Allahabad High Court
Paras Gupta @ Swapnil Gupta And Another vs State Of Up And Another on 9 August, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:129065 Court No. - 76 Case :- APPLICATION U/S 482 No. - 21172 of 2024 Applicant :- Paras Gupta @ Swapnil Gupta And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Hitesh Pachori Counsel for Opposite Party :- G.A.,Geetam Singh,Kamlendra Tripathi,Vinod Kumar Mishra Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned counsel for opposite party no. 2/informant, learned A.G.A. for the State and the learned counsel for the informant.
2. This application under Section 482 Cr.P.C. has been filed for quashing of the entire criminal proceedings, including charge-sheet dated 06.10.2023 and cognizance/summoning order dated 04.03.2024, of Case No. 6682 of 2024 (State of U.P. Vs. Paras Gupta @ Swapnil Gupta & Another), arising out of Case Crime No.0103 of 2023 under Section 494, 120-B I.P.C., P.S.- Jaithra, District- Etah, pending in the court of Additional Chief Judicial Magistrate, Court No.18, Etah.
3. It has been submitted by learned counsel for the applicants that first information report of this case was registered under Section 494, 120B I.P.C. and after investigation, charge-sheet has also been submitted under Section 494, 120B I.P.C., whereas, investigation by the police for an offence under Section 494 I.P.C. is not permissible. It was further submitted that as per the provisions of Section 198 Cr.P.C., cognizance for an offence under Section 494 I.P.C. can only be taken on the complaint of the person aggrieved and in this case no such complaint has been filed, hence, the impugned proceedings are liable to be quashed.
4. Learned A.G.A. and learned counsel for opposite party no. 2/informant have opposed the application. Learned counsel for the informant submitted that after registration of the case it was the duty of in-charge of concerned police station to proceed investigation in accordance with law. Merely because the Magistrate has taken cognizance under Section 190(1)(b) Cr.P.C., the proceeding are not vitiated and the said case can be proceeded like a complaint case.
5. I have considered the rival submissions and perused the record.
6. So far the offence under Section - 494 I.P.C. is concerned, it is clear that section 198 Cr.P.C. mandates that no Court shall take cognizance of an offence punishable under Chapter-XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. The offence under section 494 IPC falls in chapter XX of IPC.
7. In case of Iftekhar Ahmad And Another Vs State Of U.P. And Anr, 2019:AHC:41391 the Co-ordinate Bench of this Court held as under:
"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.''
8. It is apparent from the case of Iftekhar (supra) that cognizance for offence under section 494 IPC can only be taken on a complaint made by aggrieved party. Similarly in the case of Ravindra Singh vs State of U.P. Through Prin. Secy. Home and Another (Application 482 No. 9012 of 2022), decided on 11.06.2024, this Court has again reiterated that cognizance for offence under section 494 IPC can only be taken on a complaint made by aggrieved party. The Court has held as under:
''It is evident that there is no concrete evidence of the alleged second marriage, and therefore, the entire proceedings initiated against the applicant under Section 494 I.P.C. lack merit and are an abuse of the legal process and as per Section 198 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 case can be filed by aggrieved person, which has not been done by the opposite party No.2 in the present case.
Hence it is clear that the Magistrate did not apply his mind before taking cognizance. Hence the cognizance is bad in eye of law and resultantly it is not sustainable.''
9. A Division Bench of This Court in case of Vikarant Sharma And Ors Vs State Of U.P. & Ors 2016:AHC:18599-DB, held that Section 494 I.P.C. deals with substantive offence of marrying again during life of husband or wife, whereas the procedure for redressal of grievance is provided under section 198 Cr.P.C. Sub clause (1) of Section 198 Cr.P.C. clearly provides that no Court shall take cognizance of an offence under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. Therefore, it is clear from Section 198 Cr.P.C. that a bar is imposed on the Court to take cognizance of an offence punishable under Section 494 IPC. The cognizance of for offence under section 494 IPC can only be taken on a complaint made by aggrieved party or any of her relatives mentioned in clause (c) of the proviso, or by any other person with the leave of the Court. It does not contemplate taking cognizance of the case on a police report/charge-sheet filed by the Police under Section 173(2) Cr.P.C.
10. In the instant matter, the informant has lodged the first information report under Section 494, 120B I.P.C., alleging that her marriage was solemnized with applicant no. 1 and out of that marriage, she has a six years old child. It was further alleged that while matrimonial case was pending between them, applicant no. 1 has performed second marriage with one Hemlata @ Kyara, without obtaining divorce from the informant. The police have investigated the case and charge-sheet was submitted under Section 494, 120B I.P.C. Thus, it is apparent that investigation for the offence under Section 494 IPC by the police as well as submission of charge-sheet for the offence under Section 494, 120B I.P.C. is against the provisions of law. The trial court has committed error by taking cognizance on the charge-sheet (police report) filed under Section 173(2) Cr.P.C. for the offence under Section 494, 120B I.P.C. From the above-referred case laws, it is apparent that the investigation for offence under Section 494 I.P.C. by the police is not permissible and similarly, the cognizance of the offence under Section 494 I.P.C. can only be taken on a complaint of person aggrieved. Admittedly, in the instant case no such complaint has been filed. As proceedings in respect of substantial offence under Section 494 I.P.C. are liable to be quashed, thus, separate proceedings under Section 120-B I.P.C. cannot be continued.
11. In view of the aforesaid, the impugned charge-sheet and cognizance-summoning order dated 04.03.2024, passed by the Additional Chief Judicial Magistrate, Court No.18, Etah as well as entire proceedings of the aforesaid case are hereby quashed.
12. However, the informant would be at liberty to file a complaint for offence under Section 494 IPC in accordance with law.
13. The application u/s 482 Cr.P.C. is allowed in above terms.
Order Date :- 9.8.2024 Imtiyaz/Anand