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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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