Allahabad High Court
Iftekhar Ahmad And Another vs State Of U.P. And Another on 5 March, 2019
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 46
Case :- APPLICATION U/S 482 No. - 17231 of 2006
Applicant :- Iftekhar Ahmad And Another
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Mohd. Afzal
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Virendra Kumar Srivastava,J.
1. The instant application under Section 482 Code of Criminal Procedure 1973 (Code) has been filed for quashing the charge-sheet no. nil of 2004, dated 18.4.2005, U/s 494 Indian Penal Code (IPC), Police Station Nagina Dehat, District Bijnore as well as criminal proceedings of Criminal Case No. 1410 of 2005 (State vs. Iftekhar Ahmad), U/s 494 of IPC, pending before ACJM, Nagina Dehat, Bijnor.
2. Heard learned counsel for the applicants Sri Mohd. Afzal and Sri Anirudh Sharma, learned AGA for the State. None is present on behalf of the respondent no. 2.
3. From perusal of material on record, it transpires that respondent no. 2 Some Dutt Sharma lodged First Information Report (FIR) at P.S. Nagina Dehat, District Bijnor with an allegation that Iftekhar Ahmad (applicant no. 1) and his uncle Jahid Husain had enticed away his niece Smt.Deep Sikha Sharma (applicant no. 2). The Investigating Officer, during investigation recorded the statement of victim Smt. Deep Sikha Sharma (applicant no. 2), who stated that she had voluntarily gone to Delhi and applicant no. 1 Iftekhar Ahmad had no concern with her. It was further discovered that Smt. Deep Sikha Sharma (applicant no. 2) is legally wedded wife of one Sanjay Sharma and is mother of two sons. The Investigating Officer after investigation found that the allegation of kidnapping of the applicant no. 2 was false but found that the offence of bigamy is made out as Deep Shikha Sharma (applicant no. 2) being legally wedded wife of one Sanjay Sharma again married with Iftekhar Ahmad (applicant no. 1) and filed a charge-sheet against applicants under Section 494 IPC. Learned Magistrate after taking the cognizance noted on the charge-sheet as below.
Seen and register the cognizance taken.
S.D.
A.C.J.M.
23.12.2005
4. Aggrieved by the aforesaid order, applicant no. 1 Iftekhar Ahmad and applicant no. 2 Smt. Deep Sikha Sharma have filed this application.
5. Learned counsel for the applicants submits that the offence under Section 494 IPC is non-cognizable. According to Section 198 (1) (b) of the Code, such cognizance can be taken only on the complaint filed by the person authorized under the said Section. Learned Magistrate cannot take the cognizance of such offence on police report. Hence, the order passed by the learned Magistrate is against the provision of law and impugned order as well as criminal proceedings is liable to be quashed.
6. Learned AGA supporting the impugned order has submitted that the applicants can agitate their grievance at appropriate stage before learned Magistrate. The impugned order passed by the learned Magistrate cannot be quashed at this stage.
7. Section 494 IPC is an offence of bigamy which is covered under Chapter XX of IPC. Section 198 of the Code provides that in matrimonial offences as provided under Chapter XX of the IPC, a prosecution can be launched only on the complaint made by the person aggrieved as enumerated in Sec. 198(1) and 198(2) of the Code. Relevant provision of Section 198(1) and 198(2) of the Code are quoted as under:-
S. 198 (1)-"No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon an 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, with the leave of the Court, by any other person related to her by blood, marriage or abduction".
(2)- "For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf."
8. It is also pertinent to note at this stage that Section 2(d) of the Code of Criminal Procedure defines the complaint which means:-
"Any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
9. Thus it is clear that cognizance of offence U/s 494 IPC can be taken only on the complaint filed by the aggrieved person referred U/s 198(1) and (2) of the Code who may be husband or wife and if wife is unable to file complaint, 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, with the leave of the Court, by any other person related to her blood, marriage or abduction. It is also clear from Section 2 (d) of the Code that police report cannot be treated as complaint.
10. In the instant case, F.I.R. was filed by the uncle of the applicant no. 2 (respondent no. 2) and the cognizance has been taken on police report submitted by the Investigating Officer. Neither Investigating Officer not respondent no. 2 Some Dutt Sharma, uncle of the applicant no. 2 can be termed as aggrieved person in view of provision of Section 198 of the Code. Further they also cannot be treated as complainant because in this case, no statement as required under Section 200 or 202 of the Code has been recorded by the concerned Magistrate.
11. It is settled principle of criminal law that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings or where there is a specific provision in the Code or the concerned Act, provide efficacious redress for the grievance of the aggrieved party the criminal proceedings must be instituted and continued according to the provision of the Code or concerned Act and criminal proceedings instituted or continued in violation of the provision of Code or concerned Act cannot be continued.
12. Hon'ble Supreme Court in (State of Harayana vs. Chaudhri Bhajanlal and Ors.) AIR 1992 SC 604:-
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the ac- cused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justification and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.
13. Thus the present case is clearly eclipsed and covered by categories no. 4 and 6 of the above mentioned law laid down by the Supreme Court.
14. In addition to above, it is also pertinent to note at this juncture that the application for quashing the impugned order as well as criminal proceeding pending before the trial court has been filed before this court by applicant no. 1 Iftekhar Ahmad and the applicant no. 2 Smt. Deep Shikha Sharma who are accused in the impugned charge-sheet. It means that both of them have no grievance with each other.
15. Thus it is clear that learned Magistrate has taken the cognizance in the aforesaid case in violation of specific provision as provided in Sec. 198 read with Section 2(d) of the Code without applying judicial mind and the criminal proceedings in criminal case no. 1410 of 2005 (State vs. Iftekhar Ahmad) U/s 494 IPC cannot be allowed to continue.
16. In view of the foregoing discussion and law laid down by the Apex Court in (State of Harayana vs. Chaudhri Bhajanlal and Ors.) AIR 1992 SC 604 the impugned charge-sheet as well as the order taking cognizance of the offence by learned Magistrate and all consequential proceeding of the said case against the applicants are hereby quashed.
17. The application U/s 482 Cr.P.C. stands allowed.
18. A copy of this order be supplied to concerned lower court for necessary information and compliance.
Order Date :- 05.03.2019
Saurabh
