Capt. Rajinder Tiwari vs The State (Nct Of Delhi) [Along ...
2006 Latest Caselaw 2258 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. These two revision petitions are taken up together as they arise out of the same order on charge and charges framed by the learned Metropolitan Magistrate on 20.10.2006.

2. The learned Counsel appearing on behalf of the petitioners straightaway submitted that he is not pressing these petitions insofar as the charges under 417/406/506/34 IPC and Section 4 of the Dowry Prohibition Act, 1961 are concerned. It is, therefore, clear that these petitions are being disposed of merely on the basis of arguments advanced in respect of the offences under Sections 493/495/496/498A/34 IPC.

3. The learned Counsel for the petitioners divided his arguments into two compartments. First of all, he made submissions with regard to the charges framed under Sections 493/495/496 IPC. Secondly, he made submissions with regard to the offence under Section 498A. Insofar as the first category of offences are concerned, they fall under Chapter XX of the IPC and, he submitted, Section 198 of Cr.P.C. stipulates that cognizance of such offences can only be taken on the basis of a complaint by an aggrieved person. He submitted that in the present case, the Magistrate had proceeded on the basis of a police report and took cognizance of these offences, which the Magistrate was not empowered to do. The learned Counsel for the petitioners further submitted that, in any event, a complaint has been filed with regard to these offences by the complainant and that is also pending before the same Magistrate.

4. With regard to the offence under Section 498A IPC, it has been submitted by the learned Counsel for the petitioners that Rajinder Tiwari (one of the petitioners) was not legally married with the complainant inasmuch as the marriage was a nullity on account of the pendency of divorce proceedings in respect of his first marriage. He submits that this is an admitted position as would be apparent from a reading of the order dated 20.10.2006 itself wherein it is recorded that the complainant's counsel had vehemently opposed the contention with regard to the charge under Section 498A IPC not being made out on the ground that "even though the marriage is not lawful but the accused cannot escape on this ground alone" and the said counsel placed reliance on the judgment of the Supreme Court in the case of Reema Aggarwal v. Anupam . So, the issue here is whether Rajinder Tiwari, without being a "husband" to the complainant, could be charged of an offence under Section 498A IPC. An identical issue has arisen in the case of Mohit Gupta and Ors. v. State of Government of NCT of Delhi and Anr. 2006 (3) JCC 1923 wherein the decision of the Supreme Court in the case of Reema Aggarwal (surpa) was considered. However, this Court held that the Larger Bench decision of the Supreme Court in Shivcharan Lal Verma v. State of MP 2002 (2) Crimes 177 (SC) would be applicable and, as per that decision, unless the petitioner fell within the definition of "husband" on the basis of a valid marriage, he could not be prosecuted under Section 498A IPC and the same would be the case for his relatives. Therefore, applying the ratio of Mohit Gupta (supra), which, in turn, applied the binding ratio of Shivcharan Lal Verma (supra), it is abundantly clear that a charge under Section 498A IPC cannot be framed in this case against any of the petitioners.

5. Insofar as the first point taken by the counsel for the petitioners is concerned, I find that the same has merit. It is clear that Section 198 of the Code of Criminal Procedure, 1973 imposes a bar on the courts from taking cognizance of offences falling under Chapter XX of the IPC. The bar is that cognizance of such offences can be taken only on the basis of a complaint filed by an aggrieved person. Section 198 of the Code reads as under:

198. Prosecution for offences against marriage.-(1) 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 person 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, 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 authorisation 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 authorisation and complying with the provisions of Sub-section (4), and any document purporting to be a 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.

A reading of the aforesaid Section makes it more than clear that no court can take cognizance of an offence punishable under Chapter XX of the IPC except on a complaint made by some person aggrieved by the offence. It may also be noted that Section 498A of IPC falls under Chapter XX-A. However, because of the restriction contained in Section 198, the legislature in its wisdom thought it proper to make things clear by inserting Section 198A in the Code. Section 198A reads as under:

198A. Prosecution of offences under Section 498A of the Indian Penal Code.-No Court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister 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.

6. These provisions make it clear that for offences falling under Chapter XX IPC, the court can only take cognizance upon a complaint by an aggrieved person, whereas the offences falling under Chapter XX-A, which includes Section 498A IPC, cognizance can be taken both on the basis of a police report or on the basis of a complaint by an aggrieved person. Thus, insofar as the offences under Chapter XX are concerned, the court can take cognizance only on the basis of a complaint by some aggrieved person.

7. In the present case, charges have been framed under Section 493/495/496 IPC all of which fall under Chapter XX of IPC. These charges have been framed on the basis of the cognizance taken by the court on the basis of the police report as would be clear from the order dated 17.10.2001 passed by the learned Metropolitan Magistrate. The said order reads as under:

17.10.01 Present: APP for the State.

Fresh Challan presented today.

If he checked and registered.

I have gone through the challan Under Section 173 Cr.P.C. and statements and documents sent Along with it.

Cognizance of the offences Under Section 417/406/493/494/498A/496/34 IPC and 4 & 5 Dowry Prohibition Act taken.

Accused shown in Column No. 4 is/are on bail.

Issue summons to the accused and notice to the surety.

Put up on 25.06.2002 for further proceedings.

Sd/-M.M.

8. It is clear that the court had committed an error in taking cognizance of the offences falling under Chapter XX IPC on the basis of a police report. Therefore, the charges framed on the said basis cannot be sustained and the impugned order to that extent requires to be set aside. This, of course, does not mean that the complaint which has been independently filed by the complainant for offences under Chapter XX IPC cannot be continued. I am informed by the counsel for the parties that formal cognizance has not been taken on that complaint as yet. There is no bar on the court taking formal cognizance on that complaint and thereafter proceeding in accordance with law. The court may, if it thinks fit, even try the complaint case as well as the present case together. That is a course which is left open for the court to take. The court requires to pass an order of taking cognizance formally if it so feels and since the trial has already been clubbed together, the same may be continued by the trial court.

9. As already indicated above, insofar as the charge under Sections 498A IPC is concerned, that issue is no longer open for debate. The same has been decided by this Court in the case of Mohit Gupta & Others (supra) applying the ratio of the Supreme Court decision in the case of Shivcharan Lal Verma (supra). Since the marriage between Rajinder and Meenakshi was a nullity in view of the pendency of Rajender's divorce proceedings qua his first wife, the offence under Section 498A, which is specific to "husband", would not be maintainable. Therefore, the impugned order needs to be corrected on this ground also.

10. In the circumstances indicated above, these petitions are partly allowed. The charges framed under Section 498A are dropped against all the petitioners. So also, the charges framed under Section 493, 495 and 496 IPC . However, the complaint case with regard to these very offences, i.e., Section 493/495 and 496 IPC may be continued by the trial court after taking cognizance of these offences on the basis of the said complaint. And, if that is done, the trial court may continue to proceed with this case and the complaint case together. In respect of the other charges, i.e., under Sections 417/406/506/34 IPC and the charge under Section 4 of the Dowry Prohibition Act, 1961, the impugned order does not require any interference as the counsel for the petitioners had initially submitted that he was not pressing the petition insofar as these offences are concerned.

With these directions, these revision petitions are partly allowed.