Miss Meera Gupta and Another vs Kanchan Gupta and Another

Palok Basu, J.—Three questions of importance have arisen in the instant petition u/s 482 Code of Criminal Procedure.

Has Section 498A IPC been repealed from the Indian Penal Code and cannot be enforced because of the coming into force of Repealing and Amending Act of 1988 (Act No. 19 of 1988)?

Can Section 187 Code of Criminal Procedure be applied if in one district a complaint against sixteen accused is pending while in another district a police challenged case against ten of those accused is pending regarding same offences?

If the answer to the second question is in the affirmative, are the provisions of Section 210 Code of Criminal Procedure applicable?

This petition u/s 482 Code of Criminal Procedure has been filed by Meera Gupta (describing herself as miss, and her father Kishan Lal Gupta alias Aspatali Gupta, praying that Criminal Case No. 1134/89, arising out of the First Information Report dated 25-3-88, lodged by Smt. Kanchan Gupta u/s 498A/494 IPC of P.S. Kotwali, Fatehpur, be quashed on the ground that in the Court of Chief Judicial Magistrate, Sultanpur Smt. Kanchan Gupta has initiated complaint Case No. 747/88 against sixteen accused, all of whom have been summoned u/s 494/109 IPC by the Chief Judicial Magistrate''s order dated 16-6-88 and ten accused being common in both cases, the latter police-case in Fatehpur should not be permitted to stand. The allegations are that Smt Kanchan Gupta daughter of Jagannath Prasad who is a resident of district Sultanpur, was married to Ashok Kumar Gupta of district Fatehpur. However, Smt. Kanchan Gupta not having good looks and repeated demands for a motorcycle and some cash being made, altercations used to take place and the complainant was put to harassment. In the meantime Ashok Kumar developed illicit relations with Meera Devi daughter of Kishan Lal Gupta alias Aspatali Gupta of Allahabad and married her. When the complainant deputed her brother to go to Ashok Kumar to make inquiries and fetch the goods and valuables, he was maltreated. Ashok Kumar had although beaten the complainant. The sixteen accused Were related to or are friends of Ashok Kumar. In the FIR ten out of the sixteen accused have been nominated with no reference to any date on which any specific offence was committed. It is not being disputed that the allegations in the pith and substance made in the FIR are similar to those made in the complaint.

Sri. R.B. Sahai, learned Counsel for the applicants, Sri. R.P. Singh and Sri. Pradeep Verma, for the complainant/informed (Kanchan Gupta) and Sri. Surendra Singh, learned AGA for the State have been heard in this case at length.

Sri. Sahai argues that the complaint having already been taken cognizance at Sultanpur, the latter FIR giving rise to the police challenged case in Fatehpur, should be quashed. Sri. R.P. Singh, repels this argument by relying upon the fact that in police case, witnesses will be examined by the State and not the complainant and as such the State case should be asked to proceed The other argument is that by suitable directions u/s 187 Code of Criminal Procedure, the two cases referred to above, be amalgamated and tried at one place. In this connection, reliance was placed on the provisions contained in Section 210 Code of Criminal Procedure, the applicability of which was disputed by Sri. Sahai.

Point No. 1

It is true that Act No. 19 of 1988, has repealed the Criminal Law Second Amendment Act of 1983 (Act No. 46 of 1983) through which Chapter XX-A was added after Chapter XX in the Indian Penal Code. This Chapter has only one Section namely 498A. By Act No. 46 of 1983, Section 104 Code of Criminal Procedure and Section 176 Code of Criminal Procedure were amended; a new Section 198A was added after Section 198 Code of Criminal Procedure. First Schedule in the Code of Criminal Procedure was amended so as to make place for 498A, and in the Indian Evidence Act, 113A was added. The objects and reasons for the said Act No. 46 of 1983 were that the increasing number of dowry deaths became a matter of serious concern and were adversely commented upon by the Joint Committee of Houses constituted to examine the working of Dowry Prohibition Act 1961. Cases of cruelty by the husbands and relatives of the husbands which culminated in suicide by or murder of the helpless women concerned, constitute only a small fraction of the cases involved in such cruelty. It was, therefore, proposed to amend the Penal Code, the Code of Criminal Procedure and the Evidence Act suitably, to deal effectually not only with the cases of dowry deaths but also cases of cruelty to married women by their in-laws.

Similarly Criminal Law Amendment Act of 1983 (No. 43 of 1983) brought about some changes in the Indian Penal Code by adding Section 228A; the heading "Of Rape" and Section 375 and 376 were recast; corresponding amendments were made in Section 327 Code of Criminal Procedure; the First Schedule of Code of Criminal Procedure made place for 228A and 376, 376A, 376B, 376C and 376D; corresponding amendment was made in the Indian Evidence Act by bringing Section 114A

The Act No. 19 of 1988 known as "The Repealing and Amending Act 1988" was passed on 31-3-1988 and was promulgated the same day. A combined reading of Section 3 and 4 of the said Act indicates that some amending Acts shown in the Schedule were to stand amended to the extent and in the manner mentioned in the fourth column thereof. From a reading of the Schedule it appears that the whole of the Criminal Law Amendment Act of 1983, Criminal Law Second Amendment Act 1983 (i.e. Act No. 43 of 1983 and Act No. 46 of 1983) were repealed. Section 4 of the Repealing and Amending Act (Act No. 19 of 1988) provides that the repeal of any enactment thereby shall not affect other enactments in which the repealed enactment has been ''applied, incorporated or referred to. Therefore, the argument that because the whole of Act No. 46 of 1983 stands repealed and therefore no prosecution can be initiated for offence punishable there under must be repelled in the strongest terms because, those amendments have already been applied, incorporated or referred to as having become part of those main statutes.

It may be remembered that such ''Repealing and Amending Acts'' have no positive legislative effect but are designed for excluding dead matters from the Statute book and to diminish its bulk. Once the Amending Acts have achieved their purpose by bringing about desired amendments in the parent statutes, they outlive their utility. This exercise may be referred as ''legislative Spring cleaning''. The words ''applied, incorporated or referred to'' are in relation to the parent statutes which stood amended by some or the other earlier Amending Act. The provisions so incorporated obviously continue in force so far as they form part of the parent enactments This principle has been accepted by Maxwell in his Interpretation of Statutes (12th Edition page 17).

It is therefore, manifest that Section 498A and other similar sections etc. of Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act have been incorporated at their relevant places in the said three parent statutes. Those three statutes live and survive along with the offspring''s born due to their union with the earlier Amending Acts which have since been eliminated by the repealing provisions of Act No. 19 of 1988. Thus all those Sections can and have to be applied wherever exigencies so require. Section 498A IPC, therefore, very much survives.

Point No. 2.

With regard to these two points Sri. R.P. Singh has argued that since the accused had not raised the question before the Magistrate concerned, they can not maintain this petition u/s 482 Code of Criminal Procedure. His farther argument is that since the accused in the two cases are different and the mode of taking cognizance in the two cases was also different, Section 186 Code of Criminal Procedure would not be attracted.

It is quite clear that the cognizance by the Magistrate in Fatehpur on the police charge-sheet has been taken latter than was taken by the Magistrate in Sultanpur in the complaint case. Keeping this factor in view it has to be concluded that regarding those accused who are common in both the cases, two courts have taken cognizance because of the two different steps intentionally taken by the complainant/informant in two different districts.

In this connection, Section 186 Code of Criminal Procedure may be quoted here for ready reference:

High Court to decide, in case of doubt, district where inquiry or trial shall take place where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided: (a) If the Courts are subordinate to the same High Court;

(b) If the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced.

and thereupon all other proceedings in respect of that offence shall be discontinued.

It may be noted that this section does not draw a distinction between cases in which cognizance is taken on police-report and on complaint.

The prosecution cannot be permitted to voluntarily choose two modes for prosecuting different sets of accused at two different places for one and similar offences. The accused''s argument that such modes are designed to cause harassment to the accused appears plausible. The accused''s right to get one fair trial for the alleged offence at one place must be safeguarded by Court.

Section 190 Code of Criminal Procedure envisages only one mental reaction of the Magistrate to material or evidence brought either through complaint or police report or other information or own knowledge showing commission of ''offence'' and that is described as ''taking cognizance'' of the offence. Therefore, it would be doing violence to the language used in Section 186 Code of Criminal Procedure if the word ''cognizance'' therein is interpreted to create an artificial distinction between cognizance on complaint and cognizance on police-report, sought to be created by the learned Counsel for the complainant. Therefore, the right of the accused to invoke Section 186 Code of Criminal Procedure can not be denied just because the in- formant chose to alter some of the ancillary allegations and reduce the number of the accused in the FIR at the later place than she has disclosed in her complaint at the former, material acts and omissions remaining similar in both.

Point No. 3

The only question remaining for determination is which of the two cases described above should proceed and how? In this connection Section 210 Code of Criminal Procedure becomes relevant. There is no reason that the principles behind Section 210 Code of Criminal Procedure be not applied on the facts of the present case just because the complainant has voluntarily bifurcated her mode of expressing grievance into two at two different districts. It consequently follows that those accused who are not nominated in the charge-sheet by the police but are accused in the complaint will be proceeded with in the complaint case, keeping in view provisions of Sub-section (3) of Section 210 Code of Criminal Procedure.

This application consequently succeeds and is partly allowed. Case No. 1134/89 u/s 498A/494 IPC P.S. Kotwali, district Fatehpur, State v. Ashok Kumar and Ors. be remitted to the Court of the Chief Judicial Magistrate, Sultanpur, who will take up the same along with Complaint Case No. 747/1988, u/s 494/498A IPC and proceed with the cases in accordance with law keeping in view the observations made above.

The Chief Judicial Magistrate, Fatehpur, will ensure compliance within three weeks of production of certified copy of this order in his Court.