TULSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE order passed by the Assistant Sessions Judge, Nagpur on 22-6-1989 on Exhibit 8 in Sessions Trial No. 264 of 86 refusing to discharge the petitioners of the offence punishable under section 498-A of the Indian Penal Code has been challenged in this proceeding.

(2.) THE petitioner 1 is the mother of petitioner 2. Mahadeo, the petitioner 2 was married to one Kamlabai. However, he subsequently married to Shakuntala who is supposed to be the victim of the present offence. On or about 24-5-1986. Shakuntala and her child of about 7 months old were found in the well. They were taken out of the well. But by that time the child was dead. Shakuntala, however, survived. The Police registered offence under sections 302 and 309 of the Indian Penal Code against Shakuntala. The investigation in that case proceeded. Ultimately, a charge-sheet came to be filed against Shakuntala before the Judicial Magistrate. First Class. The Judicial magistrate, First Class committed the case to the Court of Sessions and Sessions Trial No. 2/87 is now pending before the Sessions Court at Nagpur.

(3.) WHILE the above offence was pending investigation, it transpired that Shakuntala was harassed and ill-treated by the present petitioners. The Officer in charge of investigation of that offence, therefore, lodged his F. I. R. and Crime No. 84/86 came to be registered. This crime was further investigated. The crime was registered under sections 306 and 498-A of the Indian Penal Code. On due investigation, charge-sheet came to be filed before the Judicial Magistrate, First Class. The learned Magistrate committed the case to the Court at Sessions and it was Sessions Trial No. 264/86. While this case was pending before the Court of Sessions, the accused (present petitioners) filed an application for discharge under section 227 of the Criminal Procedure Code. One of the contentions raised in that application was that the charge under section 306 of the Indian Penal Code could not survive inasmuch as Shakuntala was still alive and there could be no offence under section 306 of the Indian Penal Code. The charge under section 438 of the Indian Penal Code was, thus, assailed on this ground. As far as the charge under section 498-a is concerned, it was the contention of the petitioners that the whole investigation has been vitiated, because the Police could not investigate into the matter as the offence under section 498-A was non cognizable No. permission was obtained from the Magistrate to investigate this offence. Thus, the whole exercise of investigation undertaken by the investigating machinery is not only futile but it is vitiated. It is further contended that no Court could take cognizance of the offence under section 498-A of the Indian Penal Code except upon the report which constitutes such offence or upon a complaint made by a person aggrieved by the offence or by her father or mother, brother, sister or by her fathers or mothers brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption. It was, thus contended that the Court had no option but to discharge the accused.