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2025 DIGILAW 6 (ALL)

Jitendra v. State of U. P.

2025-01-03

MANJU RANI CHAUHAN

body2025
JUDGMENT : Manju Rani Chauhan, J. 1. The applicants have preferred instant application under Section 482 Cr.P.C . challenging the charge sheet dated 10.04.2024, cognizance order dated 19.07.2024 passed by Chief Judicial Magistrate, Mathura and proceedings of Criminal Case No. 63822 of 2024, [State v. Jitendra and others] arising out of Case Crime No. 402 of 2023, under Section 494 and 120-B IPC, Police Station Jait, District Mathura. 2. Brief facts of the case are that a first information report, [FIR] was lodged by opposite party no. 2 on 30.09.2023 against 10 named persons including the applicants, under Sections 494 and 120-B IPC, alleging therein that marriage of applicant no. 1 was solemnized with opposite party no. 2 on 10.11.2016, according to Hindu rites and rituals. Later, without obtaining divorce from opposite party no. 2, applicant no. 1 has again solemnized his second marriage on 27.12.2022 with one Smt. Anju at District Ballabhgarh, Haryana. The applicant no. 6 was mediator in the aforesaid second marriage as performed by applicant no. 1 with Anju. After investigation, a charge sheet was submitted on 10.04.2024 and the court concerned has taken cognizance by order dated 19.07.2024, hence the present petition. 3. Learned counsel for the applicants submits that the learned Magistrate has overlooked the mandatory provisions of Section 198 of the Code of Criminal Procedure, 1973 , [ Cr.P.C .] which prohibits the court to take cognizance of an offence punishable under Chapter-XX of the Indian Penal Code, [IPC] (Offences relating to marriage), except upon the complaint made by some person aggrieved by the offence. He further submits that before proceeding with the investigation, no permission under Section 155 (2) Cr.P.C . was obtained by opposite party no. 2 nor by the Investigating Officer, hence, the entire proceedings are void and illegal. In support of his submissions, learned counsel for the applicants has relied upon a judgement of this Court in the case of Suraj Lal Jaiswal v. State of Uttar Pradesh, 2006 55 AllCriC 513 : 2006 4 AllLJ 605 . 4. It has further been argued by learned counsel for the applicants that in case the offence in question is non-cognizable, registration of FIR under Section 154 Cr.P.C . is bar. In context of non-cognizable offence, only NCR under Section 151 Cr.P.C . 4. It has further been argued by learned counsel for the applicants that in case the offence in question is non-cognizable, registration of FIR under Section 154 Cr.P.C . is bar. In context of non-cognizable offence, only NCR under Section 151 Cr.P.C . can be registered at the concerned police station, and permission of competent magistrate is mandatory for carrying out investigation of non-cognizable offences for which NCR is lodged. 5. Relying upon the judgement of the Apex Court in the case of Keshav Lal Thakur v. State of Bihar, 1996 0 Supreme (SC) 1694 : (1996) 11 SCC 557 : 1996 Supp 7 SCR 578 learned counsel for the applicants submits that the police is entitled to investigate into a non-cognizable offence, pursuant to an order of a competent Magistrate under Section 155 (2) Cr.P.C . In the present case, no such order has been passed, therefore, the cognizance order is bad in the eyes of law. 6. Stressing upon the aforesaid ground, learned counsel for the applicants prays that cognizance order and the proceedings of the case instituted against the applicants, may be quashed. 7. Learned A.G.A., on the other hand, could not dispute the legal position as argued by learned counsel for the applicants. However, hesubmits that a detailed discussion of legal position has been made by the court concerned in the order dated 19.07.2024, vide which the applicants have been summoned, therefore, the procedure as followed by the court concerned should have been in the manner as to be done in a complaint case. 8. I have heard Sri A.P. Mishra, learned counsel for the applicants, Sri Mayank Awasthi, learned Brief Holder for the State and perused the record. 9. Assailing the cognizance order and the proceedings of the case, under challenge, arguments have been advanced by learned counsel for the applicants in two fold: firstly, that charge sheet is not maintainable and cognizance can be taken by the Magistrate in view of Section 198 (1) Cr.P.C . Secondly, for non-cognizable offences NCR can be lodged, in which before proceeding with the investigation, permission under Section 155 (2) Cr.P.C . is mandatory. 10. Before carrying out a detailed discussion on the submissions made by learned counsel for the applicants, it would be appropriate to understand the provisions of Sections 2 (d) and Section 198 (1) Cr.P.C . which are thus: “2. is mandatory. 10. Before carrying out a detailed discussion on the submissions made by learned counsel for the applicants, it would be appropriate to understand the provisions of Sections 2 (d) and Section 198 (1) Cr.P.C . which are thus: “2. Definitions: (d) "complaint" 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. 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 authorised 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 495),[Subs. by Act 45 of 1978, sec. 17(i), for “section 494” (w.e.f. 18-12-1978)] 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),[Ins. by Act 45 of 1978, sec. 17(ii), (w.e.f. 18-12-1978)].” 11. From reading of the aforementioned provisions of Section 2 (d) and 198(1) Cr.P.C ., it is clear that no cognizance can be taken by the Magistrate in view of Section 198 (1) Cr.P.C . by Act 45 of 1978, sec. 17(ii), (w.e.f. 18-12-1978)].” 11. From reading of the aforementioned provisions of Section 2 (d) and 198(1) Cr.P.C ., it is clear that no cognizance can be taken by the Magistrate in view of Section 198 (1) Cr.P.C . for an offence punishable under Chapter-XX of IPC except upon a complaint made by some person aggrieved by the offence, thus the complaint should be made by an aggrieved person to the Magistrate by making oral allegations or moving an application, in writing, with a view to his taking action under the Code, that some person, known or unknown has committed an offence, whereupon the Magistrate shall follow the procedure laid down in Section 2 00 Cr.P.C . onwards but it does not include the police report i.e. a report under Section 173(2) Cr.P.C . 13. Be that as it may, in the explanation to Section 2 (d) of Cr.P.C ., a report by a police officer which discloses a non-cognizable offence shall be deemed to be complaint but this explanation is not applicable under Chapter XX of IPC, thus, there was no complaint in the present case hence chargesheet itself is not maintainable and the cognizance order, therefore, on the basis of such charge sheet is vitiated. 14. On perusal of the cognizance order, this Court finds that though the court concerned has noted that a complaint should have been filed,thus, treating the aforesaid as a complaint he should have followed the procedure as laid down under Sections 200 Cr.P.C . onwards. 15. Having gone through the submissions advanced by learned counsel for the parties and the legal proposition of law, this Court finds that while summoning the applicants the court concerned has treated the same as a complaint case but has not followed the procedure as required calling the complainant to record her statements under Section 2 00 Cr.P.C . and followed other procedure as required under a complaint case. Therefore, the order impugned dated 19.07.2024 is quashed to the extent that the case shall be treated as a complaint case and after issuing notice to opposite party no. 2 the court concerned shall proceed in accordance with law as required in a complaint case. 16. The parties are at liberty to move recall application before this Court, if they feel aggrieved by this order. 17. The application is accordingly partly allowed.