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the Dowry Prohibition Act, 1961
The Indian Penal Code
Section 308 in The Indian Penal Code
Section 420 in The Indian Penal Code
Section 154 in The Indian Penal Code

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Bombay High Court
Smt. Archana Harshwardhan ... vs Commissioner Of Police, The State ... on 23 July, 2007
Equivalent citations: 2007 (109) Bom L R 1724
Author: D Sinha
Bench: D Sinha, B Dharmadhikari

JUDGMENT D.D. Sinha, J.

Page 1727

1. Heard Shri S.V. Manohar, learned Counsel for Petitioners and Smt. S.S. Wandile, learned Additional Public Prosecutor for Respondents. Rule, made returnable forthwith by consent of parties.

2. Shri Manohar, learned Counsel for petitioners has contended that in the instant Criminal Writ Petition, grievance of petitioners is that, complainant has filed police complaint dated 13.03.2007 against Shri Harshwardhan Chaturvedi (accused No. 1 -husband of petitioner No. 1), Smt. Asha Chaturvedi (mother of accused No. 1), Dr. Prakash Chaturvedi (father of accused No. 1) and Ku. Jaya Chaturvedi (sister of accused No. 1), for the offence punishable under Sections 498A and 420 read with Section 34 of Indian Penal Code, similarly under Sections 3 and 4 of Prohibition of Dowry Act, as well as under the provisions of Prevention of Women from Domestic Violence Act. Shri Manohar, learned Counsel for petitioners has submitted that apart from the above referred complaint, allegations are also made in the police report that the accused No. 1 - Harshwardhan Chaturvedi, before marriage was solemnized between him and petitioner No. 1 in the year 2000 was patient of HIV Positive. It is further contended that the accused No. 1 was fully aware about the deadly ailment he was suffering from, prior to getting married to petitioner No. 1. The accused No. 1 deliberately and purposely did not disclose these facts to the petitioner No. 1 and performed the marriage with her. It is further submitted that the act of accused No. 1 falls within the ambit of provisions of Section 420 of Indian Penal Code as well as Section 308 of the Code. It is contended that in the instant case, though the Police Station Officer, Dhantoli registered crime against the above referred accused persons for the offence punishable under Sections 498A, 406 read with Section 34 of Indian Penal Code, Sections 2 and 3 of Dowry Prohibition Act and Section 3 of the Prevention of Women from Domestic Violence Act. However, for offence punishable under Section 420 as well as Section 308 of the Code, no crime has been registered by the police station concerned, though the cognizable offence is made out. It is contended that in view of the decision of the Hon'ble Apex Court (Ramesh Kumari v. State (NCT of Delhi) and Ors.), it was incumbent on the Police Station Officer to register the offence if the complaint discloses such cognizable offence, and it is only thereafter the investigating officer is required to conduct the investigation and take it to its logical end by filing charge sheet or by obtaining necessary orders from the Magistrate in the Summary Proceeding.

Page 1728

3. Shri Manohar, learned Counsel for petitioners has further contended that in the instant case, since the police station officer has not taken cognizance in respect of the cognizable offences disclosed in the complaint, appropriate directions in this regard be given.

4. Smt. Wandile, learned Additional Public Prosecutor has not disputed this fact of lodging of complaint by the complainants/petitioners as well as registration of crime for the offences under Sections 498A and 406 of Indian Penal Code, as well as under Sections 3 and 4 of the Dowry Prohibition Act and under the provisions of Prohibition of Women from Domestic Violence Act. However, police is yet to register offence under the provisions of Section 420 and 308 of Indian Penal Code for want of adequate evidence, however, as and when such evidence is available, collected the accused persons shall also be prosecuted for the offence punishable under Sections 420 and 308 of Indian Penal Code.

5. Before considering the issues involved in the present Criminal Writ Petition, it would be appropriate for us to consider the observations of the Hon'ble Apex Court in paragraph No. 4 of its judgment in the case of Ramesh Kumari [supra], which reads thus:

4. That, the Police Officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code are no more res integra. The point of law has been set at rest by this Court in the case of State of Haryana and Ors v. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335. This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under:

31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154[1] of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Section 156 and 157 of the code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context). In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such Page 1729 refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by Sub-section [3] of Section 154 of the Code.

32. Be it noted that in Section 154[1] of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41[1][a] or [g] of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154[1] unlike in Section 4[1][a] and [g] of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1961) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 [Act 10 of 1872] which thereafter read that 'every complaint preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Section 154, 155, 157 and 189[c] of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information must disclose a cognizable offence.

Finally this Court in para 33 said:d

33. It is therefore, manifestly clear that, if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154[1] of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.

6. The Hon'ble Apex Court in paragraph No. 5 of the said judgment has concluded the issue by observing thus:

5. The views expressed by this Court in paragraphs 31, 32 and 33 as quoted above leave no manners of doubt that the provision of Section 154 of the Code is mandatory and the concerned officer is Page 1730 duty bound to register the case on the basis of such an information disclosing cognizable offence.

7. In view of the above referred observations of the Hon'ble Apex Court, it is implicitly clear that Scheme of Section 154 is mandatory in nature, and if the complaint discloses cognizable offence, then there is no discretion left with the concerned police station officer, but to register the offence and then proceed with the investigation according to the procedure prescribed in law. In the instant case, since the investigation is in progress in respect of the offences already registered against the persons named in the complaint, we do not want to express anything one way or the other on the merits of the matter, however, we direct the Police Station Officer, Dhantoli, Nagpur to apply his mind to the allegations made in the complaint and if those allegations disclose any cognizable offence against the above named persons named in the complaint, under the provisions of Sections 420 and 308 of Indian Penal Code, appropriate steps according to law by registering crime in the light of the observations made by the Hon'ble Apex Court in the case of Ramesh Kumari (supra), shall be taken without any further delay.

8. Learned Additional Public Prosecutor has submitted that in the present case, direction be given to the Medical College and Hospitals located in and out of the State to lend active cooperation in the investigation by providing necessary access to the documentary evidence available with the hospitals. The learned Additional Public Prosecutor, states that so far as the hospital at Nagpur is concerned, it is Government Medical College and Hospital, Nagpur and the another Hospital is situated at Lucknow i.e. King George Medical University, Department of Medicine, Lucknow. It is contended that in order to conduct investigation in respect of the fact as to whether the accused No. 1 was either admitted or was taking treatment for HIV Positive from either of these hospitals, active cooperation of these hospitals is necessary.

9. So far as this aspect is concerned, we see no difficulty in issuing directions to the Government Medical College and Hospital, Nagpur to provide all necessary cooperation to the investigating agency during the course of investigation of the crime in question, and give them access to the documents, medical files/report of the accused. We want investigating officer to keep confidentiality of those medical reports till such time the charge sheet is filed in the court. So far as the Medical Hospital situated at Lucknow is concerned, we expect the King George Medical University, Department of Medicine, Lucknow to extent full cooperation in the investigation of the crime, since it is brought to the notice of this Court that summons under Section 91 of the Code of Criminal Procedure is already issued to the authorities on 17.04.2007.

10. For the reasons stated herein above, Criminal Writ Petition is disposed of with no order as to cost. Certified copy expedited.