Allahabad High Court
Sanjay Kumar & Others vs State Of U.P. & Others on 17 April, 2015
Bench: Pramod Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 16
AFR
Case :- CRIMINAL REVISION No. - 3806 of 2006
Revisionist :- Sanjay Kumar & Others
Opposite Party :- State Of U.P. & Others
Counsel for Revisionist :- Rajeev Sisodia,Atul Sisodia
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Pramod Kumar Srivastava J.
1.
List has been revised.
2.Heard Sri D.K.Srivastava, Advocate holding brief of Sri Rajeev Sisodia, learned AGA and perused the record.
3.Smt. Vinod Kumari, applicant has moved an application dated 17.06.2006 before court of ACJM, III, Bijnor with the averement that her husband Sanjay Kumar is planning to solemnize second marriage without divorcing her and suit of divorce is pending in the Court. The other relatives of her husband are helping in his proposed marriage, therefore, case for such offence be registered and investigated. After hearing on this application under Section 156(3) Cr.P.C., Court below had allowed the same and passed order dated 11.07.2006 and directed the police to register the case and investigate the matter. This impugned order dated 11.07.2006 has been challenged in the present revision.
Section 156 CrPC reads as under:
"156. Police officer's power to investigate the cognizable cases.
(1)Any officer incharge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power enquire into or try under the provision of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above-mentioned."
4. Police can investigate into matters relating to commission of 'cognizable offences' brought to its notice under section 154 CrPC. Officer-in-charge of police station has power to investigate U/S 156(1) in such case. Magistrate has power to take cognizance u/s 190 CrPC on receiving the 'complaint'. Thus the matter relating to section 156 (3) relates to power of Magistrate to order investigation by police in matters relating to cognizable offences brought before it through complaint regarding the matters for which the Magistrate is empowered.
5. Such jurisdiction of a Magistrate to dispose of application u/s 156 (3) CrPC cannot be exercised arbitrarily and cannot be exercised regarding the matters not within his jurisdiction or outside his territorial or legal jurisdiction.
6. Chapter XIV of the Cr.P.C., 1973 prescribes conditions requisite for initiation of proceedings. This chapter prescribes special directions and restrictions for certain offence. Section 198 of code relates to prosecution for offence against marriage. The relevant provisions of this sections regarding offence of bigamy are as under:
"198. Prosecution for offences against marriage. (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that-
(a) - - - - ;
(b) - - - - ;
(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860) is the wife, 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 person related to her by blood, marriage or adoption."
7. The allegation in application under Section 156 (3) Cr.P.C. in present matter relates to attempt of offence of bigamy punishable under Section 494 of IPC. Section 198 Cr.P.C. bars the jurisdiction of any Court to take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence. If such complaint is made in accordance with the provisions of Section 198 Cr.P.C., then procedure to be followed will be that of complaint case as prescribed in Chapter XV and XIX of the Cr.P.C. cognizance of such offence including offence of bigamy under Section 494 IPC cannot be taken by the Court on police report. Such cognizance can only be taken after applying procedure for complaint case. Therefore, the Magistrate has no power to pass order under Section 156(3) Cr.P.C. to direct the police to register and investigate the case or to take cognizance on the basis of such police report. Therefore, the impugned order dated 17.06.2006 passed by learned ACJM, III, Bijnor is erroneous and without jurisdiction. So, this revision is allowed and the impugned order dated 11.07.2006 is set aside.
Order Date :- 17.4.2015
Sanjeev
