Allahabad High Court
Shafiya Khan @ Shakuntala Prajapati vs State Of U.P. & Another on 8 September, 2021
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 27 Case :- U/S 482/378/407 No. - 2796 of 2021 Applicant :- Shafiya Khan @ Shakuntala Prajapati Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Ajay "Madhavan" Counsel for Opposite Party :- G.A. Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the petitioner and learned A.G.A. for the State.
Notice is dispensed with to respondent no. 2.
Learned counsel for the petitioner submits that in this case, the F.I.R. has been lodged by the brother of the alleged husband of the petitioner under Section 494/495/416/420/504/506 I.P.C., Police Station Bazaar Khala, District Lucknow.
It is further submitted that these are illegal proceedings and the same cannot be permitted to continue in view of the specific bar provided under Section 198 Cr.P.C.
It is next submitted that while filing charge sheet, Section 495 I.P.C. has been dropped by the investigating officer and the informant in this case is not a person aggrieved so as to lodge an F.I.R. or complaint under Section 494 I.P.C.
Learned counsel for the petitioner in support of his contention has relied on judgment reported in 2004 CRI. L.J. 2329 "Parminder Kaur and others Vs. Jaginder Kaur and another" and also on the judgment reported in "1964 SCC Online Kar 148" "State Vs. Gangaram and others".
Per contra learned A.G.A. has submitted that when the first information given to the police having contents of both cognizable and non-cognizable i.e. two or more offence out which at least one is cognizable, the case shall be deemed to be a cognizable case irrespective of the fact that the other offences are non-cognizable and thus, the F.I.R. can certainly be lodged by the brother of the deceased husband and there is no illegality in the same.
Learned A.G.A. has submitted that law in this regard has been settled. When the accused commits other offences apart from the offence under Section 494 I.P.C. and they are cognizable and if the police files a charge sheet, the magistrate can definitely take cognizance of Section 494 I.P.C. along with other cognizable offences in view of the specific provisions of Section 155(4) of Criminal Procedure Code.
On due consideration to the arguments advanced by learned counsel for the parties so also the perusal of the record, this Court finds that in the present case the accused who is alleged wife of the deceased husband has committed the offences under Section 494/495/416/420/504/506 I.P.C. and allegedly she had solemnized the second marriage with the complainant's brother/deceased by concealing her first marriage and after his death it is alleged that she fraudulently obtained all the service benefits including job and pension. Charge sheet in the case has been filed under Sections 494/416/420/504/506 I.P.C and upon that learned magistrate has taken the cognizance and issued the process. Since the petitioner has also committed the offence punishable under Sections 420/504/506/467/468/471 I.P.C. apart from the offence under Section 494 I.P.C., therefore, this case relates to more than two offence, out of which at least one is cognizable and therefore, in view of the law laid down by the Supreme Court in Criminal Appeal No. 1428/2011 "Subhash Babu Vs. State of Andhra Pradesh and another", the case must be deemed to be cognizable case notwithstanding that the other offences are non-cognizable. The relevant paras of the said judgment is extracted as under:-
"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 Section 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 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 Reportable under Section 494 along with other cognizable offences by virtue of Section 155(4) of the Criminal Procedure Code.
15. Section 155(4) of the Code inter alia provides that:-
"Where a 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 Section 494 and 495 IPC.
The case of the respondent no. 2 is that the appellant has committed offences punishable under Sections 417, 420, 494, 495 and 498A of the IPC. A question may arise as to Reportable 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 Section 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 alongwith 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 Section 494 and 495 IPC on the basis of submission of charge sheet, cannot be accepted and is hereby rejected."
Hence, in view of the settled position of law, the magistrate in this case has committed no illegality while taking cognizance as the charge sheet discloses the commission of more than two offences out of which at least one is cognizable, hence, the case shall be treated to be a cognizable case notwithstanding that the other offences are non-cognizable.
In view of the above, it cannot be said that there is any illegality committed by the leaned Magistrate while taking cognizance. The petition lacks merits and is accordingly dismissed.
Order Date :- 8.9.2021 R.C.