Ravindra Singh v. State of U.P. and Ors.) and judgement dated

2. Learned counsel for the applicant is present. Learned counsel for the respondent no.2 is neither present nor any request has been made on his behalf for adjournment of this case. Counter affidavit filed on behalf of Respondent No.2 is already on record.

3. By means of present application under Section 482 Cr.P.C. it has been prayed that this Hon'ble Court may kindly be pleased to quash the Chargesheet No. NIL/2013 dated 24.04.2013 as well as Bailable Warrant dated 15.03.2015 'State vs. Meena' in Case No.1126/2013, and further proceeding thereof arising out of N.C.R. No.1/2013, under Section 494 IPC, Police Station - Mahila Thana, District - Faizabad.

4. Learned counsel for the applicant has submitted that an N.C.R. dated 20.01.2013 has been lodged under Section 494 I.P.C. by the Respondent No.2 against the applicant Smt. Meena and co-accused Uma Shankar jaiswal i.e. her husband alleging therein that the husband has solemnized a second marriage with Smt. Meena i.e. the applicant.

5. Learned counsel for the applicant has submitted that the Court below cannot take cognizance and issue summons of an offence punishable under Chapter XX of I.P.C. as it is barred by Section 198 Cr.P.C. and the said submission has specifically been made in Para 11, 12 and 13 of the affidavit filed alongwith present application, which has not been denied in Para 27 and 28 of the counter affidavit filed on behalf of Respondent No.2, rather it has been replied that the contents of Para 11 of the affidavit related to the provisions as contained under Section 198 Cr.P.C. no comment is needed but rest of averments as stated in para under reply are incorrect and misleading.

6. It is further submitted that the trial court has committed patent illegality in taking the cognizance of offence under Section 494 I.P.C. on a police report after investigation as the same is barred by Section 198 Cr.P.C. as well as Section 2(d) Cr.P.C., hence taking of cognizance and issuing bailable warrant is without jurisdiction. In support of his submission learned counsel for the applicant has relied upon the judgements of this Court dated 11.06.2024 passed in Application U/s 482 No.9012 of 2022 (Ravindra Singh vs. State of U.P. and Ors.) and judgement dated 05.03.2019 passed in Crl. Misc. Appl. No.17231 of 2006 (U/s 482 Cr.P.c.) (Iftekhar Ahmad and Ors. vs. State of U.P. and Ors.).

7. Learned A.G.A. has very fairly submitted that as per Section 198 Cr.P.C the magistrate cannot take cognizance on the basis of the N.C.R. and the chargesheet filed by the police filed under the sections mentioned under Chapter XX of I.P.C. The Respondent No.2 can agitate her grievance before the Magistrate.

8. After hearing learned counsel for the parties and going through the records of the case, the position which emerges out in the present case is that an N.C.R. lodged under Section 494 under Chapter XX of I.P.C. by Opposite Party no.2 against the applicant, in which the chargesheet has been filed after investigation and in pursuance thereof cognizance has been taken and bailable warrant has been issued, which is without jurisdiction and in violation of Section 198 Cr.P.C. For the offence under Section 494 I.P.C., which can only be proceeded with on a complaint made by the aggrieved persons, not through a first information report / NCR to the police. As provided under Section 198 Cr.P.C. which is quoted hereinbelow: "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) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf; (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." Hence it is clear that the Magistrate did not apply his mind before taking cognizance and issuing the bailable warrant.

9. 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."

10. 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.

11. 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.

12. Thus the present case is covered by categories no. 4 and 6 of the above mentioned law laid down by the Hon'ble Supreme Court.

13. In view of the discussion made hereinabove and judgement and order passed by this Court, as narrated above, the Chargesheet No. NIL/2013 dated 24.04.2013 as well as Bailable Warrant dated 15.03.2015 'State vs. Meena' in Case No.1126/2013, and further proceeding thereof arising out of N.C.R. No.1/2013, under Section 494 IPC, Police Station - Mahila Thana, District - Faizabad are quashed.

14. The application under Section 482 Cr.P.C. is, accordingly, allowed. Order Date :- 4.7.2025 S. Kumar SANTOSH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

2. Learned counsel for the applicant is present. Learned counsel for the respondent no.2 is neither present nor any request has been made on his behalf for adjournment of this case. Counter affidavit filed on behalf of Respondent No.2 is already on record.

3. By means of present application under Section 482 Cr.P.C. it has been prayed that this Hon'ble Court may kindly be pleased to quash the Chargesheet No. NIL/2013 dated 24.04.2013 as well as Bailable Warrant dated 15.03.2015 'State vs. Meena' in Case No.1126/2013, and further proceeding thereof arising out of N.C.R. No.1/2013, under Section 494 IPC, Police Station - Mahila Thana, District - Faizabad.

4. Learned counsel for the applicant has submitted that an N.C.R. dated 20.01.2013 has been lodged under Section 494 I.P.C. by the Respondent No.2 against the applicant Smt. Meena and co-accused Uma Shankar jaiswal i.e. her husband alleging therein that the husband has solemnized a second marriage with Smt. Meena i.e. the applicant.

5. Learned counsel for the applicant has submitted that the Court below cannot take cognizance and issue summons of an offence punishable under Chapter XX of I.P.C. as it is barred by Section 198 Cr.P.C. and the said submission has specifically been made in Para 11, 12 and 13 of the affidavit filed alongwith present application, which has not been denied in Para 27 and 28 of the counter affidavit filed on behalf of Respondent No.2, rather it has been replied that the contents of Para 11 of the affidavit related to the provisions as contained under Section 198 Cr.P.C. no comment is needed but rest of averments as stated in para under reply are incorrect and misleading.

6. It is further submitted that the trial court has committed patent illegality in taking the cognizance of offence under Section 494 I.P.C. on a police report after investigation as the same is barred by Section 198 Cr.P.C. as well as Section 2(d) Cr.P.C., hence taking of cognizance and issuing bailable warrant is without jurisdiction. In support of his submission learned counsel for the applicant has relied upon the judgements of this Court dated 11.06.2024 passed in Application U/s 482 No.9012 of 2022 (Ravindra Singh vs. State of U.P. and Ors.) and judgement dated 05.03.2019 passed in Crl. Misc. Appl. No.17231 of 2006 (U/s 482 Cr.P.c.) (Iftekhar Ahmad and Ors. vs. State of U.P. and Ors.).

7. Learned A.G.A. has very fairly submitted that as per Section 198 Cr.P.C the magistrate cannot take cognizance on the basis of the N.C.R. and the chargesheet filed by the police filed under the sections mentioned under Chapter XX of I.P.C. The Respondent No.2 can agitate her grievance before the Magistrate.

8. After hearing learned counsel for the parties and going through the records of the case, the position which emerges out in the present case is that an N.C.R. lodged under Section 494 under Chapter XX of I.P.C. by Opposite Party no.2 against the applicant, in which the chargesheet has been filed after investigation and in pursuance thereof cognizance has been taken and bailable warrant has been issued, which is without jurisdiction and in violation of Section 198 Cr.P.C. For the offence under Section 494 I.P.C., which can only be proceeded with on a complaint made by the aggrieved persons, not through a first information report / NCR to the police. As provided under Section 198 Cr.P.C. which is quoted hereinbelow: "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) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf; (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." Hence it is clear that the Magistrate did not apply his mind before taking cognizance and issuing the bailable warrant.

9. 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."

10. 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.

11. 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.

12. Thus the present case is covered by categories no. 4 and 6 of the above mentioned law laid down by the Hon'ble Supreme Court.

13. In view of the discussion made hereinabove and judgement and order passed by this Court, as narrated above, the Chargesheet No. NIL/2013 dated 24.04.2013 as well as Bailable Warrant dated 15.03.2015 'State vs. Meena' in Case No.1126/2013, and further proceeding thereof arising out of N.C.R. No.1/2013, under Section 494 IPC, Police Station - Mahila Thana, District - Faizabad are quashed.

14. The application under Section 482 Cr.P.C. is, accordingly, allowed. Order Date :- 4.7.2025 S. Kumar SANTOSH KUMAR High Court of Judicature at Allahabad, Lucknow Bench