IPC 377 – unnatural offences was struck down as Unconstitutional by Supreme Court.
Citations: [(2018) 10 SCC 1], [2018 SCC OnLine SC 1350],
Indiankanoon.org or Casemine link: https://indiankanoon.org/doc/168671544/ or https://www.casemine.com/judgement/in/5b965a9618a6816e6598fd54
Justice Dipak Misra states that Magistrate has to be alive about the allegation brought to him via Non-cognizable case by Police.
From Paras 26 and 27,
26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
From Para 30,
30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind.
Citations: [AIR 2015 SC 1758], [2015 (3) RLW 2404 (SC)], [2015(3) PLJR 78(SC)], [2015 SCL SC 130 472], [2015 AIOL 3152], [2015 CRIMES SC 2 179], [2015 CRIMES SC 2 209], [2015 CRLJ SC 2396], [2015 JCC SC 2 974], [2015 JT 5 203], [2015 SCALE 4 120], [2015 SCC 6 287], [2015 SLT 3 431], [2015 SUPREME 3 152], [2015 SCC ONLINE SC 272], [2015 CTC 3 103], [2015 KLJ 2 491], [2015 KERLT 2 451], [2015 SCC CRI 4 153], [2015 SCC CIV 3 294]
Indiankanoon.org link: https://indiankanoon.org/doc/163299097/
Casemine link: https://www.casemine.com/judgement/in/5790b242e561097e45a4e25a
The Index for Defamation Judgments is here. Index of Judgments under Sec 156(3) Cr.P.C. are here.
Honorabe CJI Justice S.A. Bobde (as he is called) has observed this to be a Mala Fide Untenable Maliciously Instituted Case Solely Intended to Harass appellants.
Citations: 2018 SCC Online SC 2447, 2019 (1) PLJR (SC) 215
Indiankanoon.org link: https://indiankanoon.org/doc/14567786/
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
In this judgment, Supreme Court held that, Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned.
In the para 12,
12. In view thereof, if any person has forged in a letter under the name of the Samithi and forged the signature of Shri M.A. Khan, M.P., the matter being of grave nature requires investigation and, in view of above, we cannot find fault with the action initiated against Umesh Kumar, appellant. Once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law. However, before the charges could be framed, Umesh Kumar, appellant, approached the High Court under Section 482 Cr.P.C. for quashing of the charge sheet. The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial. (Vide: Pepsi Food Ltd. & Anr. v. Special Judicial Magistrate & Ors., AIR 1998 SC 128; Ashok Chaturvedi & Ors. v. Shitulh Chanchani & Anr. AIR 1998 SC 2796; G. Sagar Suri & Anr. v. State of U.P. & Ors., AIR 2000 SC 754; and Padal Venkata Rama Reddy @ Ramu v. Kovvuri Satyanarayana Reddy & Ors., (2011) 12 SCC 437)
Citations: [JT 2013 (12) SC 213], [2014 ALL SCR 661], [2013 AD SC 9 581], [2014 AIR SC 1106], [2014 AJR 1 350], [2014 ALD CRI 1 304], [2014 ALLCC 84 850], [2014 ALT CRL AP 1 479], [2013 JLJR 4 151], [2013 KLJ 4 334], [2013 PLJR 4 284], [2015 RLW SC 1 391], [2013 SCALE 11 28], [2013 SCC 10 591], [2014 SCC L&S 2 237], [2014 SCJ 2 209], [2013 UC 3 1918], [2014 SCC CRI 1 338], [2013 SCC ONLINE SC 809], [2013 AIC 130 53], [2013 SUPREME 6 323], [2013 AIOL 584], [2013 AIR SC 6062], [2013 SLT 7 656], [2013 AIR SCW 6062]
Other Sources:
https://indiankanoon.org/doc/194914590/
https://www.casemine.com/judgement/in/5609af3fe4b0149711415ef0
In this judgment, Supreme Court has held that, there is no bar to pursue Quash at High Court under sec 482 CrPC, even when a Discharge was pending in the Trial Court under sec 239 CrPC or 245 CrPC.
It was submitted by Mr. Lalit, learned counsel for the second respondent, that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, High Court Cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., [1998] 5 SCC 749 and Ashok Chaturvedi & Ors. v. Shitul H. Chanchani & Anr., [1998] 7 SCC 698, wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
Citations: 2000 C Cr. LR(SC) 136 : JT 2000(1) SC 360, (2000)2 SCC 636, J.T. 2000 Vol. 1 page 126
Indiankanoon.org link: https://indiankanoon.org/doc/1699144/
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
Citations:
Indiankanoon.org link:
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
Citations:
Indiankanoon.org link:
Apex Court had passed similar judgment against AP High Court here.
Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in
Landmark Judgment to screw the perpetrators of 494 and 495 IPC Bigamy offences. This is specifically helpful to those who have cases in the State of Andhra Pradesh where these two crimes are made Cognizable and Non-bailable, due to a State amendment in 1992 whereas these are Non-cognizable and Bailable in the rest of the States in India.
13. In this regard, it would be, relevant to notice the provisions of Article 246 of the Constitution. Article 246 deals with subject matter of laws made by the Parliament and by the legislatures of State. Clause (1) of Article 246 inter alia provides that notwithstanding anything contained in Clauses (2) and (3) of Article 246, the Parliament has exclusive power to make laws with respect to any of the maters enumerated in List 1 in the Seventh Schedule. Sub-Clause 2 of the said Article provides that notwithstanding anything in Clause (3), Parliament and subject to Clause (1), the legislature of any State also have power to make laws with respect to any of the matters enumerated in List 3 in the Seventh Schedule, whereas, Clause (3) of Article 246 amongst other things provides that subject to Clauses (1) and (2), the legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List 2 in the Seventh Schedule. Entry 2 in List 3 i.e. Concurrent List in the Seventh Schedule mentions “Criminal Procedure, including in matters included in the Code of “Criminal procedure, at the commencement of this Constitution”. Thus there is no manner of doubt that Parliament and subject to Clause (1), the legislature of any State also has power to make laws with respect to Code of Criminal Procedure. Section 2(c) of the Code of Criminal Procedure, 1973 defines the phrase “Cognizable Offence” to mean an offence for which and “Cognizable Case” means a case in which, a Police Officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant. Part I of the First Schedule to the Code of Criminal Procedure, 1973 relating to offences under the Indian Penal Code inter alia mentions that Section 494 and 495 are non-cognizable. Section 154 of the Criminal Procedure Code relates to information in cognizable cases and provides inter alia that every information relating to the commission of a cognizable offence, if given orally to an Officer in charge of a Police Station, shall be reduced to writing by him and be read over to the informant. Section 156 of the Code provides that any Officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over a local area within the limits of such station would have power to enquire into or try under provisions of Chapter XIII of Criminal Procedure Code. As Sections 494 and 495 are made non-cognizable, a Police Officer would not have power to investigate those cases without the order of a Magistrate, having a power to try such cases or commit such cases for trial as provided under Section 155(2) of the Code.
However, this Court finds that the Legislative Assembly of the State of Andhra Pradesh enacted the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992. By the said Amending Act, the First Schedule to Central Act 2 of 1974 i.e. the Code of Criminal Procedure, 1973 came to be amended and against the entries relating to Section 494 in column 4 for the word “Ditto”, the word “Cognizable” and in column 5 for the word “Bailable” the word “Non-bailable” were substituted. Similarly, against the entries relating to Section 495 in column 4, for the word “Ditto” the word “Cognizable” and in column 5 for the word “Ditto”, the word “Non-bailable” were substituted. What is relevant to be noticed is that the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was reserved by the Governor of Andhra Pradesh on the 21st October, 1991 for consideration and assent of the President. The Presidential assent was received on 10th February, 1992 after which the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992 was published on the 15th February, 1992 in the Andhra Pradesh Gazette Part IV-B (Ext.). Thus there is no manner of doubt that Sections 494 and 495 IPC are cognizable offences so far as State of Andhra Pradesh is concerned.
And… in Para 14
* * * * * *
In view of the above settled legal position, this Court has no doubt that the amendment made in the First Schedule to the Code of Criminal Procedure, 1973 by the Code of Criminal Procedure (Andhra Pradesh Second Amendment) Act, 1992, shall prevail in the State of Andhra Pradesh, notwithstanding the fact that in the Criminal Procedure Code, 1973 offences under Section 494 and 495 are treated as cognizable offences. The reasoning given by the Division Bench of High Court of Andhra Pradesh in Mavuri Rani Veera Bhadranna (supra) that though the State Legislation amended the Schedule making the offence under Section 494 IPC cognizable, the legislation made by the Parliament i.e. Section 198 of the Criminal Procedure Code remains and in the event of any repugnancy between the two legislations, the legislation made by the Parliament would prevail, because, Section 198 of the Criminal Procedure Code still holds the field despite the fact that the State Legislation made amendment to the Schedule of Criminal Procedure Code, with respect, is erroneous and contrary to all cannons of interpretation of statute. Once First Schedule to the Code of Criminal Procedure, 1973 stands amended and offences punishable under Sections 494 and 495 IPC are made cognizable offences, those offences will have to be regarded as cognizable offences for all purposes of the Code of Criminal Procedure, 1973 including for the purpose of Section 198 of the Criminal Procedure Code. Section 198(1)(c), after the Amendment made by the Code of Criminal Procedure(Andhra Pradesh Second Amendment) Act, 1992 cannot be interpreted in isolation without referring to the fact that offences under Sections 494 and 495 IPC have been made cognizable so far as the State of Andhra Pradesh is concerned. Therefore, the provision made in Section 198(1)(c) that no Court shall take cognizance of an offences punishable under Chapter XX of the IPC except upon a complaint made by some person aggrieved will have to be read subject to the amendment made by the Legislative Assembly of the State of Andhra Pradesh in 1992. Once, it is held that the offences under Section 494 and 495 IPC are cognizable offences, the bar imposed by operative part of sub-section 1 of Section 198 of the Criminal Procedure Code beginning with the words “No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence” gets lifted so far as offences punishable under Sections 494 and 495 IPC are concerned. As those offences have been made cognizable offences in the State of Andhra Pradesh since 1992, the same will have to be dealt with as provided in the Section 156 which inter alia provides that any officer in charge of a Police Station, may without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII. Even without the authorization under Section 155(2) or Section 156(3) of Criminal Penal Code, offences under Sections 494, 495 and 496 having been rendered cognizable and non-bailable by virtue of the Criminal Procedure Code (Amendment Act, 1992) can be investigated by the Police and no illegality is attached to the investigation of these offences by the police. If the Police Officer in charge of a Police Station is entitled to investigate offences punishable under Section 494 and 495 IPC, there is no manner of doubt that the competent Court would have all jurisdiction to take cognizance of the offences after receipt of report as contemplated under Section 173(2) of the Code. Thus, this Court finds that correct proposition of law was not laid down in Mavuri Rani Veera Bhadranna (supra) when the Division Bench of the Andhra Pradesh High Court in the said case held that as Section 198 of Criminal Procedure Code still holds the field despite the amendment made by State Legislature, the Court would have no jurisdiction to take cognizance of an offence punishable under Section 494 IPC on the basis of report submitted by the Investigating Officer. Even if it is assumed for the sake of argument that in view of Section 198(1)(c) of the Code of Criminal Procedure, the Magistrate is disentitled to take cognizance of the offences punishable under Sections 494 and 495 IPC despite the State amendment making those offences cognizable, this Court notices that in Mavuri Rani Veera Bhadranna (supra), the Division Bench has considered effect of Section 155(4) of the Criminal Procedure Code and thereafter held that the bar under Section 198 would not be applicable as complaint lodged before police for offence under Section 494 IPC also related to other cognizable offences and if police files a charge sheet, the Court can take cognizance also of offence under Section 494 along with other cognizable offences by virtue of Section 155 (4) of the Criminal Procedure Code.
And then in Para 15,
15. Section 155(4) of the Code inter alia provides that:-
“Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable”
Here in this case in the charge sheet it is mentioned that the appellant has also committed offence punishable under Section 420 of the Indian Penal Code which is cognizable and therefore this is a case which relates to two or more offences of which at least one is cognizable and therefore the case must be deemed to be cognizable case notwithstanding that the other offences are non- cognizable. This is not a case in which the FIR is exclusively filed for commission of offences under Sections 494 and 495 IPC. The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to what should be the procedure to be followed by a complainant when a case involves not only non-cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also along with non-cognizable offences it should not be treated as a non-cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under Sections 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected.
Citations: [2011 SCALE 7 671], [2011 RCR CRIMINAL SC 3 674], [2011 RCR CIVIL SC 3 840], [2011 SCC 7 616], [2011 SLT 5 727], [2011 AIOL 509], [2011 ALLMR CRI SC 2931], [2011 ANJ SC 2 202], [2012 BOMCR CRI SC 1 379], [2011 JCC SC 3 2189], [2011 AIR SC 3031], [2011 SCC CRI 3 267], [2011 SCC CIV 3 851], [2011 AIR SC 4702], [2011 ULJ 3 139], [2011 AIC 107 51], [2011 SHIMLC 3 551], [2011 DMC SC 3 50], [2011 ALT CRI 3 242], [2012 BLJ 1 260], [2011 ACR SC 3 3182], [2011 DMC 2 827], [2011 KCCR SN 4 472], [2011 UC 2 1509], [2012 ALD CRI 1 210], [2011 SCR 9 453], [2011 JT SC 8 483], [2011 CRI LJ 4373], [2011 AIR SCW 4702]
Indiankanoon.org link:
https://indiankanoon.org/doc/1342950/
https://www.casemine.com/judgement/in/5609aeefe4b0149711415347
Here is the Andhra Pradesh HC judgement here from 2010 that got dislodged.
AP High Court had passed similar judgment here in 2014, which diligently follows the present Apex Court judgment as binding precedent under Article 141.
Another decision here in 2020 is partly perverse on the point that the Trial Court cannot take cognizance of a charge sheet because Even though offence under Section 494 IPC is made “cognizable” offence as per amendment Act 3 of 1992, there is no corresponding amendment made to Section 198 Cr.P.C. Therefore, the bar under Section 198 Cr.P.C. still subsists.
Therefore, DO NOT RELY on the above APHC Judgment with respect to taking/not taking of cognizance of a 494 IPC case by a Trial Court Magistrate.
For a similar adjudication from State of Odisha, go here.
Index of Bigamy offence u/s 494 and 495 IPC judgments is here.
Apex Court has held that after acquittal from IPC 498A case, husband can file for divorce under the ground of Cruelty.
Telangana High Court said that,
14…..
Merely because the respondent has sought for maintenance or has filed a complaint against the petitioner for the offence punishable under Section 498-A of IPC, they cannot be said to be valid grounds for holding that such a recourse adopted by the respondent amounts to cruelty.”
The Supreme Court disapproved of this view.
The above observation of the High Court cannot be approved. It is true that it is open for anyone to file complaint or lodge prosecution for redressal for his or her grievances and lodge a first information report for an offence also and mere lodging of complaint or FIR cannot ipso facto be treated as cruelty. But when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A of IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only 18 months and thereafter they are separately living for more than a decade now.
Citations : [2019 SCC ONLINE SC 1595], [2019 (6) CTC 587]
Other Sources:
https://indiankanoon.org/doc/60266171/
https://www.casemine.com/judgement/in/5e01d7a18ef1524a1e205ef8
The High Court of Telangana decision that got set aside is here.
Index of all Domestic Violence Judgments is here.
Bad Behavior has blocked 1586 access attempts in the last 7 days.
