood, marriage or adoption).

(2) For the purpose of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.(3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorization referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorization and complying with the provisions of Sub-section (4), and any document purporting to be certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

7. The term 'complaint' has been defined in the following manner:

2. Definitions - In this Code, unless the context otherwise requires,-(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.

8. Language in Section 195 also provides a similar provision of filing complaint as a pre-requisite for taking cognizance. Complaint of offences covered by Section 198, Cr.P.C. is to be made by a person aggrieved by the offence or persons competent under that provision to lodge complaint on behalf of the person aggrieved and according to Section 195, Cr.P.C. complaint is to be made by the concerned public servant (Section 195(1)(a)) or by the Court concerned as provided in Section 195(1)(b). When the statutory position stands thus, in the cited case, the allegation against the accused persons was relating to tampering with the case records, removal of stamps and manipulating the records and registers constituting various other offences under Indian Penal Code including the offence covered by Section 195(b)(i). Therefore, apex Court observed that 'The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Code.' Their Lordships further observed that 'The High Court was fully justified in quashing the proceedings against the accused as far as offences under Section 467, 471 and 120B, I.P.C. were concerned, not because they were covered by Section 195 of the Code but because allegations contained in the complaint did not constitute these offences. The High Court was further fully justified in directing that other offences mentioned above did not require a complaint under Section 195 and would have to be tried.'

It is thus clear that the apex Court does not say to bye-pass the statutory hurdle as provided in Section 195, Cr.P.C.

9. Be that as it may allegation in the F.I.R. does not make the offence under Section 494, I.P.C. integral part of the offences under Section 498-A, 506, I.P.C. and Section 4 of the D.P. Act. Under such circumstance, cognizance of the offence under Section 494/109, I.P.C. is not sustainable in the absence of a complaint. Learned S.D.J.M. without perusing and understanding the relevant provision of law has illegally passed order of cognizance under Section 494/109, I.P.C. and directed to issue process to the petitioner.

10. Under such circumstance, the Court quash the cognizance of the offence under Section 494/109, I.P.C. and process issued against the petitioner. The criminal proceeding may continue with respect to offences not covered by Section 198, Cr.P.C.

The CRLMC is accordingly allowed.