K. NEELAVENIversusSTATE REP. BY INSP. OF POLICE AND ORS.

                       [2010] 3 S.C.R. 548


A                       K. NEELAVENI
                               v.
          STATE REP. BY INSP. OF POLICE AND ORS.
              (Criminal Appeal No. 574 of 2010 )
                        MARCH 22, 2010
B
              [D.K. JAIN AND C.K. PRASAD, JJ.)

        Code of Criminal Procedure, 1973 - ss.482, 190 and
  239 - Charge sheet under ss.406 and 494 /PC - Quashed
c by High Court, even before exercise of discretion by
  Magistrate under s.190, CrPC - Justification of - Held: On ..
  facts, not justified - High Court ought not to have interfered
  when the Magistrate had not even examined as to whether the
  accused persons deserved to be discharged in terms of
D s. 239, CrPC - High Court ought to have allowed the
  provisions of CrPC its full play - Penal Code, 1860 - ss.406
  and 494.

        On the basis of complaint lodged by the appellant-
  wife, police submitted charge-sheet under ss. 406 and
E 494 IPC against the husband and in-laws of the appellant
  i.e. respondent nos. 2 to 13.

      The accused-respondents approached the High
  Court for quashing of the charge sheet even before any
F order was passed by the Magistrate in terms of s.190,
  CrPC.

        The High Court quashed the charge-sheet on the
    groum.i that it did not reveal ingredients constituting
    offences under ss.494 and 406. Hence the present appeal.
G
        Allowing the appeal, the Court

       HELD: 1.1. From a perusal of the allegations made
  in the FIR, it is evident that the appellant-wife has clearly
H                               548
             '
 K. NEELAVENI v. STATE REP. BY INSP. OF POLICE 549
                      AND ORS.
alleged that her husband had married another lady and            A
the said marriage had taken place. in the presence and
with the support of other accused persons. The appellant
had also stated that from the second marriage a girl child
was born. In the FIR, it had clearly been alleged that
besides gold ornaments other household articles were             B
given in marriage and further the appellant was subjected
to cruelty and driven out from the matrimonial home by
the accused persons. [Para 8) [554-8-0)

     1.2. The allegations made in the FIR, at such a stage,      C
have to be accepted as true, and allegations so made
prima facie, constitute offences under ss. 406 and 494,
IPC. It has to be borne in mind that while considering the
application for quashing of the charge· sheet, the
allegations made in the FIR and the materials collected
during the course of the investigation are required to be        D
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. [Para 8) [554-0-F]
                                                                 E
    1.3. The High Court erred in holding that the charge
sheet does not reveal the ingredients constituting the
offences under ss. 494 and 406, IPC. [Para 9) [554-G]

     2. It seems that accused persons approached the
High Court for quashing of the charge sheet even before
                                                               F
any order was passed by the Magistrate in terms of s.190,
CrPC. 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 G
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 ss.406 and 494, IPC from the charge sheet even before H
    550     SUPREME COURT REPORTS              [2010] 3 S.C.R.


A the exercise of discretion by the Magistrate under s.190,
  CrPC is undesirable. In the facts and circumstances of
  the case, quashing of the charge sheet under ss.406 and
  494, IPC at this stage in exercise of the power under
  s.482, CrPC was absolutely uncalled for. [Para 10) [554-
B H; 555-A-D]

         3. Offences under ss.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
C   procedure for trial of warrant case by a Magistrate
    instituted on a police report is provided under Chapter
    XIX Part A, CrPC. Section 239, CrPC inter alia provides
    that if upon considering the police report and the
    document sent with it under s.173 and making such
D   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
E   that the accused persons even before the case had
    reached that stage filed an application for quashing of the
    charge sheet under ss.406 and 494, IPC. The High Court
    ought not to have interfered after the submission of the
    charge sheet and even before the Magistrate examining
F   as to whether the accused persons deserved to be
    discharged in terms of s.239, CrPC. [Para 11) · [555-D-H;
    556-A]

       4. There is yet another reason which the High Court
G ought to have considered before quashing the charge
  sheet under ss.406 and 494, IPC. All the offences are
  triable by Magistrate and quashing of the charge sheet
  under ss.406 and 494, IPC had not resulted into
  exonerating the accused persons from facing the trial
  itself. Matter would have been different had the offences
H
K. NEELAVENI v. STATE REP. BY INSP. OF POLICE 551
                  AND ORS.
under ss.406 and 494, IPC been triable as sessions case.             A
In matter like this the High Court ought to have allowed
the provisions of the Code of Criminal Procedure its full
play. [Para 12] [556-B-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                B
No. 574 of 2010.

    From the Judgment & Order dated 29.9.2008 of the High
Court of Judicature at Madras in Criminal O.P. 23473 of 2008.

     Guru Krishna Kumar, Sumit Kumar for the Appellant.              c
    R. Shunmugarundaramn, R.V. Kameshwaran, S.
Thananjayan for the Respondents.

     The Judgment of the Court was delivered by
                                                                     D
     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            E
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/       F
11/2002 gave a written report to the Inspector of Selaiyur
Police Station, inter alia, alleging 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          G
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
                                                                     H
    552       SUPREME COURT REPORTS                 [2010] 3 S.C.R.


A 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
B 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
C 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
D under Sections 406, 494 and 498A of the Indian Penal Code
  was registered against the accused persons. Police after usual
  investigation submitted charge sheet under Sections 406. 494
  and 498A of the Indian Penal Code.

E       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
F 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
G 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
H         petitioners, a careful reading of the complaint of the
 K. NEELAVENI v. STATE REP. BY INSP. OF POLICE 553
          AND ORS. [C.K. PRASAD, J.]
     second respondent, statements of witnesses recorded            A
     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         s
     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 C
 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 D
 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 E
 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 F
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 G
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
                                                                    H
          554     SUPREME COURT REPORTS                   [2010] 3 S.C.R.


      A 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.
      B
             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
      C 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
      D 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,
      E 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
      F 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.

      G        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 accus~d persons approached the High
      H Court for quashing of the charge sheet even before any order



I .
K. NEELAVENI v. STATE REP. BY INSP. OF POLICE 555
         AND ORS. [C.K. PRASAD, J.]
was passed by the Magistrate in terms of Section 190 ofthe            A
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      B
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        C
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             D
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, th~ case has to be tried as a warrant       E
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               F
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          G
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
                                                                      H
    556      SUPREME COURT REPORTS                  [2010] 3 S.C.R.


A   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
8 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
C 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.

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

    8.8.8.                                         Appeal allowed.




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