Allahabad High Court
Smt. Reena Joshi vs State Of U.P. And Another on 7 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:41066 Reserved on 13.2.2024 Delivered on 7.3.2024 Court No. - 91 Case :- APPLICATION U/S 482 No. - 38475 of 2023 Applicant :- Smt. Reena Joshi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mata Pher Counsel for Opposite Party :- G.A.,Raghvendra Kumar Mishra With: Case :- APPLICATION U/S 482 No. - 2605 of 2005 Applicant :- Hari Mohan Rawat And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nasiruzzaman,Mata Pher Counsel for Opposite Party :- Govt. Advocate Hon'ble Mayank Kumar Jain, J.
1. Since both the applications arise out of the same case number and relate to similar issue, they are being disposed of by this common judgment.
2. Heard learned counsel for the applicants, learned AGA for the State and learned counsel for opposite party no.2.
3. Application under Section 482 of Cr PC No.38475 of 2023 has been filed by the applicant, praying for quashing the entire proceeding of Case No.3556 of 2019 (Old No.964 of 2002) (State vs. Hari Mohan Rawat and Another) under Section 494, 323, 504 of IPC, Police Station Sadar Bazar, District Mathura, arising out of Case Crime No.239 of 2002, pending in the Court of Civil Judge (SD)/FTC/Additional Chief Judicial Magistrate, Mathura and order dated 29.8.2023 passed by Additional Sessions Judge, FTC-II, Mathura in Criminal Revision No.298 of 2023 (Smt. Reena Joshi vs. State of UP and Another) arising out of Case No.3556 of 2019 and order dated 2.5.2023 passed by Civil Judge (SD)/FTC/Additional Chief Judicial Magistrate, Mathura in Case no.3556 of 2019 (State vs. Hari Mohan Rawat and another) under Sections 494, 323, 504 of IPC, Police Station Sadar Bazar, District Mathura, arising out of Case Crime No.239 of 2002 as well as cognizance/summoning order dated 23.11.2002 in aforesaid case and sections, pending in the Court of Civil Judge (SD)/FTC/Additional Chief Judicial Magistrate, Mathura.
3.1 In the connected matter (Application u/s 482 No.2605 of 2005) a prayer is made to quash the impugned charge-sheet no.146/2002 dated 28.8.2002 (State vs. Hari Mohan Rawat and another) under Sections 494, 323, 504 of IPC.
4. The allegations in the FIR are summarised as under:
4.1 The marriage of the informant was solemnized with Hari Mohan Rawat on 29.4.1985. Her parents spent Rs.80,000/- in the marriage. Being dissatisfied with the dowry given in the marriage, her husband started making demand of dowry. A male child, namely, Sachin was born out of the wedlock. Her husband was appointed on the post of Clerk in Veterinary College, Mathura. On 3.3.2002 at about 6:00 pm, Laxman Prasad informed opposite party no.2 that co-accused Hari Mohan Rawat has solemnized second marriage with the applicant.
4.2 Thereafter, brother of informant, namely, Pawan Kumar and Laxman Prasad went to the house of Hari Mohan Rawat on 4.3.2002 at around 8:00 am. The applicant-Hari Mohan Rawat committed marpeet with them with hockey stick, danda, kick and fist. Co-accused Hari Mohan Rawat snatched Rs.3000/- from the pocket of brother of informant and threatened to kill them in future.
5. An FIR came to be filed, as Crime No.239 of 2002, under Sections 394, 506, 494 of IPC, Police Station Sadar Bazar, District Mathura against co-accused Hari Mohan Rawat and applicant. After investigation, a charge-sheet was filed against applicant-Hari Mohan Rawat under Sections 494, 323, 504 of IPC.
6. Vide order dated 23.11.2002, the trial Court took cognizance against applicant-Hari Mohan Rawat.
7. An application under Section 482 of Cr PC No.2605 of 2002 (Hari Mohan Rawat vs. State of UP & Another) was filed in which, the proceedings of the trial Court were stayed, but the said application was dismissed as infructuous on 13.5.2019 against which, Hari Mohan Rawat filed a recall application and the order dated 13.5.2019 was recalled. That application is still pending for consideration.
8. It is submitted by learned counsel for the applicants that the prosecution is barred by Section 198 (1) of Cr PC. For trying cases under Section 494 of IPC, a complaint should be filed. Besides this, offence under Sections 323 and 504 is non-cognizable offence. An application under Section (6Ba) was moved before the trial Court on the ground that the offence under Section 494 of IPC is covered under Chapter XX of IPC and the offence under Sections 323 and 504 of IPC is covered with the First Schedule of non-cognizable offence. Therefore, cognizance was not in accordance with law, but the same was rejected. Against which, applicant filed a revision before the District Judge, Mathura, which was also rejected.
9. In support of his submission, learned counsel for the applicants relied on the judgments of this Court in Dhanveer & Others vs. State of UP & Another, 2010 LawSuit (All) 2417 and Lallan vs. State of UP & Another, 2012 77 AllCriC 151.
10. Per contra, learned AGA assisted by learned counsel for opposite party no.2 opposed the prayer. It is submitted that the learned trial Court as well as learned revisional Court, after considering the legal and factual aspects of the case, by a reasoned order, has passed the impugned orders. Learned counsel for the applicants could not point any illegality in the same.
11. The Hon'ble Supreme Court in Pramod Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9 SCC 608 has considered the principles, scope, and ambit of the powers of the Court under Section 482 Cr. P.C. and held that:
7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and reiterated by this Court. In Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, this Court observed:
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The Court in Bhajan Lal [State of Haryana v. Bhajan Lal, noted that quashing may be appropriate where, "102. 1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2).
...
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100] , (Dhruvaram Sonar):
"13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
12. A perusal of the impugned orders passed by the trial Court as well as revisional Court, reveals that initially the FIR was lodged under Sections 394, 506 and 494 of IPC. After investigation, charge-sheet was submitted under Sections 494, 323, 504 of IPC, therefore, the objection on behalf of the applicants was not considered by the trial Court in accordance with the provisions of law.
13. Section 198 of Cr PC reads as under:
"198. Prosecution for offences against marriage. - 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 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, with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(2) For the purpose of Sub-Section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to Sub-Section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to Sub-Section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-Section (4), and any document purporting to be a certificate required by that Sub-Section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual inter-course by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence."
14. Offence under Section 494 of IPC is defined under Chapter XX of IPC which deals with the offences relating to marriage. Section 494 of IPC reads as under:
"494. Marrying again during lifetime of husband or wife. -Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception.--This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."
15. In view of the provisions contained in Section 198 of Cr PC, no cognizance of an offence under Section 494 of IPC can be taken by the Court except upon a complaint made by some person aggrieved by the offence. Therefore, the cognizance taken by the trial Court on the basis of charge-sheet filed under Section 494 of IPC is against the provisions of law. Hence, the cognizance under Section 494 of IPC is hereby quashed.
However, opposite party no.2 is at liberty to file a complaint for an offence punishable under Section 494 of IPC accordingly.
16. So far as the second argument of the applicants is concerned, since offence under Sections 323 and 504 of IPC is a non-cognizable offence, therefore, cognizance may be taken on the basis of a complaint only. Explanation of Section 2 (d) of Cr PC reads as under:
2. (d) ... ... ...
Explanation:- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant."
17. In view of above, as per provisions contained in Section 2 (d) of Cr PC and Explanation thereof, the police officer who has filed charge-sheet under Sections 323 and 504 of IPC, shall be deemed to be a complainant. The cognizance under Sections 323 and 504 can only be taken on the basis of a complaint.
18. In the case on hand, the charge-sheet filed by the Investigating Officer under Sections 323 and 504 can be proceeded in accordance with the procedure laid down in Chapter XV of Cr PC, as a complaint case. As a result of it, the trial Court is directed to proceed in accordance with the procedure laid down in Chapter XV of Cr PC with regard to the charge-sheet submitted under Sections 323 and 504 of IPC.
19. With the above observations, both the applications are, accordingly, disposed of.
Order Date :-7.3.2024 RKK/-
(Mayank Kumar Jain, J)