ORDER
T. Nandakumar Singh, J.
1. This Misc. Application is directed against the judgment and order of the learned Chief Judicial Magistrate, Imphal dated 22-6-2005 passed in Crl. (C) Misc. Case No. 66 of 2004 for rejecting the application Under Section 210 of the Cr.P.C. filed by the present petitioner No. 1 /accused for staying the further proceeding of the Crl. (C) Case No. 66 of 2004 filed by the present respondent/complainant against the present petitioner No. 1/accused.
2. The factual panorama in short is that :-
The present respondent/complainant is the wife of the present petitioner No. 1/accused and their marriage ceremony was held on 26-11-1985 at the residence of the parental house of the present respondent/complainant at Yumnam Leikai, Imphal as per the Hindu customary practices. Of their wedlock, three children were born. During the subsistence of their marriage, the present petitioner No. 1/accused illegally married the present petitioner No. 2/accused at the parental house of the petitioner No. 2 on 29th December, 2003. It is also the case of the respondent/complainant that the present petitioner No. 1/accused did not obtain a decree of divorce against the respondent/complainant from the competent Court and as such, the present petitioner No. 1/accused had committed the offence punishable under Section 494, IPC.
3. On 5th March, 2004, the respondent/ complainant lodged an FIR with the Officer-in-Charge of the Imphal Police Station against the present petitioner No. 1/accused that the present petitioner No. 2/accused No. 2 during the subsistence of the marriage of the respondent/complainant with the accused No. 1. The O.C. Imphal Police Station, accordingly, registered the FIR case being No. 63(3) 2004 IPS under Sections 406, 417, 494, 438A and 120-B, IPC against the present petitioner No. 1/accused. It is also alleged that during the course of the investigation of the said FIR case, the police officer attempted to arrest the petitioner but the learned Sessions Judge, Manipur West granted anticipatory bail to the petitioner No. 1. Thereafter, the I.O. of the said FIR case did not take up any steps for investigating the said FIR ease.
4. Admittedly while the investigation of the said FIR was in progress, the respondent/complainant field a complaint case being Crl.(C) Case No. 66 of 2004 against the present petitioner No. 1 /accused and the petitioner No. 2 in the court of the Chief Judicial Magistrate, Imphal. The learned Chief Judicial Magistrate Imphal under his order dated 3-4-2004 passed in Crl. (C) Case No. 6.6 of 2004 took the cognizance of the offence under Section 494 IPC against the present petitioner No. 1/accused and the petitioner No. 2. The present petitioners filed an application under Section 210 of the Cr.P.C. in the Court of the learned Chief Judicial Magistrate, Imphal for staying the further proceedings of the enquiry/trial of the Crl. (C) Case No. 66 of 2004 on the ground that the said case being FIR Case No. 63(3)04 IPS under Sections 406, 417, 494, 438A and 120-B was registered against the petitioner for the same incident and it is under investigation by the concerned I.O. and as such, the learned Chief Judicial Magistrate, Imphal shall stay the further proceeding of the enquiry/trial of the Crl.(C) Case No. 66 of 2004.
5. The learned Chief Judicial Magistrate, Imphal after hearing both parties at length passed the impugned judgment and order dated 22-6-2005 in Crl. (C) Case No. 66 of 2004 wherein it has been held that Section 210 of the CrPC is not applicable in the present case and the present case shall be proceeded according to law. Being aggrieved, the petitioner filed the present Crl. (C) Misc. case for quashing the judgment and order of the learned Chief Judicial Magistrate, Imphal dated 22-6-2005.
6. In the above factual background, this Court has to decide the only point as to whether the learned Chief Judicial Magistrate, Imphal has to stay the further proceedings of the trial of the Crl. (C) Case No. 66 of 2004 in exercise of the power under Section 210(1) of the CrPC only on the ground that the investigation of the said FIR case No. 63(3)04 IPS is in progress.
7. Admittedly, the offence under Section 494, IPC is non-cognizable offence but other offences under Section 406 and 120-B IPC are cognizable offences in the factual context of the present ease.
8. Under Section 190, CrPC, the concerned Magistrate may take the cognizance of any offence :- (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such fact; (c) upon such information received from any person other than the police officer, or upon his own knowledge, that such offences has been committed. The meaning of the word “complaint” is defined in Section 2(d) of the CrPC and it means “any allegations made orally or in writing to a Magistrate, with a view to his taking actions under this Code, that some person, whether known or unknown, has committed the offences, but does not include the police report.” Section 198(1)(c) specifically prohibits the Court from taking cognizance of an offence punishable under Section 494, CrPC except upon the complaint made by his wife, the complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister or with the leave of the Court, by any other persons related to her by blood, marriage or adoptions. From the conjoint reading of the Sections 190 and 194 of the CrPC, it is crystal clear that cognizance of the offence under Section 494 IPC can only be taken by the concerned Magistrate on the application filed by the persons mentioned in Section 198(1)(c) of the CrPC.
9. Since the said FIR i.e. FIR case No. 3(3)04 IPS was registered for the different offences including cognizable and non-cognizable offences, for investigation of the said FIR, the concerned IO, is required to see the provisions of the Section 155 CrPC. For easy reference, Section 155 CrPC is quoted in its entirety.
“155. Information as to non-cognizable cases and investigation of such cases.- (1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the information to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.”
From the bare perusal of the Section 155, CrPC, this much is clear that in a criminal case relating to two or more offences of which at least one is cognizable, the criminal case shall be deemed to be cognizable one, notwithstanding that the other offences are non-cognizable. In the case in hand, admittedly, the said FIR case No. 63(3) 04 IPS relates to offences under Sections 406, 417, 494, 438A and 120-B IPC. Therefore, the concerned IO of the said FIR case No. 63(3)04 IPS can investigate the case for not only the cognizable offence but also for the non-cognizable offences i.e. Section 494 IPC. But the question arises in the present case is that can the learned Chief Judicial Magistrate or/concerned Magistrate could take the cognizance after the police officer submitted the charge-sheet i.e. the police report under Section 173, CrPC of the said FIR case No. 63(3J04 IPS or not? To this point the learned counsel appearing for the petitioner submits that as the said FIR case i.e. said FIR case No. 63(3)04 IPS was not only for the non-cognizable offences but also for the cognizable offences, the I.O. of the said FIR is permitted to investigate the case as the cognizable offence as is permissible under Section 155(4) of the CrPC and as such, the learned Chief Judicial Magistrate or/the concerned Magistrate can take the cognizance under Section 190, CrPC on report of the police under Section 173, CrPC after completing the investigation because of the legal fiction enacted in sub-section (4) of Section 155 and clause (c) of sub-section (1) of Section 198, CrPC. In order to fortify his submission, the learned counsel for the petitioners referred to the decisions of the Apex Court in Pravin Chandra Mody v. State of Andhra Pradesh and the State of Orissa v. Sharat Chandra Sahu .
10. In Pravin Chandra Mody v. State of Andhra Pradesh, 1965 (2) Cri LJ 250 (supra), the Apex Court in a clear and unequivocal term held that where the information disclosed a cognizable as well as non-cognizable offences, the police officer is riot debarred from investigating any non-cognizable offences which may arise out of the same fact. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. Both the offences if cognizable can be investigated together and also if one of them was a non-cognizable offence. Para 6 of the judgment in Pravin Chandra Mody v. State of Andhra Pradesh, 1965 (2) Cri LJ 250 is quoted herein (para 6) :-
“(6) Section 150(2) provides that, where a police officer enquires into an offence under Section 156(1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of facts. Even if the offence under the Essential Commodities Act may be cognizable, the police officer would be competent to include it in the charge-sheet under Section 173 with respect to a cognizable offence. In Ram Krishna v. State, AIR 1958 Pune 172 : 1958 Cri LJ 683, Falshaw J. (as he then was) observed that the provisions of Section 155(1). Criminal Procedure Code, ‘must be regarded as applicable to those cases where the information given to the police is solely about a non-cognizable offence. Where the information discloses a cognizable offence as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offences. We entirely agree. Both the offences if cognizable could be investigated together under Chapter-XIV of the Code and also if one of them was a non-cognizable offence.”
The Apex Court in Gajraj Singh v. State Transport Appellate Tribunal held that (para 31 of AIR) :-
“Legal fiction is one which is not an actual reality and which the law recognise and the Court accept as a reality. Therefore, in the case of legal friction, Court believe something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which is actually non existent. The fact of such legal fiction is that the position which otherwise would not obtain is deemed to obtain under the circumstance.”
11. In State of Orissa v. Sharat Chandra Sahu, (supra), the fact of the case was that on a complaint made by the Women’s Commission to the police station, a case being G. R. Case No. 418 of 1993 was registered against the respondent for the offences punishable under Section 494 IPC and the police investigated the case filed a charge sheet in the Court of the Sub-Divisional Judicial Magistrate, Anandpur and framed a charge against the respondent under Section 498-A as well as under Section 494 IPC. On a Criminal Misc. Application being No. 1169/2004 under Section 482 Cr. P. C. filed by the respondent in the Orissa High Court for quashing the proceedings and charge framed against him, the High Court passed the judgment and order dated 3-5-1.995 partly allowing the petition that the cognizance for the offence punishable under Section 494 IPC could not be taken by the Magistrate in view of the provisions contained in Section 198(1)(c) of the IPC. Consequently, the charge framed by the Magistrate under Section 494 IPC was quashed. Against the judgment and order of the Orissa High Court dated 3-5-1995, a Criminal Appeal being No. 76 of 1995 was filed by the appellant before the Apex Court and the Apex Court by allowing the appeal held that the High Court was clearly in error in quashing the charge under Section 494 IPC on the ground that the trial Court could not have taken cognizance of the offence unless a complaint was filed personally by the wife or any other near relatives contemplated by the clause (c) of the proviso to Section 198(1) of the Cr. P. C. The reasons as well as the law laid down by the Apex Court in the State of Orissa v. Sharat Chandra Sahau, , are mentioned in para Nos. 9, 10, 11 and 12 which read as follows :-
“9. The High Court relied upon the provisions contained in clause (c) and held that since the wife herself had not filed the complaint and Womens’ Commission had complained to the police, the Sub-Divisional Judicial Magistrate, Anandpur could not legally take cognizance of the offence. In laying down this proposition, the High Court forgot that the other offence namely, the offence under Section 498-A IPC was a cognizable offence and the police was entitled to take cognizance of the offence irrespective of the person who gave the first information to it. It is provided in Section 155 as under :
“155. Information as to non-cognizable cases and investigation of such cases.- (1) when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in book to be kept by such officer in such form as the State Government may prescribe in this behalf and refer the information to the Magistrate.
(2) No police officer shall investigate a non cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." 10. Sub-section (4) of this section clearly provides that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable.
11. Sub-section (4) creates a legal fiction arid provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable, both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.
12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even a non cognizable case shall, in that situation, be treated as cognizable.”
12. Keeping in view the law laid down by the Apex Court, it is required to see the provisions of Section 210 of the Cr. P. C. in the factual context of the present case. It is the mandate of the sub-section (1) of Section 210 of the Cr. P. C. on the concerned Magistrate to stay the further proceedings of the inquiry or trial of a criminal case when in a case instituted otherwise than on a police report, i.e., the complaint case, it is made clear to the Magistrate, within the course of the inquiry or the trial held by him, that the investigation by the police is in progress in relation to the offences which is the subject matter of the inquiry or the trial held by him. In the present case, admittedly, for the same subject-matter of the Crl.(C) Case No. 66 of 2004 of the Court of learned Chief Judicial Magistrate, Imphal, the investigation by the police by registering the said criminal case i.e. said FIR Case No. 63(3) 04 IPS is in progress. The purpose of the staying the complaint case in exercising the power under sub-section (1) of Section 210 Cr. P. C. is to enable the Magistrate to have the benefit of police report which would be submitted after investigation of the case according to me. In this regard, the different High Courts in a catena of cases held where it was made to appear to the Magistrate during the course of the inquiry into the complaint that the investigation by the police was in progress in relation to the very offences but the Magistrate failed to follow the mandatory provisions under Section 210, Cr. P. C. and took the cognizance of the offence on the complaint made by the complainant, the said action of the Magistrate was improper. See (1998)1 Kant. L. J. 509 (sic), (1992)2 Cri L J 416 (Sic) (P & H) DB, 1985 All LJ 306, (1963) Cri LJ 62.
13. From the above discussions, I am of the considered view that the learned Chief Judicial Magistrate, Imphal was clearly in error in not staying the further proceeding/ trial of the Cri. (C) Case No. 66 of 2004 by refusing to take the recourse to sub-section (1) of Section 210 Cr. P. C. by passing the impugned judgment and order dated 22-6-2005 in Cri. (C) Case No. 66 of 2004. But this Court is accepting the ratio laid down by the Apex Court in the State of Bihar v. Murad Ali Khan which has been cited in the impugned judgment and order dated 22-6-2005. It appears that the learned Chief Judicial Magistrate, Imphal mis-appreciated the ratio laid down by the Apex Court in the State of Bihar v. Murad Ali Khan (supra) inasmuch as the law laid down by the Apex Court is that in a case where the cognizance of an offence against the “act” can only be taken by the Court only on the complaint of a statutory officers i.e. officers mentioned in Section 55 of the Wild Life Protection Act, 1972, the Magistrate could take cognizance of an offence for the said offence on the complaint made by the said statutory officers even if the police officer is investigating the case on a criminal case for the same incident; we may also remember that the Apex Court in a number of cases held that judgment is to be understood in the context of the fact of that case (See, Apex Court in Radha Krishna Agrawal v. State of Bihar, (1977)3 SCC 457 : AIR 1977 SC 1496, and the judgment and decision of the Apex Court is available as a precedent only if it decides the question of law. See, State of Punjab v. Surinder Kumar . The Apex Court in General Manager, Northern Railway v. Sarvesh Chopra held that the decision of the Supreme Court is only an authority for a proposition which it decides and proposes and should not be extracted from it that Court has not really decided. Such being the settled position of law, I are of the considered opinion that the ratio laid down by the Apex Court in State of Bihar v. Murad Ali Khan : 1989 Cri LJ 1005 (supra) is mis-appreciated by the learned Chief Judicial Magistrate, Imphal in passing the impugned judgment and order dated 22-6-2005. Accordingly, the impugned judgment arid order dated 22-6-2005 is set aside.
14. Now the question is how long the learned Chief Judicial Magistrate, Imphal is to stay the further proceeding of the trial of the Crl. (C) Case No. 66 of 2004 and whether the stay of further proceeding of Crl. (C) Case No. 66 of 2004 is to be continued till the police officer submitted a report under Section 173 of the Cr. P. C. for the said FIR Case No. 63(3) 04 IPS? The Orissa High Court in Padma Lochan Saha v. Lokanath Sethi reported in 1981 Cri LJ 189 held that the provisions for staying the proceeding with the complaint case under Section 210 of the Cr. P. C. is not to stay the complaint case indefinitely till the investigation in the police case is over or till the final report in the case, more so, when the concerned police officer does not act expeditiously in the matter and or does not submit his report under Section 210 Cr PC to the Court at an early date. In that case, the Orissa High Court is of the opinion that staying of the proceeding of the complaint case should only for a reasonable time. The ratio laid down by the Orissa High Court in Padma Lochan Saha v. Lokanath Sethi, 1981 Cri LJ 189 (supra) is followed in Dr. Kumudini Padhi v. Prasanta Kumar Manda reported in 1989 Cri LJ 1861, I am of the respectful agreement with the law laid down by the Orissa High Court that staying of further proceeding of the complaint case under sub-section (1) of Section 210 Cr PC shall only for a reasonable period. Keeping in view the peculiar factual matrix of the present case, I am of the considered opinion that reasonable time for staying the further proceedings of the Crl.(C) Case No. 66 of 2004 would “be 6 (six) months so as to enable the police could submit a report under Section 173 of the Cr. P. C. in the criminal case i.e., FIR Case No. 63(3) 04 IPS. In ease of failure on the part of the police to submit a police report under Section 173 of the Cr. P. C. for the said criminal case i.e. said FIR Case No. 63 (3)04 IPS within a period of 6(six) months from the date of order the learned Chief Judicial Magistrate, Imphal for staying the further proceeding of the trial of the Crl. (C) Case No. 66 of 2004 in faithful compliance of the judgment and order of this Court, the learned Chief Judicial Magistrate, Imphal shall proceed the trial of the Cri. (C) Case No. 66 of 2004.
15. To the extent, mentioned above, this criminal misc. application is allowed and the learned Chief Judicial Magistrate, Imphal shall pass necessary orders for staying further proceeding of the Cril. (C) Case No. 66 of 2004 in the manner indicated above. The parties are directed to appear before the learned Chief Judicial Magistrate, Imphal on 5-9-2005.