Holding

A case involving both cognizable and non‑cognizable offences is deemed cognizable under Section 155(4) CrPC, permitting police investigation of all offences and allowing the magistrate to take cognizance even without a personal complaint by the aggrieved wife.

Summary

The wife lodged a written complaint with the Women’s Commission alleging that her husband had contracted a second marriage (offence under IPC 494) and was harassing her for dowry (offence under IPC 498A). The Commission forwarded the complaint to the police, who investigated both offences and filed a charge‑sheet; the Sub‑Divisional Magistrate thereafter framed charges under both sections. The husband filed a petition under CrPC 482 seeking to quash the proceedings, and the High Court dismissed the charge under 494 on the ground that only the aggrieved wife could make a complaint under Section 198(1) of the CrPC. On appeal, the Supreme Court held that when a case involves both cognizable and non‑cognizable offences, Section 155(4) CrPC deems the entire case cognizable, allowing the police to investigate and the magistrate to take cognizance even without a personal complaint by the wife. Consequently, the High Court’s order quashing the charge under 494 was set aside and the magistrate was directed to proceed with the trial. The appeal was allowed.

Issues considered

Whether a magistrate can take cognizance of a non‑cognizable offence (IPC 494) when the complaint is filed by a third party such as the Women’s Commission.
Whether the police may investigate both cognizable (IPC 498A) and non‑cognizable (IPC 494) offences arising from the same set of facts under Section 155(4) of the CrPC.

Legislation cited

Code of Criminal Procedures. 155(4), s. 198(1), s. 482
Indian Penal Code, 1860s. 494, s. 498A

Subjects

bigamydowry harassmentnon‑cognizable offencecognizable offencepolice investigationSection 155(4) CrPCSection 198 CrPCwomen's commissioncriminal procedurecharge‑sheetquashing petition

Judgment

A STATE OF ORISSA
v.
SHARAT CHANDRA SAHU AND ANR.

OCTOBER 8, 1996

B [KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

Indian Penal Code, 1860:

Ss. 494 and 498A--Bigamy and dowry harassment-Women's Commis-
C sion sending the complaint of wife to police-Case against the husband for
offences under ss. 494 and 498A registered and Charge-Sheet filed-Sub
Divisional Magistrate framed charges on a petition u/s. 482 Cr.P.C. by the
husband, High Cowt quashed the charge u/s. 494 /PC holding that since the
wife had r.,ot herself personally filed the complaint u/s. 494 its cognizance
D could not have been taken by the Magistrate-Held, High Court erred in
quashing the charge-Judgment of High Court to that exte.nt is set
aside-Magistrate would proceed with the case.

Code of Criminal Procedure, 1973:

E Ss. 155(4) and 198(1)-lnvestigation of cognizable and non-cognizable
offence~~Women's Commission sending to police a complaint of the wife
against her husband for offences u/ss. 494 and 498A /PC-Police investigated
into the alleged offences and filed charge-sheet under both the courts-Held,
if the facts reported to the police disclose both cognizable and non-cognizable
offences the police would be acting within the scope of its authority in
F investigating both the offences as the legal fiction enacted in sub-section (4)
of s.155 provides that even non-cognizable case shall, in that situation, be
treated as cognizable.

Preveen Chandra Mody v. State of M.P., AIR (1965) SC 1185, relied
G on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
768 of 1996.

From the Judgment and Order dated 3.5.95 of the Orissa High Court
H in Crl. M.C. No. 1169 of 1994.
304
STATE v. S.C. SAHU 305

Jana Kalyan Das for the Appellant. A
Satyapal Khushal Chand Pasi for the Respondents.

The following Order of the Court was delivered :

S. SAGHIR AHMAD, J. Respondent No.1 is the husband of respon- B
dent No.2 who made a complaint in writing to the Women's Commission
setting out therein that respondent No.1 had contracted a second marriage
and had thus committed an offence punishable under Section 494 LP.C. It
was also alleged that eversince the marriage with her, he had been making
demands for money being paid to him which amounted to her harassment
and constituted the offence punishable under Section 498A LP.C. for which C
respondent No.l was liable to be punished.

2. The Women's Commission sent the complaint to the police station
Where G.R. Case No.418 of 1993 was registered against respondent No.1.
The police investigated the case and filed a charge-sheet in the court of D
Sub-Divisional Judicial Magistrate, Anandpur, who, after perusal of the
charge-sheet, framed charges against respondent No.1 under Section 498A
as also under Section 494 IPC.

3. Aggrieved by the framing of the charge by the Sub-Divisional
Judicial Magistrate, Anandpur, respondent No.1 filed a petition (Criminal E
Misc. Case No.1169/94) under Section 482 of the Code of Criminal Proce-
dure (for short, Code) in the Orissa High Court for quashing the proceed-
ings and the charges framed against him. The High Court by its impugned
Judgment dated 3.5.95 partly allowed the petition with the findings that
since respondent No.2 had not herself personally filed the complaint under
Section 494 LP.C., its cognizance could not have been taken by the F
Magistrate in view of the provisions contained in Section 198(1) of the
Code. Consequen_tly, the charge framed by the Magistrate under Section
494 l.P.C. was quashed but the charge under Section 498A I.P.C. was
maintained and the petition under Section 482, Criminal Procedure Code
to that extent was dismissed. G
4. It is this Judgment which has been challenged before us by the
State of Orissa. We have heard the learned counsel for the parties.

5. The Judgment of the High Court so far as it relates to the quashing
of the charge under Section 494 I.P.C., is wholly erroneous and is based H
306 SUPREME COURT REPORTS [1996] SUPP. 7 S.C.R.

A on complete ignorance of the relevant statutory provisions.

6. The· first Schedule appended to the Code indicates that the offence
under Section 494 I.P.C. is non-cognizable and bailable. It is thus obvious
that the police could not take cognizance of this offence and that a
complaint had to be filed before a Magistrate.
B
7. Relevant portion of Section 198 which deals with the prosecution
for Offences against Marriage provides as under :

"198. Prosecution for offences against marriage. (1) No Court shall
c take cognizance of an offence punishable under Chapter XX of
the Indian Penal Code (45of1860) except upon a complaint made
by some person aggrieved by the offence:

Provided that-

D (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 person may, with the leave of the Court, make a complaint
on his or her behalf;
E
(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
F person, some other person authorised by the husband in accord-
ance with the provisions of sub-section (4) may make a complaint
on his behalf ;

(c) Where the person aggrieved by an offence punishable under
[Secti01,1494 or section 495] of the Indian Penal Code (45 of .1860)
G is the wife, complaint may be made on her behalf by her father,
mother, 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.]

H (2) ............................................... .
STATE v. S.C. SAHU 307

(3) ················································ A

(4) ················································

(5) ················································

(6) .... ;......................................... .. B

(7) ................................................ "

.. 8. These provisions set out the prohibition for the Court from taking
cognizance of an offence punishable under Chapter XX of the Indian Penal C
Code. The cognizance, however, can be taken only if the complaint is made
by the person aggrieved by the offence. Clause (c) appended to the Proviso
to Sub-section (i) provides that where a person aggrieved is the wife, a
complaint maybe made on her behalf by her father, mother, brother, sister,
son or daughter or other relations mentioned therein who are related to
her by blood, marriage or adoption. D

9. The High Court relied upon the provisions contained in Clause (c)
and held that since the wife herself had not filed the complaint and
Women's Commission had complained to the police, the Sub Divisional
Judicial Magistrate, Anandpur could not legally take cognizance of the E
offence. In laying down this proposition, the High Court forgot that the
other offence namely, the offence under Section 498A I.P.C. was a cog-
nizable offence and the police was entitled to take cognizance of the
offence irrespective of the person who gave the first information to it. It is
provided in Section 155 as under:-
F
"155. Information as to non-cognizable cases and investigation of
such cases .- (1) When information is given to an officer in charge
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 G
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. H
308 SUPREME COURT REPORTS (1996] SUPP. 7 S.C.R.

A (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 in charge of a police station
may exercise in a cognizable case.

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

10. Sub-section (4) of this Section clearly provides that where the
case relates to two offences of which one is cognizable, the case shall be
C deemed to be a cognizable case notwithstanding that the other offence or
offences are non-cognizable.

11. Sub-section (4) creates a legal fiction and provides that although
a case may comprise of several offences of which some are cognizable and
others are not, it would not be open to the police to investigate the
D cognizable offences only and omit the non-cognizable offences. Since the
whole case (comprising of cognizable and non-cognizable offences) is to
be treated a cognizable, the police had~no option but to investigate the
whole of the case and to submit a charge-sheet in respect of all the
offences, cognizable or non-cognizable both, provided it is found by the
E police during investigation that the offences appear, prima facie, to have
been committed.

12. Sub-section (4) of Section 155 is a new provision introduced for
the first time in the Code in 1973. This was done to overcome the con-
troversy about investigation of non-cognizable offences by the police
F without the leave of the Magistrate. The statutory provision is specific,
precise and clear and there is no ambiguity in the language employed in
Sub-section (4). It is apparent that if the facts reported to the police
disclose both cognizable and non-cognizable offences, the police would be
acting within the scope of its authority in investigating both the offences as
G the legal fiction enacted in Sub-section (4) provides that even non-cog-
nizable case shall, in that situation, be treated as cognizable.

13. This Court in Preveen Chandra Mody v. State of M.P., AIR (1965)
SC 1185 has held that while investigating a cognizable offence and present-
ing a charge-sheet for it, the police are not debarred from investigating any
H non-cognizable offence arising out of the same facts and including them in
STATEv.S.C.SAHU 309
the charge-sheet. A
14. The High Court was thus clearly in error in quashing the charge
under Section 494 l.P.C. on the ground that the Trial Court could not take
cognizance of that offence unless a complaint was filed personally by the
wife or any other near relation contemplated by Clause_(c) of the Proviso
to Section 198(1). B
15. The Judgment of the High Court being erroneous has to be set
aside. The appeal is consequently allowed. The Judgment and order dated
3rd May, 1995 passed by the Orissa High Court in so far as it purports to
quash the charge under Section 494 I.P.C. and the proceedings relating
thereto is set aside with the direction to the Magistrate to proceed with the C
case and dispose it of expeditiously.

R.P. Appeal allowed.