The Hyderabad High Court has ruled that an investigating officer can investigate cognizable offences without prior permission of the magistrate concerned if the crime consists of both cognizable and non-cognizable offences.
Justice T Sunil Chowdary passed this order on petitions filed by one Miriyala Divya and others seeking to quash the proceedings against them. In all, nine persons accused in a criminal case on the file of VII additional sessions judge (FTC), Guntur have filed these petitions.
One Eesa Agnes married the accused (A1) against the will and wish of her parents. She died in August 2008. In November her mother lodged a complaint with the Mangalagiri police that A1 married A2 in July 2008 during the subsistence of valid marriage of A1 with her daughter. It was further alleged that in October that year A1 obtained second marriage certificate with an intention to screen away the evidence in relation to the marriage of A1 with A2. It was alleged Agnes was subjected to cruelty for additional dowry. Thereupon, the SHO registered a case under Sections 498-A, 494, 420 and 201 read with 34 of IPC against the petitioners.
The investigating officer filed a chargesheet and the additional judicial magistrate of I Class, Mangalagiri took cognizance of the offences against the petitioners and numbered the charge-sheet. Subsequently, the matter was transferred to the VII additional sessions Judge court (FTC), Guntur as per the orders of the District Court, Guntur.
The predominant contention of the petitioners is two-fold: 1) The magistrate has taken cognizance of the offences against the petitioners under Sections 494 and 498-A of IPC in violation of Section 198 Cr.PC in general and Section 198 (1) (c) in particular 2) The allegations made in the charge-sheet do not constitute the offences alleged to have been committed by the petitioners under Sections 494 and 498-A of IPC.
On the other hand, the complainant said the trial court had not committed any illegality or irregularity while taking cognizance of the offences against the petitioners in view of the AP State Amendment to Section 494 of IPC. She said the allegations made in the charge-sheet were prima facie sufficient to proceed further against the petitioners.
The public prosecutor said it was not a fit case to quash the proceedings at that stage viewed from the factual and legal angles. The present petition was liable to be dismissed in view of the availability of alternative remedy.
Justice Chowdary said Section 198 of CrPC clearly demonstrates that the court can take cognizance of offences enumerated under Chapter XX of IPC basing on the complaint made by the aggrieved person. As per Section 198 (1) (c) of CrPC, when a wife is aggrieved of the offence under Section 494 or 495 of IPC, the complaint may be made by herself, or on her behalf by her father, mother, brother, sister, son or daughter, or by her father’s or mother’s brother or sister.
The judge observed that it was not in dispute that the mother of the deceased lodged the complaint to the police in November 2008. By no stretch of imagination can it be presumed that the de facto complainant submitted the report to the police with the consent of the deceased as she had died in August. The gist of the allegations made in the complaint is that the petitioners have played some role in performance of marriage between A1 and A2 during the subsistence of the valid marriage between A1 and the deceased.
Section 2 (c) and Section 156 of CrPC clearly manifest that investigating officer can investigate cognizable offences with prior permission of the magistrate concerned. A perusal of Section 155 (4) of CrPC clearly manifests that if a crime consists of both cognizable and non-cognizable offences, non-cognizable offence can be treated as cognizable offence, because of the legal fiction enshrined therein.
The judge found that in the instant case, the crime consists of both cognizable and non-cognizable offences. The court has to take into consideration this aspect also while appreciating the contention of the petitioners,
“Having regard to the facts and circumstances of the case and also the various case laws cited supra, I am unable to accede to the contention of the petitioners that the trial court committed error while taking cognizance of offences against the petitioners under Sections 494 and 498-A IPC basing on the police report filed under Section 173 (2) of CrPC”, the judge observed.
While dismissing the petitions, he directed the petitioners to appear in the trial court when their presence was required.
