Allahabad High Court
Ehtesham Khan @ Shamsham Khan vs State Of U.P. And Another on 16 September, 2022
Author: Ajai Tyagi
Bench: Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 16503 of 2022 Applicant :- Ehtesham Khan @ Shamsham Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- R S Dubey,Savita Dubey Counsel for Opposite Party :- G.A. Hon'ble Ajai Tyagi,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 charge sheet dated 12.12.2021, cognizance order dated 05.04.2022 and the entire proceedings of Case Crime No.200 of 2021 (State of U.P. Vs. Ehtesham Khan @ Shamsham Khan), under Section 494, 504, 506 I.P.C. and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019, Police Station Kotwali, District Gorakhpur.
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 18.03.2018. After some time of marriage, applicant started torturing the opposite party no.2 and since last three years, she is living with her parents. It is also submitted that applicant claims that he has divorced the opposite party no.2, while it is not so and he has solemnized second marriage with other lady namely, Heena at Varanasi.
Learned counsel for the applicant has further submitted that F.I.R. was registered under Section 498-A, 323 and 494 I.P.C. After investigation, charge sheet is also filed under Section 494, 504, 506 I.P.C. and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 2019. Learned Magistrate has taken cognizance on the charge sheet and summoned the accused 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 Section 504, 506 I.P.C. and Section 3/4 of Muslim Women (Protection of Rights on Marriage) Act, 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 offences 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 5.4.2022. 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 05.04.2022 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.
Order Date :- 16.9.2022 P.S.Parihar