Gauhati High Court
Page No.# 1/4 vs The State Of Assam on 27 June, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010149562024
2025:GAU-AS:8754
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./876/2024
DEBAJIT DEORI
S/O LATE DIGAMBAR DEORI
R/O MORAN PEOLI NAGAR,
P.O. AND P.S. MORANHAT
DIST. DIBRUGARH, ASSAM
PRESENT ADDRESS- HOUSE NO. 15, MADHAB PATH BYE LANE NO. 2,
SAWKUCHI, GORAMARA
P.S. BASISTHA, GUWAHATI-781040, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
2:HELENA HEREH
D/O UNKNOWN
R/O B-5
bLOCK-II
SHANTI PLAZA
JATIA
KAHILIPARA
P.S.-DISPUR
KAMRUP (M)
ALSO RESIDING AT CHABOTI
P.S.-NORTH LAKHIMPUR
DIST.-LAKHIMPUR
ASSAM
PIN-787051
Advocate for the Petitioner : MR. A M BORA, MS. C CHOUDHURY,MR. D K BAIDYA
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Advocate for the Respondent : PP, ASSAM, MR. N A MAZARBHUIYA (R-2),MR. N Z
CHOUDHURY (R-2),MR. A R BHUYAN (R-2)
:: PRESENT ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioner : Mr. A.M. Bora,
Senior Advocate.
Mr. D.K. Baidya,
Advocate.
For the Respondent No.1 : Mr. Bhaskar Sarma,
Addl. P.P., Assam.
For the Respondent No.2: Mr. A. R. Bhuyan,
Advocate.
Date of Hearing : 24.06.2025.
Date of Judgment : 27.06.2025.
JUDGMENT AND ORDER (CAV)
Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. D.K. Baidya, learned
counsel appearing for the petitioner. Also heard Mr. Bhaskar Sarma, learned Addl.
Public Prosecutor, Assam representing Respondent No.1 as well as Mr. A.R. Bhuyan,
learned counsel representing Respondent No.2.
2. This is an application under Section 528 of the BNSS, 2023 challenging the order
dated 23.04.2024 passed by the learned Special Judicial Magistrate, Kamrup(M) in
Dispur P.S. Case No.2189/2022.
3. On 28.09.2022, the Respondent No.2 had lodged an FIR before police stating
that she was married to the present petitioner in the year 2008. After 2 ½ years of
marriage, the Respondent No.2 became pregnant and at that time she came to know
that before her husband had married her, he already had a married wife.
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4. After that, the relationship between the petitioner and the Respondent No.2
soured. He did not like to be known as a father of the child of the Respondent No.2.
At one point of time, to be precise on 26 th August the petitioner allegedly sent some
goons to threaten the Respondent No.2 of dire consequences.
5. Police registered the FIR as Dispur P.S. Case No.2189/2022 under Sections 498A,
494 and 506 of the Indian Penal Code.
6. In the meantime, the petitioner preferred the Criminal Petition No.1345/2022
before this Court. This Court had quashed the proceedings under Section 498A of the
Indian Penal Code. For the offences under Sections 494 and 506 of the Indian Penal
Code, this Court advised police authorities to proceed in accordance with the
procedure as laid down by law.
7. Mr. Bora has submitted that under Section 198 of the Code of Criminal Procedure
(Section 219 of the BNSS, 2023) no case can be registered by police under Section
494 of the Indian Penal Code. Section 198 of the Code prohibits courts from taking
cognizance of an offence punishable under Chapter 20 of the Indian Penal Code
except upon a complaint made by some person aggrieved by the offence. Proviso (c)
of Section 198 of the Code, provides that a person aggrieved by an offence punishable
under Section 494 of the Indian Penal Code 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 any other person related to
her by blood, marriage or adoption.
8. I have considered the submissions made by the learned counsel of both sides.
9. Sections 494 and 506 of the IPC are non-cognizable offences. Therefore, under
Section 155(2) of the CrPC, police moved the learned Special Judicial Magistrate. By
the impugned order dated 23.04.2024, the learned Magistrate allowed the
Investigating Officer to investigate the case. The said order is devoid of any reasons.
The learned Magistrate did not show any reasons as to why the prayer of the police
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was allowed.
10. It is a settled law that insofar as Section 494 of the Indian Penal Code is
concerned, the provision is very clear that no case could be registered by police and
that the parties alleging bigamy will have to file a private complaint under Section 200
of the CrPC (Section 223 of the BNSS, 2023). The aforesaid view of this Court is
applicable in case of Section 506 of the Indian Penal Code.
11. Since, Section 494 of the IPC is a non-cognizable offence and has to be filed by
the aggrieved wife, it can be entertained only by way of a private complaint under
Section 223 of the BNSS, 2023. The same view is applicable for Section 506 of the
Indian Penal Code also.
12. For the aforesaid reasons, the impugned order dated 23.04.2024 is bad in law
and stands set aside accordingly. The Respondent No.2 has to file a private complaint
petition before the appropriate court to seek relief.
13. Interim order passed earlier stands vacated.
With the aforesaid direction, the Criminal Petition is disposed of.
JUDGE
Comparing Assistant
