Allahabad High Court
Avinash @ Pinto vs State Of U.P. And Another on 5 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- APPLICATION U/S 482 No. - 11625 of 2023 Applicant :- Avinash @ Pinto Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shravan Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The present application has been filed with a prayer to quash the cognizance taking order dated 27th October, 2021 and the entire proceedings of Criminal Case No. 1978 of 2022 (Old No. 649 of 2021) (State Vs. Avinash @ Pinto), arising out of Case Crime No. 110 of 2021, under Sections 494 and 506 I.P.C., Police Station-Chandinagar, District-Baghpat.
Learned counsel for the applicant has submitted that the First Information Report was lodged by opposite party no.2 with the averments that marriage of opposite party no.2 was solemnized with applicant on 27.11.2000. After some time of marriage, the relationship between the two (husband and wife) became strained, a case was lodged by opposite party no.2 against the applicant for demand of dowry and thereafter the applicant thrown out opposite party no.2 from his house due to which she started living at another place, where the applicant came and said to keep her along with him. From the wedlock of the applicant and opposite party no.2, a male child was born, who also lives with opposite party no.2. It is also alleged in the FIR that applicant used to visit the place of opposite party no.2 and beat her and his son and also threat to kill them. It is also alleged that the applicant without divorcing opposite party no.2 has solemnized second marriage with other lady.
Learned counsel for the applicant has further submitted that after the registration of F.I.R. the investigation proceeded and charge-sheet has been submitted against the applicant under Section 494 and 506 I.P.C. On submission of the same, the concerned Magistrate has taken cognizance and summoned the accused (applicant) for trial.
Contention of learned counsel for the applicant is that as per Section 198 of Cr.P.C., First Information Report cannot be lodged for the offence of bigamy under Section 494 I.P.C. and for the alleged offence only complaint can be filed by aggrieved person. Learned Magistrate did not apply judicial mind at the time of taking cognizance for the offence under Section 494 I.P.C. Cognizance and entire proceedings are unlawful which vitiates the entire proceedings of the case, therefore, charge sheet and entire proceedings be quashed.
Learned A.G.A. has opposed the prayer for quashing the entire proceedings of the case as well as charge sheet by contending that apart from the offence of bigamy under Section 494 I.P.C. Learned Magistrate has taken cognizance under Sections 494 and 506 I.P.C., therefore, entire proceedings cannot be quashed.
Perusal of record goes to show that First Information Report was lodged for the offence under Section 494 I.P.C. also along with other offences. Charge sheet is also filed under Section 494 I.P.C. along with other offence i.e. Section 506 I.P.C. by the Investigating Officer and Magistrate has taken cognizance for the offence including the offence under Section 494 I.P.C.
Section 494 IPC is mentioned under chapter 20 of IPC and offence punishable under Chapter 20 of IPC shall be taken cognizance by the court only on the basis of complaint made by some person aggrieved by offence, as provided under Section 198 Cr.P.C. which is 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)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 1 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 2 , or, with the leave of the Court, by any other person related to her by blood, marriage or adoption."
In this way, it is apparent that learned magistrate has not applied its judicial mind while taking cognizance of the offences by order dated 27th October, 2021. The order of cognizance cannot be said to be lawful according to the provisions of section 198 Cr.P.C., therefore, it cannot sustain and is liable to be set aside.
Accordingly, order dated 27th October, 2021 is hereby set-aside and learned Magistrate is directed to pass order afresh on the basis of material on record as per law.
Accordingly, the present application is finally disposed of.
(Shiv Shanker Prasad, J.) Order Date :- 5.4.2023 Sushil/-