Allahabad High Court
Shaqeel Ahmad vs State Of U.P. And Another on 22 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1162, 2019 (109) ACC (SOC) 98 (ALL)
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved. Court No. 23 Case :- APPLICATION U/S 482 No. - 18400 of 2005 Applicant :- Shaqeel Ahmad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- Govt. Advocate Hon'ble Virendra Kumar Srivastava,J.
1. Case called out in the revised list. Learned counsel for the applicant and Sri Anirudh Sharma, learned A.G.A for the State are present. No one is present on behalf of opposite party No.2.
2. The instant application under section 482 Code of Criminal Procedure (Code) has been filed for quashing of proceeding of criminal case No. 1405 of 1999, u/s 498 Indian Panel Code (I.P.C) (Sate vs. Shaqeel Ahmad) pending in the court of A.C.M.M-I, Kanpur Nagar.
3. Heard learned counsel for the parties and perused the record.
4. The brief facts of this case are that the opposite party No.2 Aneesa daughter of Waris Ali resident of 89/119, Basmandi, police station Anwarganj, District Kanpur Nagar had filed an application under section 156(3) of the Code against the applicant Shaqeel Ahmad and five others persons with the allegation that they are resident of her mohalla and on 20.4.1996 the applicant Shaqeel Ahmad had enticed away her with jewellery of Rs.40,000/- belonging to her mother and grand mother and Rs.5,000/- cash. He kept her at Allahabad, Delhi and committed rape against her will and consent and on 21.7.1996 finally left her at railway station, Fatehpur. She filed an application for lodging the first information report but the police did not lodge the same. It was also alleged that during her kidnapping, her father had made a complaint against Shafeeq Ahmad whereupon the father of applicant and other persons named in the said application become annoyed, hurled abuses and slapped her father and also beaten with lathi. It was also alleged in the said application that the applicant was not ready for performing marriage with her. In compliance of order passed by the learned Magistrate, a case crime No. 5/99, under sections 363-A/366,376 401, 232, 504 and 506 I.P.C was lodged at police station Anwarganj, District Kanpur Nagar and after conclusion of investigation, a charge sheet only under section 498 I.P.C was filed only against the applicant Shaqeel Ahmad. The learned Magistrate upon the said police report proceeded against the applicant/-accused and upon his appearance a charge was also framed.
4. Learned counsel for the applicant has submitted that he has been falsely implicated in this case on the account of his denial to marry with opposite party No.2. The opposite party No.2, Aneesa had already been married with one Akhtar about 8 years ago. He has further submitted that no case under section 498 I.P.C is made out against the applicant. The offence under section 498 I.P.C is non-cognizable and no cognizance could be taken in such offence on the police report. According to Section 198 (I)(b) of the Code, cognizance of such offence can be taken only on the complaint filed by the person authorized under the said section. The cognizance taken by the learned Magistrate is against the provision of law and the impugned order as well as criminal proceedings is liable be to quashed.
5. Per contra learned A.G.A has vehemently opposed the submission raised by the learned counsel for the applicant and submitted that the applicant can agitate his grievance at the appropriate stage before the lower court. He has not filed any objection upon being summoned by the concerned Magistrate. The charge has been framed and the case has been fixed for the statement of witnesses. No relief can be given at the belated stage. The proceeding of lower court can not be quashed at this stage.
6. Section 498 I.P.C is an offence for enticing or taking away or detaining or concealing a married women with intention that she may have illicit intercourse with any person is covered by Chapter XX of IPC. Section 198 of the Code provides that in matrimonial offences as provided under Chapter XX of the IPC, a prosecution can be launched only on the complaint made by the person aggrieved as enumerated in Section 198 (1) and 198(2) of the Code. Relevant provision of Section 198 (1) I.P.C and 198(2) of the Code are quoted as under:-
S. 198 (1)-"No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon an 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 an 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 authorized 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 abduction".
(2)- "For the purposes 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."
7. It is also pertinent to note at this stage that Section 2(d) of the Code of Criminal Procedure defines the complaint which means:-
"Any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
8. Thus, it is clear that cognizance of offence U/s 498 I.P.C can be taken only on the complaint filed by the person authorized by section 198 (1) read with section (2) of the Code. Such person is only aggrieved person and such aggrieved person may be only husband for the offence u/s 498 I.P.C. In this case no complaint has been filed by the husband of informant Anisa.
9. In the instant case, the first information report was lodged by the opposite party No.2 and after conclusion of investigation a police report under section 173 of the Code was filed by the investigating officer for offence u/s 498 I.P.C only against applicant. Such police report can not be treated as complaint in view of Section 2(d) of the Code.
10. Record further shows that on the said police report the learned Magistrate has not passed any order regarding taking cognizance after perusal of the relevant documents submitted by the investigating officer. The relevant portion of the order sheet is as under:-
23-4-99 vkt pktZ'khV izkIr gqbZ ntZ jftLVj gks udys rS;kj djkbZ tk;sA g0 viBuh;
,-lh-,e-,e-1 4-5-95 vkt i=koyh udy foHkkx ls udy rS;kj gksdj izkIr gqbZ vfHk;qDr dks fnukad 4-6-99 ds fy;s leu tkjh gksA g0 viBuh;
,-lh-,e-,e-1 4-6-99 eqdnek vkt is'k gqvk vfHk;qDr xSj gkftj gS tfj;s leu fnukad 4-7-99 dks is'k gksA g0 viBuh;
,-lh-,e-,e-1 5-7-95 eqdnek vkt is'k gqvk vfHk;qDr gkftj vk;k i=koyh fnukad 5-8-99 dks okLrs nsus udy is'k gksA g0 viBuh;
,-lh-,e-,e-1 5-8-99 eqdnek vkt is'k gqvk vfHk;qDr 'kdhy vgen ds vkt ds gkftjh tfj; vf/koDrk ekQ dh xbZ i=koyh fnukad 6-9-99 dks okLrs nsus udy is'k gSA g0 viBuh;
,-lh-,e-,e-1 6-9-99 eqdnek vkt is'k gqvk vfHk;qDr gkftj vk;k udys nh xbZ okLrs pktZ fnukad 20-10-99 dks is'k gksA
11. Thus it is clear that the learned Magistrate without applying his mind and passing any order regarding taking of cognizance has proceeded in violation of the specific provision mentioned in section 198 of the Code.
12. It is settled principle of criminal law that where there is an express legal bar engrafted in any of the provisions of the Cr.P.C 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 to 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.
13. The law relating the scope of interference in proceeding pending before lower court by High Court under the provision of Section 482 Cr.P.C is well settled. Hon'ble Supreme Court in State of Haryana vs. Chaudhari Bhajanlal and Ors AIR 1992 SC 604 while dealing with the scope of exercising of inherent power under Section 482 of the Code has held that in following categories of cases such inherent power can be exercised by the High Court either to prevent abuses of process of any Court or otherwise to secure the end of justice.
(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 ac- cused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) 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 and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(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 the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justification and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself.
14. Initiation of a criminal proceeding only for offence u/s 498 I.P.C without any complaint of husband, on police report and also without any specific order of taking cognizance is the abuse of process of law and is clearly eclipsed and covered by category no. 6 of the above mentioned law laid down by the Supreme Court.
15. In view of the foregoing discussing and law laid down by the Apex Court in State of Haryana Vs. Bhajan Lal and others (supra) the whole proceeding of case No. 1405 of 1999, under section 498 I.P.C, pending before the court of A.C.M.M-Ist Kanpur Nagar is against and in violation of specific provision as provided under section 198 read with section 2(d) of Code which cannot be allowed to continue and is liable to be quashed.
16. The application under section 482 Cr.P.C is allowed. The proceeding of aforesaid criminal case pending before A.C.M.M-Ist, Kanpur Nagar is hereby quashed.
17. Office is directed to forward this order to the concerned Magistrate for necessary information and compliance with direction to pass suitable order in accordance with the relevant provision of law.
Order Date :- 22. 5. 2019 G.S