Delhi District Court
State vs Nishikant Singh on 5 December, 2015
IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI
SC No.143/15
FIR No. 416/12
State vs Nishikant Singh
PS Vasant Vihar
U/s 376/494 IPC
ORDER ON CHARGE
1. The present charge sheet was filed on the complaint made by the prosecutrix
"SS" (assumed name 'SS' with a view to conceal her identity) for the offence
punishable u/s 376 and 494 of IPC.
2. Before discussing in details the facts of the case, three dates are important
which is crucial for the purpose of determination of the commission of offence.
The first date is 26.10.2011 when it has been alleged in the complaint that
marriage was solemnized between the prosecutrix and accused secretly at the
govt. flat of the accused. Though, the said marriage was never recognized
socially by the accused giving rise of making complaint by 'SS' against the
accused. Second date is 21.02.2012 when the accused got married with other
lady "M" (assumed name 'M' with a view to conceal her identity) and to maintain
her dignity and said marriage was registered with the office of Registrar, Pune,
Maharashtra. The third date is 26.03.2012, when according to the prosecutrix
'SS' the accused got married again with her in Sanatan Dharam Mandir at S-
Block, Greater Kailash-2, New Delhi in presence of family members and close
friends of both the parties but by concealing the factum of marriage by the
accused with 'M'.
3. In this back ground, the brief facts unfolding the prosecution case are that the
complainant and the accused came to know with each other over Facebook in
the month of December, 2010 through mutual friends and a friendship
developed between them. After sometime, they started talking with each other.
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 1 of 16
Thereafter, in the month of March, 2011, they met with each other where
accused expressed his feelings of love and proposed the prosecutrix to marry.
Initially, the said proposal was refused by the prosecutrix. But after few
meetings, when accused kept on repeating his proposal, prosecutrix told the
accused that in case accused is keen to marry her, he should talk to his parents
to approach her parents to discuss the proposal. Then accused told that he
would talk to his parents but it is not possible at the time as his father was in jail
under allegations of murder. He further assured that once the things settle he
would ask his parents to approach the parents of prosecutrix. On such
assurance, courtship started. During the courtship, accused tried to get physical
with prosecutrix but she stopped him and made it clear that any physical
relationship between them will be possible only after they got married. During
this period, intimacy grew between accused and prosecutrix and accused
succeeded in winning the trust of the prosecutrix.
4. It has been further alleged that in the month of June, 2011, accused met the
prosecutrix and told her that he had discussed their relationship with his parents
but his family was not interested because of the fact that he was a civil servant
and she had just cleared IFS and was in a position to earn huge dowry by virtue
of his status and reputation and therefore, his family was not inclined to get him
married with prosecutrix. However, whenever the complainant/prosecutrix tried
to end the relationship with accused, he requested and persuaded her not to do
so and assured that he will marry her at any cost and also assured that
ultimately it was his wish that would prevail in the house and the things will settle
by passage of time. To assure the prosecutrix about his intentions to marry her,
on 08.07.2011, accused came to Shanidev Mandir Kalkaji, Delhi and the "Roka"
Shagun was performed by the pandit of the temple. In the said ceremony, the
complainant's mother gave the accused a diamond ring, a silver coin and
Rs.21,000/- cash in as "Shagun" which was accepted by the accused. In return,
accused also gave a gold ring studded with diamond. Since, the "Roka"
ceremony was completed, the trust and feeling of security was infused in the
mind of the prosecutrix. However, it was matter of surprise as only after two
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 2 of 16
weeks when on 24.07.2011, the prosecutrix came to know that accused was still
entertaining marriage proposal from other people and on questioning, accused
admitted that his family was considering the proposal of a girl named 'M' but
assured the prosecutrix to marry her and no one else and he will convince his
family members.
5. It has been further alleged that on 26.10.2011, the date discussed in the opening
paragraph, the accused called the prosecutrix to his house allotted by his office
on Diwali eve and when the prosecutrix reached at his house, accused tried to
get intimate with her against her wishes and consent. However, the prosecutrix
resisted and refused to submit herself and told that any such relationship would
be possible only after their marriage. Then accused told that since "Roka
Shagun" was performed, she should be rest assured that he will marry her but
prosecutrix refused his sexual advances. Upon refusal, accused got infuriated
and said that he would marry her right now so as to get her assured of his
promise to marry and went out looking for priest. He returned within an hour with
a priest who solemnized the marriage of the prosecutrix with the accused at his
residence in the night of 26.10.2011 itself. All the necessary and important
Hindu rites and rituals to the knowledge of the complainant with regard to the
marriage were performed. But the prosecutrix was not satisfied because the
marriage was performed in secrecy and nobody from either family witnessed the
marriage. However, accused convinced that their marriage was complete and he
will accept the marriage before anybody at any place and convinced the
prosecutrix that after sometime he will get married socially and formally in the
presence of their family and friends once his family accepts them. Accused
again tried to have physical relationship on the pretext of being her husband and
though initially prosecutrix resisted saying she wanted her parents' blessings
before proceeding with the relationship but ultimately in the same night accused
established physical intimacy forcibly under the garb of marriage and to
complete marriage in all respects. No further protest was made by the
prosecutrix as she believed that she was already married and this being part of
the matrimonial accord and duty towards her husband. However, after
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 3 of 16
consummation of the marriage, the prosecutrix started insisting the accused for
registration of marriage with the Registrar but accused kept on delaying though
he used to treat the prosecutrix as his legally wedded wife. The prosecutrix and
accused decided to live together and accused shifted to family quarters from his
bachelor quarter where the complainant on the request of accused, performed
the 'griha pravesh puja'. In her excitement as newly wedded wife, the
complainant brought with her 4 gold bangles, 2 gold chains, 2 heavy necklace of
gold and panna, 1 diamond ring, 1 emrald ring and Rs.2 lacs out of her own
saving to decorate her new house. Even the accused also requested the
prosecutrix to lend a sum of Rs.10 lacs and promise to return the same from his
salary, which was arranged by the prosecutrix by requesting her family members
and friends. The accused and the prosecutrix cohabited in the same house as
husband and wife till November, 2011.
6. It has been further alleged that in the month of December, 2011, accused went
to Mumbai for some official training and from where he went to Pune to the
house of 'M'. Prosecutrix strongly objected to this act. Thereafter, accused
stopped entertaining her calls. After return to Delhi, the attitude of the accused
was completely changed and he informed the prosecutrix that he does not want
to continue with the relationship as he wanted a smooth life and his marriage
with her was not paying anything whereas if he marry 'M', he would get huge
dowry that would settle the problems that he was facing in his life. Upon
continuous insistence of the prosecustrix, the accused took the prosecutrix to his
parents but she was surprised at the manner in which the parents of the
accused family started questioning the complainant about her financial status
and expecting dowry worth crores of rupees. They refused to get his
son/accused married with the prosecutrix because of the dowry. Even the
accused did not utter a word regarding his marriage with the prosecutrix in front
of the parents. Even on pointing by the prosecutrix, accused blatantly refused
recognizing his marriage. Seeing distraught and shocked behaviour by the
accused, the prosecutrix returned to her parents' home. In January, 2012, after
going to Patna, accused started ignoring the complainant and even stopped
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 4 of 16
responding her calls. On 13.01.2012, the accused called the prosecutrix and told
her that his parents were pressurizing him to marry with 'M'. He further stated
that his parents will never accept the prosecutrix as daughter-in-law so it would
be better that they should end their relationship. However, prosecustrix pleaded
for not to spoil her life but accused has flatly refused to accept his marriage with
her and told that such illusionary marriage would not stop him from marrying the
girl whom his parents have chosen for him.
7. After returning to Delhi, accused started avoiding the complainant and told that
he married her only to fulfill his lust and no more interested in continuing with the
relationship. All the requests of the prosecutrix gone in vain. Finally, the
prosecutrix contacted brother of 'M' and informed about the marriage of accused
and other relative but they flatly refused. When all her efforts to establish her
marriage with the accused failed, on 10.03.2012, the prosecutrix lodged a
complaint with PS Vasant Vihar, Delhi. On 16.03.2012, the accused made a call
and apologized for his conduct and promise not to marry with any other girl and
was ready to marry with the complainant socially. The prosecutrix and accused
finally met on 21.03.2012 in CAW Cell, Nanakpura, Delhi and it was resolved
through IO that accused would again go through the entire marriage ceremony
with the complainant socially and accept her as his legally wedded wife. As
stated in opening paragraph, the marriage ceremony was solemnized on
26.03.2012 between accused and prosecutrix at Sanatan Dharam Mandir at S-
Block GK-2, New Delhi in presence of close friends and relatives of both the
parties. Even accused gave in writing that he was sorry for his guilty and he
would treat the prosecutrix as his legally wedded wife. Though, he was well
aware at that time that he was already married to 'M'. Accused started
pressurizing the prosecutrix to withdraw the complaint from CAW Cell but
proseuctrix did not agree then accused gave beatings to her. However, the
complaint was put on hold by the CAW Cell and when on 15.04.2012, the
prosecustrix called the accused, he did not pick up the phone. On 16.04.2012,
the prosecutrix went to the house of the accused at Ber Sarai but he was not
there. Then she met his parents and relatives who were present there and
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 5 of 16
informed them about the entire story but they humiliated her and asked her to
forget about any marriage. On 18.04.2012, the complainant met the accused
and asked about his behaviour then he told that he can not live with her without
withdrawing of the complaint. Even after being socially married on 26.03.2012,
the accused never took the prosecutrix to his govt. alloted house at Vasant
Vihar. When the prosecutrix used to ask about the reasons, accused used to tell
that the relative of 'M' will cause harm as he has taken huge dowry from them. In
the meantime, several litigations for restitution of conjugal rights, suit for
injunction etc were filed by the prosecutrix. On 10.06.2012 finally, the prosecutrix
came to know about the second marriage of the accused through his relative. In
the meantime, accused made several calls to withdraw the case filed by the
prosecutrix. In the meantime, again the prosecutrix approached to the National
Commission for Women on 17.07.2012 and finally on 06.09.2012 in his reply,
accused admitted that he had already married with 'M' on 20.02.2012 and for the
first time, he has also admitted that he has already married with "M" and he has
denied his marriage with prosecutrix. The complaint was made to the CAW Cell
as well as PS Vasant Vihar/DCP office but of no avail. Therefore, a complaint u/s
156(3) Cr.P.C was filed before the learned MM upon which the direction was
given to register present FIR. After completion of investigation, the present
charge sheet was filed.
8. Arguments heard on the point of charge. Perused the records as well as case
laws filed on behalf of the parties.
9. Apart from several other arguments, it has been argued on behalf of
State/complainant that from the uncontroverted facts and materials collected by
the prosecution during the investigation, there is a strong case against the
accused for having committed rape. Firstly, on 26.10.2011, accused called the
prosecutrix at his govt. allotted flat on the eve of Diwali and tried to make
physical relationship with her. On refusal, accused performed false marriage by
calling a priest and thereafter giving assurance to make the said marriage public
and get the marriage registered and to complete the marriage in all respects as
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 6 of 16
soon as possible and creating belief and misconception in the mind of
prosecutrix, accused made physical relationship with her. Thereafter, he made
physical relationships on several occasions on the pretext of marriage. Referring
to the provisions of section 90 of IPC, it has been alleged and submitted that
accused made physical relationship with prosecutrix by obtaining consent by
undue influence, fraud or cheating, misguiding her and performing false
marriage with an assurance that lateron he will recognize the marriage with
prosecutrix socially and publicly. In support of claim and contentions, reliance is
placed upon following case laws:-
(a) Uday vs State of Karnataka, AIR 2003 SC 1639
(b) Deelip Singh @ Dilip Kumar, AIR 2005 SC 2003
(c) Yedla Srinivasa Rao vs State of A.P. Appeal (crl.) 1369 of 2004
decided on 29 September, 2006
(d) Karthi @ Karthik vs State of Tamilnadu, Crl. Appeal No.601 of
2008 decided on July 1, 2013
10. It has been further argued that accused entered into a fraudulent marriage with
prosecutrix on 26.10.2011 which was neither valid nor lawful and his only
intention was to exploit the prosecutrix physically, sexually and financially. Since
beginning the intention of the accused was to sexually exploit the prosecutrix
which became clear when accused failed to keep his words despite repeated
insistence of prosecutrix and thus, accused has committed an offence
punishable u/s 376 and 493 of IPC.
11. It has been further argued that finding no option, prosecutrix filed a complaint on
10.03.2012 in CAW Cell, Nanakpura, Delhi as well as PS Vasant Vihar, then
accused before CAW Cell on 21.03.2012, confessed his relationship with
prosecutrix, gave undertakings to marry her without disclosing his marriage with
'M' on 21.02.2012 and in order to save himself and get rid of the said complaint,
accused married with prosecutrix on 26.03.2012 knowing it very well that said
marriage is void ab-initio. Reliance is placed upon the following judgments in
support of contentions:
(a) Gaurav Shukla vs State MANU/DE/3108/2015
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 7 of 16
(b) Chanchal vs State MANU/DE/0024/2012
(c) Bhupinder Singh vs UT of Chandigarh MANU/SC/802/2008
(d) Robin Sethi vs State MANU/DE/3661/2013
(e) Munindra Deka vs State of Assam 2008 Legal (Gau) 426
12. It has been further argued that accused made false promise of marriage to the
prosecutrix and on that pretext made physical relationship with her and also
committed fraud upon her by marrying "M" without telling the whole facts not
only to prosecutrix but also to "M". The accused was very well aware that
subsequent marriage with prosecutrix on 26.03.2012 has no sanctity in the eyes
of law as he was well aware that he is already married with "M" and thus,
accused induced the prosecutrix to believe that she was lawfully married to him
and under such deception accused made physical relationship with prosecutrix
and thus accused has committed an offence punishable u/s 420 and 494 of IPC.
In support of contentions, reliance is placed upon following case laws:-
(a) Ram Chnader Bhagat vs State of Jharkhand 2010 (13) SC 780
(b) Girish Baruah vs State of Assam 2008 Legal Eagle (Gau) 485
13. In rebuttal, apart from other arguments, it has been argued on behalf of the
accused that it is admitted by the complainant that she got married to accused
on 26.10.2011 in a secret ceremony before a priest and all necessary Hindu
rites and rituals with regard to marriage were performed and marriage between
the accused who was unmarried at that time and the complainant was
solemnized which fact was admitted by the complainant and therefore, no
charge for the offence u/s 376 IPC is made out against the accused.
14. During the course of arguments, factum of marriage of accused with "M" has
been admitted by the accused. However, it has been argued that section 494
IPC is a cognizable offence and there is an embargo on the court u/s 198(1)
Cr.P.C to take cognizance only upon a complaint made by some person
aggrieved by the offence and no cognizance can be taken on police report.
Therefore, cognizance of section 494 IPC taken by the learned MM is erroneous
and accused is liable to discharged for the offence u/s 494 IPC. In support of
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 8 of 16
contentions, reliance is placed upon following case laws:-
(a) Tej Singh vs State 1965 CriLJ 455
(b) Babubhai Madhavlal Patel and Anr. vs. State of Gujrat
1969 CriLJ567
(a) Suraj Lal Jaiswal s/o Sh. Chhedi Lal Jaiswal vs State of UP and
Smt. Kamla Jaiswal d/o Shri. Salik am Jaiswal, 2006 CriLJ3323
(b) Sow. Swati Sachin Mahajan (Pagare) vs State of Maharashtra
I(2008) DMC79
(c) Arun Vyas & Anr. Vs Anita Vyas 1992(2)JCC (SC) 327
(d) Prashant Bhaskar vs State (Govt. of NCT of Delhi)
2014 (1) JCC 750
(e) Yogesh @ Sachin Jagdish Joshi vs State of Maharashtra
(2008) 10 SCC 394
(f) Brahm Dutt & Ors. vs. State and Ors 1996 JCC 183
(g) Surinder Kumar vs State and Ors (64) 1996 DLT 620
15. From the submissions of the both parties and materials available on record, it is
clear that accused married the prosecutrix in secret ceremony on 26.10.2011.
However this marriage of accused with prosecutrix was never recognized by the
accused socially and publicly till filing of the complaint by the prosecutrix. During
the course of investigation, IO seized the laptop of accused and photographs
and also recorded the statement of Pandit Ram Kumar Mishra who performed
the said secret marriage on 26.10.2011. Later on, accused admitted his
marriage with prosecutrix in the form of his two letters dated 27.03.2012 written
by accused to SHO CAW Cell, Delhi, only after filing of complaint by the
prosecutrix before CAW Cell and in order of get rid of from the complaint filed
before CAW Cell, accused married prosecutrix on 26.03.2011 in the presence of
family which marriage is being recognized by him. Thus, the plea of the accused
that he made physical relation with prosecutrix after performing marriage with
prosecutrix and therefore, charge for the offence u/s 376 of IPC is made out, is
not sustainable at all.
16. From the plea of the accused, it appears that accused endeavoured to say that
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 9 of 16
though the marriage with prosecutrix was performed secretly and physical
relation was made during that period with consent of prosecutrix. Consent is not
defined in positive terms in Indian Penal Code but the provisions of section 90 of
IPC clearly indicates that what cannot be regarded as consent. Consent given
firstly under fear of injury and secondly under a misconception of fat is not a
consent at all. The relevant provision of section 90 of IPC is reproduced for
ready reference:-
"90. Consent known to be given under fear or
misconception. - A consent is not such a consent as is
intended by any section of this Code, if the consent is given
by a person under fear of injury or under a misconception of
fact, and if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such
fear or misconception."....
17. In the case of State of H.P. Vs Mango Ram, MANU/SC/0527/2000 : 2000 Cri.
LJ 4027, the Hon'ble Supreme Court observed as under:-
"Submission of the body under the fear or terror cannot be
construed as a consented sexual act. Consent for the
purpose of Section 375 requires voluntary participation not
only after the exercise of intelligence based on the knowledge
of the significance and moral quality of the act but after
having fully exercised the choice between resistance and
assent.
18. Further, factum of presumption of no consent on behalf of prosecutrix u/s 114A
of Evidence Act, 1872 was discussed in case where there allegation of rape is
on account of false promise of marriage in case of Deepak Gulati and it was
observed as under:-
"15. Section 114-A of Indian Evidence Act, 1872 (hereafter
referred to as the 'Act 1872') provides, that if the prosecutrix
deposes that she did not give her consent, then the Court
shall presume that she did not in fact, give such consent. The
facts of the instant case do not warrant that the provisions of
Section 114-A of the Act 1872 be pressed into service.
Hence, the sole question involved therein is whether her
consent had been obtained on the false promise of marriage.
Thus, the provisions of sections 417, 375 and 376, IPC have
to be taken into consideration along with the provisions of
Section 90 of the Act, 1872. Section 90 of the Act, 1872
provides, that any consent given under a misconception of
fact, would not be considered as valid consent, so far as the
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 10 of 16
provisions of Section 375, IPC are concerned, that thus, such
a physical relationship would tantamount to committing rape".
19. Accused tried to made physical relationship with prosecutrix which was resisted
by her upon which accused performed marriage secretly in his govt. alloted flat
but said marriage was never recognized. In order to get her marriage with
accused recognized, prosecutrix ran from pillar to post and despite filing police
complaint, prosecutrix failed to get her marriage recognized. Ultimately, she filed
a complaint u/s 156(3) Cr.P.C upon which present FIR was registered against
the accused. Accused married with prosecutrix on 26.03.2012 only after filing of
a complaint before CAW Cell. Before filing of the complaint before CAW Cell,
accused refused to recognize his marriage with prosecutrix on 26.10.2011. Had
the accused recognized his marriage with prosecutrix on 26.10.2011, the
prosecutrix might have not filed the said complaint. Thus, it can not be said at
this stage that since beginning the accused had intention to marry prosecutrix
and the physical relationship by the accused with prosecutrix during that period
was made after obtaining valid consent or under misconception caused by the
accused in the mind of prosecutrix, is a matter of trial which can be better
appreciated only after adducing evidence of both the parties. At this stage, prima
facie offences u/s 376(2)(n) of IPC is attracted against the accused.
20. Now coming to other aspect qua commission of offence u/s 494 of IPC. Learned
defence counsel argued that section 494 IPC is a cognizable offence and there
is an embargo on the court u/s 198(1) Cr.P.C to take cognizance only upon a
complaint made by some person aggrieved by the offence and not on police
report. However, this plea of the accused merits rejection. It is pertinent to note
that in the present case, on filing of complaint u/s 156(3) Cr.P.C by the
prosecutrix, present FIR was registered by the police u/s 376 and 494 of IPC
against the accused. Accused can not be discharged for the offence punishable
u/s 494 of IPC only because the complaint was not made within the meaning of
section 198(1)(c) Cr.P.C. In 'Subash Babu vs State of A.P. And anr.', AIR 2011
SC 3031, it has been categorically held that a woman with whom a second
marriage is contracted by suppressing the fact of former marriage is an
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 11 of 16
'aggrieved person' for purposes of section 198 Cr.P.C and would be entitled to
maintain complaint against her husband under section 494/495 of IPC. Relevant
para of the judgment is reproduced below:-
Para 12.
The argument that the learned Magistrate could not have
taken cognizance of offfence punishable under Sections 494
and 495 IPC on the basis of the police report ie charge sheet,
as those offences are non-cognizable and therefore, the relief
claimed in the petition filed before the High Court under
Section 482 of the Code should have been granted is devoid
of merits.
Para 13......
Part I of the First Schedule to the Code of Criminal
Procedure, 1973, relating to offences under the Indian Penal
Code inter alia mentions that section 494 and 495 are non-
cognizable. Section 154 of the Criminal Procedure Code
relates to information in cognizable cases and provides inter
alia that every information relating to the commission of a
cognizable offence, if given orally to an Officer in charge of a
Police Station, shall be reduced to writing by him and be read
over to the informant. Section 156 of the Code provides that
any Officer in charge of a Police Station may, without the
order of a Magistrate, investigate any cognizable case which
a Court having jurisdiction over a local area within the limits of
such station would have power to enquire into or try under
provisions of Chapter XIII of Criminal Procedure Code.
As sections 494 and 495 are made non-cognizable, a Police
Officer would not have power to investigate those cases
without the order of a Magistrate, having a power to try such
cases or commit such cases for trial as provided under
section 155(2) of the Code.
However, this Court finds that the Legislative Assembly of the
State of Andhra Pradesh enacted the Code of Criminal
Procedure (Andhra Pradesh Second Amendment) Act, 1992.
By the said Amending Act, the First Schedule to Central Act 2
of 1974 i.e. the Code of Criminal Procedure, 1973 came to be
amended and against the entries relating to Section 494 in
column 4 for the word "Ditto", the word "Cognizable" and in
column 5 of the word "Bailable" the word "Non-bailable" were
substituted. Similarly, against the entires relating to Section
495 in column 4, for the word "Ditto" the word "Cognizable"
and in column 5 of the word "Ditto", the word "Non-bailable"
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 12 of 16
were substituted. What is relevant to be noticed is that the
Code of Criminal Procedure (Andhra Pradesh Second
Amendment) Act, 1992 was reserved by the Governor of
Andhra Pradesh on the 21st October, 1991 for consideration
and assent of the President. The Presidential assent was
received on 10th February, 1992 after which the Code of
Criminal Procedure (Andhra Pradesh Second Amendment)
Act, 1992 was published on the 15h February, 1992 in the
Andhra Pradesh Gazette Part IV-B (Ext.). Thus, there is no
manner of doubt that Sections 494 and 495 IPC are
cognizable offences as far as State of Andhra Prades is
concerned.
Para 14....
In view of the above settled legal position, this Court has no
doubt that the amendment made in the First Schedule of the
Code of Criminal Procedure, 1973 by the Code of Criminal
Procedure (Andhra Pradesh Second Amendment) Act, 1992,
shall prevail in the State of Andhra Pradesh, notwithstanding
the fact that in the Criminal Procedure Code, 1973 offences
under Section 494 and 495 are treated as cognizable
offences. The reasoning given by the Division Bench of High
Court of Andhra Pradesh in Mavuri Rani Veera Bhadrana
(supra) that though the State Legislation amended the
Schedule making the offence u/s 494 IPC cognizable, the
legislation made by the Parliament i.e. Section 198 of the
Criminal Procedure Code remains and in the event of any
repugnancy between the two legislations, the legislation
made by the Parliament would prevail, because, Section 198
of the Criminal Procedure Code still holds the field despite the
fact that the State Legislation made amendment to the
Schedule of Criminal Procedure Code, which respect, is
erroneous and contrary to all cannons of interpretation of
statute. Once First Schedule to the Code of Criminal
Procedure, 1973 stands amended and offences punishable
under Section 494 and 495 IPC are made cognizable
offences, those offences will have to be regarded as
cognizable offences for all purposes of the code of Criminal
Procedure, 1973 including for the purpose of Section 198 of
the Criminal Procedure Code......
Even if it is assumed for the sake of argument that in
view of Section 198(1)(c) of the Code of Criminal
Procedure, the Magistrate is disentitled to take
cognizance of the offences punishable under Sections
494 and 495 IPC despite the State amendment making
those offences cognizable, this court notices that in
Mavuri Rani Veera Bhadranna (supra), the Division Bench
FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 13 of 16
has considered effect of Section 155(4) of the Criminal
Procedure Code and thereafter held that the bar under
Section 198 would not be applicable as complaint lodged
before police for offence under section 494 IPC also
related to other cognizable offences and if police files a
charge sheet, the Court can take cognizance also of
offence under Section 494 along with other cognizable
offences by virtue of Section 155(4) of the Criminal
Procedure Code.
Para 15
Section 155(4) of the Code inter alia provides that:-
"Where as case relates to two or more offences of which at
least one is cognizable, the case shall be deemed to be a
cognizable case, notwithstanding that the other offences are
non-cognizable"
Here in this case in the charge sheet it is mentioned that the
appellant has also committed offence punishable under
Section 420 of the Indian Penal Code which is cognizable
and therefore this is a case which relates to two or more
offences of which at least one is cognizable and therefore the
case must be deemed to be cognizable case notwithstanding
that the other offences are non-cognizable.
This is not a case in which the FIR is exclusively filed for
commission of offences under Sections 494 and 495 IPC.
The case of the respondent no.2 is that the appellant has
committed offences punishable under Section 417, 420, 494, 495 and 498A of the IPC. A question may arise as to what should be the procedure to be followed by a complainant when a case involves not only non-cognizable offence but one or more cognizable offences as well. It is somewhat anomalous that the aggrieved person by the alleged commission of offences punishable under Sections 494 and 495 IPC should file complaint before a Court and that the same aggrieved person should approach the police officer for alleged commission of offences under Sections 417, 420 and 498A of the Indian Penal Code. Where the case involves one cognizable offence also along with non-cognizable offences it should not be treated as a non-cognizable case for the purpose of sub-section 2 of Section 155 and that is the intention of legislation which is manifested in Section 155(4) of the Code of Criminal Procedure. Therefore, the argument that the learned Magistrate could not have taken cognizance of the offences punishable under FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 14 of 16 Sections 494 and 495 IPC on the basis of submission of charge sheet, can not be accepted and is hereby rejected.
21. In the present case as well as, charge sheet has been filed for cognizable and non-cognizable offences ie offences committed u/s 376 of IPC as well as u/s 494 of IPC. The offences u/s 376 of IPC being cognizable once, it can not be said that cognizance taken by learned MM of offence u/s 494 of IPC is hit by provision u/s 198 of Cr.P.C. Thus, in view of the aforesaid facts and case law, prima facie there is sufficient ground to frame charge against the accused u/s 494 of IPC as well. In this case, accused denied his marriage with prosecutrix performed on 26.10.2011 secretly and later he contracted marriage with "M" on 21.02.2012 and thereafter married the prosecutrix on 26.03.2012 concealing his former marriage with "M" during the life time of "M" and also cohabited with prosecutrix under the belief prosecutrix that she is lawfully married wife of accused. Thus, offence u/s 493 and 495 of IPC are also attracted against the accused. However, no charge for the offence u/s 420 as alleged on behalf of complainant, is made out as the modesty and chastity of a woman can not be considered to be a property or valuable security within the meaning of section 420 of IPC but it is much beyond the comprehension of meaning of property as defined u/s 415 of IPC and is very well protected within the explanation fourthly of section 375 of IPC.
22. Moresoever, at the stage of framing of a charge, probative value of the materials on records cannot be gone into, the material brought on record by the prosecution has to be accepted as true at that stage. The truth, veracity and effect of the evidence which has prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the provable defence of the accused. It is not obligatory for the judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 15 of 16 stage of deciding the matter u/s 227 or u/s 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. But at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. While deciding the question of framing of charge in a criminal case, the court is not to apply exactly the standard and test which it finally applies for determining the Guilt or otherwise. This being the initial stage of the trial, the court is not supposed to decide whether the materials collected by the Investigating Agency provides sufficient ground for conviction of the accused or whether the trial is sure to culminate in his conviction. What is required to be seen is whether there is strong suspicion which may lead to the court to think that there is ground for presuming that the accused has committed an offence. n this regard this court is supported with law laid down by the Hon'ble Apex Court and Hon'ble High Court reported as "UOI vs Prafulla Kumar, AIR 1979 SC 366, State of Maharashtra and others vs Som Nath Thapa and other JT 1996 (4) SC 615, State of Bihar vs Ramesh Singh, AIR 1997 SC 2018: (1997 CRI LJ 1606), Umar Abdula Sakoor Sorathia vs. Intelligence Officer Narcotic Control Bureau JT 1999 (5) SC 394, Kalu Mal Gupta vs. State 2000 I AD Delhi 107".
23. In the facts and circumstances, the judgments relied on behalf of the accused have no application to the facts of present case. In view of the aforesaid discussions, law laid down in A. Subhash Babu case (supra) and other cases and in view of the statement of prosecutrix and other materials available on record, prima facie, there is sufficient ground to frame charge against accused for the offences punishable u/s 376, 493, 494 and 495 of IPC. Put up for framing of charge on 10.12.2015.
(Devendra Kumar Sharma) ASJ/FTC/Court No.7/PHC Lockup Building/05.12.15 FIR No.416/12 PS Vasant Vihar U/s 376/493/494/495 IPC State vs Nishikant Singh 16 of 16