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Judgment
R.C. Khulbe, J
Since both the applications have been filed by the applicants under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C') for seeking to quash the impugned summoning order dated 27.07.2017 passed by the Judicial Magistrate IInd , Roorkee, District Haridwar in Criminal Case No. 766 of 2017, State vs. Jitendra Kumar and others, u/s 494, 420, 467, 468, 471 & 120-B IPC, hence both are taken up together and decided by this common judgment.
The facts, to the limited extent necessary, are that an FIR was lodged on 23.03.2015 at about 18:10 PM, at Kotwali, Gangnahar, Roorkee by the informant-Virendra Singh with the allegations that the marriage of his daughter-Dimple Verma was solemnized with Jitendra Kumar as per Hindu Rituals and Rites in 2011. After the marriage, Jitendra Kumar has left his daughter Dimple at their house in the year 2015, Jitendra came to his house to take his wife Dimple with him at around 9:00 PM, in the night he stayed at his house and left house at about 10:30 AM. Again on 16.03.2015 at about 10:30 PM Jitendra visited his house and told the informant that he wants to have some talk with the informant and his wife. He told us that he was informed by a Pandit that the janampatri of his and Dimple was not matching and his daughter-Dimple should have not married with Jitendra, if they lived together, he would meet an untimely death. Thereafter Jitendra went away, on the next day in the morning informant made a telephone call to Jitendra and told informant that he will come with Dimple in the evening. On being suspicious about this, the informant sent his nephew- Mukesh, who contacted over telephone, he told the informant that the house was under locked then they contacted Jitendra and family members they failed to provide any satisfactory reply about Dimple. Jitendra also did not tell anything about Dimple and continued to state that both will come to Roorkee tomorrow but now he did not come to him. Since then Dimple's mobile is also switched off and the informant further stated that Jitendra had shifted his wife at some other places.
After lodging FIR, investigation was done and after the investigation final report was submitted. After filing the protest petition by Virendra Singh (informant) order of further investigation was issued on 22.09.2016 by concerned Judicial Magistrate.
After completion of further investigation charge-sheet was submitted against the accused, namely, Jitendra Kumar, Vijay Pal Singh, Kusum, Jogendra, Digvijay Singh, Nakali Singh, Dimple, Jagdish, Shahil and Nain Singh. Accordingly the learned Magistrate took cognizance on 27.07.2017 and summoned the accused u/s 494, 420, 467, 468, 471 & 120-B IPC. Feeling aggrieved the present applications have been filed under Section 482 Cr.P.C. for quashing the impugned order.
The applicants- Dimple Digvijay Singh Panwar and Digvijay Singh Panwar filed a Special Criminal Application (Direction- Police Protection) No. 1761 of 2015 before the High Court of Gujarat at Ahmedabad for seeking protection. The High Court of Gujarat passed an order dated 26.03.2015 and granted police protection to the applicants.
The accused-Jitendra has filed Writ Petition (Criminal) No. 736 of 2015 for quashing the said FIR Dated 23.03.2015; at the same time a Habeas Corpus Petition No. 14 of 2015 was also filed by the Virendra Singh (informant) before this Court. The Co-ordinate Bench of this Court has passed the order dated 17.07.2015 and protection was granted to the accused-Jitendra Kumar.
After submission of charge sheet an application under Section 482 of Cr.P.C. was moved by Dimple Digvijay Singh Panwar and others in which the Co-ordinate Bench of this Court passed the order dated 14.11.2017 and the proceedings in Criminal Case No.766 of 2017 were stayed. From a perusal of the order dated 14.11.2017, it is clear that on that day the both the applicants were present before that Court and admitted that they were married together and happily enjoying marriage life.
In the FIR No. 112 of 2015, the Investigating Officer found that the forged marriage certificate was obtained by Digvijay Singh Panwar and Dimple.
From a perusal of the order dated 26.03.2015 passed by the High Court of Gujarat, it is clear that the said marriage certificate was produced by both the accused Digvijay Singh Panwar and Dimple Digvijay Singh Panwar before the High Court of Gujarat for seeking protection from other parties. The said marriage certificate was procured by both the accused from Haridwar. On the basis of said marriage certificate both the applicants also sought a prayer for staying the criminal proceedings, which is pending before the Judicial Magistrate, Second Roorkee stating that both the parties are married and living happily and enjoying marriage life.
Section 494 of IPC, expressly states as follows:
"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."
Section 198 Cr.P.C., expressly states as follows:
"198. Prosecution for offences against marriage.
(1) 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, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
(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.
(3) When in any case falling under clause (a) of the proviso to subsection (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 subsection (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 intercourse by a man with his own wife, the wife being under eighteen 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."
From a perusal of Section 198 Cr.P.C., it is clear that the Court has no power to take cognizance of an offence committed under Section 494 IPC, except on the complaint filed by the aggrieved person and, or, on behalf of aggrieved person, as stated under Section 198 of Cr.P.C.
In the present case, no such complaint was filed, either by aggrieved person, or on behalf of the aggrieved person.
Since no complaint was filed, the Magistrate has no power to take cognizance against the present applicants.
From the perusal of the record, it is found that the applicants Digvijay Singh Panwar and Dimple Digvijay Singh Panwar filed a marriage certificate before the High Court of Gujarat at Ahmedabad and on the basis of same documents the stay order was also passed by this Court in Criminal Misc. Application No. 1579 of 2017 filed under Section 482 Cr.P.C.; ultimately, the said certificate was found to be fake during the investigation.
From a perusal of the evidence collected during the course of investigation a prima facie case is made out against the present applicants Digvijay Singh Panwar and Dimple Digvijay Singh Panwar only u/s 420, 467, 468, 471 IPC. As regard to other applicants are concerned, neither they procured any order from the High Court of Gujarat at Ahmedabad nor from this Court. There is no prima facie case made out against the other accused.
In these circumstances, the summoning order dated 27.07.2017 passed by the Judicial Magistrate, Roorkee, in Criminal Case No. 766 of 2017 is hereby affirmed as far as the applicants, namely, Digvijay Singh Panwar and Dimple Digvijay Singh Panwar are concerned. However, the summoning order regarding other accused is liable to be quashed. The same is quashed, accordingly.
The petitions filed under Section 482 Cr.P.C. stand disposed of finally.