http://www.indiankanoon.org/doc/1440610/
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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.574 OF 2010

[arising out of SLP(Crl.)No.3562 of 2009]

K. NEELAVENI ..... APPELLANT VERSUS

STATE REP. BY INSP. OF

POLICE & ORS. .....RESPONDENTS J U D G M E N T

HON. C.K. PRASAD, J.

Leave granted.

1. The appellant-wife aggrieved by the order dated 29th September, 2008
passed by the High Court of Judicature at Madras in Criminal O.P. No. 23473
of 2008, whereby it had quashed the charge sheet under Sections 406 and 494
of the Indian Penal Code, has preferred this appeal seeking special leave to
appeal.

2. Shorn of unnecessary details, the facts giving rise to the present appeal
are that the appellant-wife K. Neelaveni on 07/11/2002 gave a written report
to the Inspector of Selaiyur Police Station, inter alia, alleging 2

that her marriage was performed with accused respondent No. 2 - S.K. Siva
Kumar on 3rd September, 1997 in which gold ornaments and various other
household articles were given by her parents. She had further alleged that
her husband used to abuse her and her family members under influence of
alcohol and demanded Rs. 50,000/- from her parents. According to the First
Information Report, when she was pregnant, on scan it was found that she was
carrying a female foetus, her husband and his family members started
harassing her and insisted for aborting the child. On her refusal to give
consent for abortion according to the informant on 18.1.1998, her husband,
mother-in-law, brother-in-law and sister-in-law assaulted her and had driven
her out from the matrimonial home and the husband left her on way to her
parents house. She gave birth to a girl child on 25.6.1998.

3. Informant in the written report had further alleged that her husband had
married another lady namely, Bharathi without her consent with the help and
in the presence of other accused persons. She had further alleged that a
female child was born to them in the wedlock.

4. On the basis of the aforesaid written report, a case under Sections 406,
494 and 498A of the Indian Penal Code 3 was registered against the accused persons. Police after usual investigation submitted charge sheet under Sections 406. 494 and 498A of the Indian Penal Code.

5. Accused persons namely respondent Nos. 2 to 13 filed petition before the
High Court for quashing the charge sheet under Sections 406 and 494 of the
Indian Penal Code, inter alia, contending that in the absence of any
material to show that "the second marriage was duly performed with religious
rites and essential ceremonies" charge sheet under Section 494 of the Indian
Penal Code is fit to be quashed. It was, further, contended that allegations
made in the First Information Report and the materials collected during the
course of investigation do not fulfill the ingredients of offence under
Section 406 of the Indian Penal Code. Aforesaid submissions found favour
with the High Court and it had quashed the charge sheet under Sections 406
and 494 of the Indian Penal Code. While doing so the High Court observed as
follows:-

"As rightly contended by the learned counsel for the petitioners, a careful reading of the complaint of the second respondent, statements of witnesses recorded under Section 161 Cr.P.C. and the charge sheet do not reveal the ingredients constituting the
offences under Section 494 and 406 IPC, yet the first respondent has chosen
to file the charge for the said offences. Therefore, this court is constrained to 

quash the charge sheet as against the petitioners as far as the offences
under Sections 406 and 494 IPC alone are concerned. It is made clear that
the charge sheet as against the petitioners under Section 498A IPC is not
quashed."

6. Mr. Guru Krishna Kumar, the learned counsel on behalf of the appellant
submits that the conclusion arrived at by the High Court that the charge
sheet did not reveal the ingredients constituting the offences under
Sections 494 and 406 of the Indian Penal Code is erroneous. He draws our
attention to the First Information Report and submits that there is an
allegation of the second marriage and even birth to a child and hence it
cannot be said that ingredients constituting offence under Section 494 of
the Indian Penal Code do not exist. He pointed out that the High Court while
considering the application for quashing of the charge sheet was obliged to
take into account the allegations made in the First Information Report and
the materials collected during the course of investigation. He submits that
in case the allegations made in the First Information Report and the
materials collected during the course of the investigation are taken into
account, same constitute an offence under Section 494 of the Indian Penal
code. It has further been pointed out that gold ornaments and household
articles were given to the husband and she was driven out from the matrimonial home on a refusal to consent for
abortion. Accordingly, Mr. Guru Krishna Kumar submits that allegation in the
First Information Report and the materials collected during the course of
investigation clearly constitute offences under Sections 406 and 494 of the
Indian Penal Code.

7. Mr. R. Shunmugasundaram, learned senior counsel appearing on behalf of
respondent Nos. 2 to 13, however, submits that the ingredients of an offence
under Sections 406 and 494 of the Indian Penal Code do not exist and,
therefore, the High Court did not err in quashing the charge sheet under
Sections 406 and 494 of the Indian Penal code.

8. We have given our thoughtful consideration to the submissions advanced
and we are inclined to accept the submission of Mr. Guru Krishna Kumar,
learned counsel for the appellant. From a perusal of the allegations made in
the First Information Report, it is evident that the appellant has clearly
alleged that her husband had married another lady namely Bharathi and the
said marriage had taken place in the presence and with the support of other
accused persons. She had also stated that from the second marriage with
Bharathi a girl child was born. In the First Information Report, it had clearly been alleged that besides gold ornaments
other household articles were given in marriage and further she was
subjected to cruelty and driven out from the matrimonial home by the accused
persons. In our opinion, the allegations made in the First Information
Report, at this stage, have to be accepted as true, and allegations so made
prima facie, constitute offences under Sections 406 and 494 of the Indian
Penal Code. It has to be borne in mind that while considering the
application for quashing of the charge sheet, the allegations made in the
First Information Report and the materials collected during the course of
the investigation are required to be considered. Truthfulness or otherwise
of the allegation is not fit to be gone into at this stage as it is always a
matter of trial. Essential ceremonies of the Marriage were gone into or not
is a matter of trial.

9. From what we have said above, we are of the opinion that the High Court
erred in holding that the charge sheet does not reveal the ingredients
constituting the offences under Sections 494 and 406 of the Indian Penal
Code.

10. It seems that accused persons approached the High Court for quashing of
the charge sheet even before any order was passed by the Magistrate in terms
of Section 190 of the Code of Criminal Procedure. In our opinion, when a report is
submitted to the Magistrate he is required to be prima facie satisfied that
the facts disclosed therein constitute an offence. It is trite that the
Magistrate is not bound by the conclusion of the investigating agency in the
police report i.e. in the charge sheet and it is open to him after exercise
of judicial discretion to take the view that facts disclosed in the report
do not constitute any offence for taking cognizance. Quashing of Sections
406 and 494 of Indian Penal Code from the charge sheet even before the
exercise of discretion by the Magistrate under Section 190 of the Code of
Criminal Procedure is undesirable. In our opinion, in the facts and
circumstances of the case, quashing of the charge sheet under Sections 406
and 494 of the Indian Penal Code at this stage in exercise of the power
under Section 482 of the Code of Criminal Procedure was absolutely uncalled
for.

11. It is relevant here to state that offences under Sections 406, 494 and
498A are triable by a Magistrate, First Class and as all these offences are
punishable with imprisonment for a term exceeding two years, the case has to
be tried as a warrant case. The procedure for trial of warrant case by a
Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure,
1973.   Section 239 inter alia provides that if upon considering the police
report and the document sent with it under Section 173 and making such
examination, if any, of the accused and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused and
record his reasons for so doing. It seems that the accused persons even
before the case had reached that stage filed an application for quashing of
the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our
opinion, the High Court ought not to have interfered after the submission of
the charge sheet and even before the Magistrate examining as to whether the
accused persons deserved to be discharged in terms of Section 239 of the
Code of Criminal Procedure.

12. There is yet another reason which the High Court ought to have
considered before quashing the charge sheet under Sections 406 and 494 of
the Indian Penal Code. All the offences are triable by Magistrate and
quashing of the charge sheet under Sections 406 and 494 of the Indian Penal
Code had not resulted into exonerating the accused persons from facing the
trial itself. Matter would have been different had the offences under Sections 406 and 494 of the Indian Penal
Code been triable as sessions case. In matter like this the High Court ought
to have allowed the provisions of the Code of Criminal Procedure referred to
above its full play.

13. For all these reasons we are unable to sustain the order impugned in
the present appeal.

14. We hasten to add that all the observations made in this judgment are
for the purpose of disposal of this appeal and shall have no bearing during
the course of trial.

15. In the result, we allow the appeal and set aside the impugned judgment.

..................J

[ D.K. JAIN ]

..................J

[ C.K. PRASAD ]

NEW DELHI

MARCH 22, 2010.