Delhi District Court
Rihana vs Azzimuddin & Ors. 1/5 on 24 August, 2012
IN THE COURT OF MS. SAUMYA CHAUHAN
METROPOLITAN MAGISTRATE, SOUTH EAST, SAKET, NEW DELHI
Rihana ........... Complainant
V.
Azzimuddin & Ors. ............ Accused/respondents
PS Jamia Nagar CC No.55/1/12 ORDER ON APPLICATION 156(3) CrPC By this order, the court shall decide the application under Section 156 (3) Cr.P.C .
Briefly stated facts as per the complaint are that the accused no.2 Azimmuddin was in relation of the complainant. It is alleged that he was consistently approaching the complainant assuring her that he was in love with her and willing to marry her. However, she denied to do so without consent of her parents. It is further alleged that the accused started emotionally blackmailing her by swearing to Quaran-e-pak. Finally the complainant relied upon him and they got married in a Masjid at Nizammuddin in the presence of accused 's friends on 02.10.2011. However, it is alleged that after marriage, accused repeatedly raped the complainant against her wishes at different places saying that he is her legal wedded husband and has legal right to cohabit with Rihana vs Azzimuddin & Ors. 1/5 her. It is further alleged that later on the accused also took Rs.2,50,000/- from the applicant in the name of settlement. In February 2012, the complainant pressurised the accused to take her to the matrimonial home and give her the social status of his wife publically. However, he denied to do so. The complainant herself went to accused's home and told the whole story to his parents. Upon this, accused threw her out of the house and threatened to divorce her publically. The complainant got filed a complaint with the PS Jamia Nagar. However, no action was taken by the police officers. Hence the present complaint.
In the ATR filed by the ASI Shiv Kumar, it is reported that complainant and the accused got married on 02.10.2011 without informing their families but later on the accused divorced her on 29.02.2012 by uttering the word "Talaq" three times.
I have heard the arguments of Ld. Counsel for complainant and perused the record carefully.
Ld. Counsel for complainant has submitted that the complainant is an innocent girl who has been emotionally black mailed and cheated and has been running from pillar to post for justice for past many months. The counsel has relied upon the judgment Mangal Singh vs State of UP (2010 (1) Crimes 670 (ALL) wherein Allahabad High Court had held that the stage of application Rihana vs Azzimuddin & Ors. 2/5 under Section of 156 (3) is a pre-cognizance stage and is totally different from the stage framing of charge. At the stage of Section 156 (3) Cr.P.C only this fact has to be seen is whether any cognizable offence is disclosed or not and the appreciation of facts is not to be done. If a cognizable is disclosed then the magistrate is legally bound to direct the register of an FIR.
Coming to the case at hand, admittedly the complainant had got married with the accused on 02.10.2011. The copy of Nikahnama is also placed on record. Under Section 375 (4) IPC, a man is said to have committed rape if he has sexual intercourse with the woman with her consent when the man knows that he is not her husband and consent is given because she believes that he is another man to whom she is, or believes herself to be lawfully married.
From the perusal of the complaint itself, it is clear that the complainant was fully aware that she is married to the accused Azimmuddin. Thus, this section is not attracted in the present case. Even otherwise the concept of marital rape is not recognized in the criminal justice system in India, unless and until the wife is below fifteen years of age (Exception to Section 375 IPC). It is not the case of the complainant that the consent of marriage was obtained by fraud, misrepresentation or coersion. Thus, no cognizable offence under Section 376 IPC is made out.
Rihana vs Azzimuddin & Ors. 3/5 The complainant has further alleged that the accused had taken Rs.2,50,000/- from her.
In the case of "M/s Skipper Beverages P. Ltd. V.s State" 2002 CRI. L.J.NOC 333(Delhi) it was held that the power u/s 156(3) is to be exercised by a Magistrate judiciously and not in a mechanical manner. It was observed as under:-
"Section 156 empowers Magistrate to direct police to register case and initiate investigation but this power had to be exercised judiciously and not in mechanical manner. Those cases, where allegations are not very serious and complainant himself is in possession of evidence to prove allegation, there should be no need to pass order u/s 156. But cases, where Magistrate is of view that nature of allegation is such that complainant himself may not be in position to collect and produce evidence before court, and interest of justice demand that police should step in to the help complainant, police assistance can be taken. Thus, where allegation of theft of cheque and forging of typing out certain portion therein, could be proved by oral evidence and by summoning original cheque from banker and leading required evidence respectively, then there was no such evidence which complainant could be unable to collect on his own. As such, declining request to issue direction to police u/s 156(3) would be justified".
Since the complainant is fully aware of the details of the accused Rihana vs Azzimuddin & Ors. 4/5 and can produce the evidence with respect to the said amount. Thus, there is no need to register the FIR under Section 420 IPC as well.
In view of the above discussion, the application under Section 156 (3) Cr.P.C is dismissed. There is no ground on which the assistance of the police is required. Further, if at any stage, the court is of the opinion that police assistance is required, it has the power to order investigation under Section 202 Cr.P.C, and this order shall not be a bar to such investigation at later stage.
However, I take cognizance of the offence u/s 200 CrPC. To come up now for pre summoning evidence on 20.10.2012.
Announced in the open court (SAUMYA CHAUHAN)
on 24th August 2012 METROPOLITAN MAGISTRATE
SOUTH EAST DELHI, SAKET
Rihana vs Azzimuddin & Ors. 5/5