Court No. - 15
Case :- APPLICATION U/S 482 No. - 38873 of 2016 Applicant :- Amol Kumar Sharma Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Rajiv Lochan Shukla,Dharmendra Kumar Dwivedi Counsel for Opposite Party :- G.A.,Anoop Trivedi,Shivaji Singh,Syed Riyaz Askari
Hon'ble Umesh Chandra Srivastava,J.
Rejoinder affidavit filed today by learned counsel for the applicant is taken on record.
Heard Sri Rajeev Lochan Shukla, and Sri Dharmendra Kumar, learned counsel for the applicant, learned AGA for the State, Sri Sujeet Singh, learned counsel for opposite party no. 2 and perused the record.
Applicant has filed this application under section 482 Cr.PC with prayer seeking quashing of proceedings of Complaint Case No. 3378 of 2016 (Smt. Nikhita Gaur (Sharma) v. Amol Kumar Sharma), under section 494,495,420, 376, 504 ,506 IPC, Police Station- Delhi Gate, district Aligarh pending in the court of CJM, Aligarh.
Learned counsel for the applicant has submitted that applicant is being maliciously prosecuted on false and frivolous allegations. Applicant has committed no cheating so that he may be prosecuted for this offence under section 420 IPC. There is no allegation against applicant that he contracted marriage with opposite party no. 2 concealing any fact regarding his alleged first marriage. Similarly, he has committed no offence under section 376 IPC also as it is not a case that he established physical relations with opposite party no. 2 on false assurance of marrying her, per own allegation of opposite party no.2 her marriage with applicant was solemnized in an Arya Samaj Temple per Arya Samaj rituals. He has submitted that if marriage is solemnized between two Arya Samajist as per Arya Samaj rituals, the same is valid under section 2 of The Arya Marriage Validation Act, 1937.
As regards the offence under section 494 IPC, learned counsel for the applicant has submitted that even it be believed that applicant contracted marriage with opposite party no. 2 during the life time of his first wife, opposite party no. 2 who may not be an aggrieved person with the marriage has no right to file complaint against applicant for the offence of bigamy. In view of what has been said in Clause (c) of proviso to subsection (1) of Section 198 Cr.PC., complaint in respect of an offence under section 494 IPC may be filed by wife or, on her behalf, by her father, mother, brothers, sisters, sons or daughters, or by her father's or mother's brothers or sisters, by any other person related to her by blood marriage or adoption only.
Learned counsel for the applicant has further submitted that applicant is originally the resident of district Agra. At the time when offence is said to have been committed he was posted as Sub. Inspector in district Bulandshahr. His submission is that when applicant is not the resident of district Aligarh over which the Chief Judicial Magistrate, Aligarh has jurisdiction to take cognizance in respect of offences committed in its territorial jurisdiction, inquiry under section 202 Cr.PC, was mandatorily required to be held into the matter by the Magistrate himself or by a Police Officer or by such other person, as Magistrate thinks fit, before issuing process to applicant under section 204 Cr.PC. His submission is that since in the case in hand no inquiry was held under section 202 Cr.PC., but process was issued to applicant straightaway after examining opposite party no. 2 under section 200 Cr.PC., the order issuing process against applicant is bad in law and is liable to be quashed on this reason also.
Learned counsel for the applicant has further submitted that in respect of allegations made in the complaint opposite party no.2, had also lodged a complaint against applicant in the Police Department in which the matter was inquired into and, after applicant being found guilty, his services were terminated. Applicant had challenged the order regarding termination of his services before the State Administrative Tribunal by way of an Original Application which has been allowed and applicant has been reinstated into service. Thus,he has submitted that once a departmental inquiry has been held into the matter and the outcome of inquiry being quashed by the State Administrative Tribunal and applicant being reinstated into service he may not be criminally prosecuted on the same allegation. The proceedings initiated against the applicant are nothing but abuse of process of the Court and need to be quashed.
In reply, learned AGA and learned counsel appearing for opposite party no.2 have submitted that on material available on record a prima facie case under sections 420,495,373,504,506 IPC, against the applicant is made out. Their submission is that it is not a case that opposite party no. 2, knew that applicant was already married when he contracted marriage with her. Her case is that when applicant contracted marriage with her, he had stated to her that he was unmarried, while he was already married having two children. Her further case is that, if applicant, would have stated to her before contracting marriage with her that he was married having two children and even then opposite party no.2 would have contracted marriage with him then, no doubt, no offence under section 420 and 376 IPC would be made out. But, where the allegation is that applicant contracted marriage with opposite party no.2 concealing his first marriage and also that he had two children also and opposite party no.2 believing that he was unmarried contracted marriage with him and gave consent for physical relation, offence under section 420, 376 IPC would be made out.
Similarly, it is submitted by learned AGA and learned counsel for opposite party no.2 that in view of the fact that applicant contracted marriage with opposite party no. 2 while he was already married and his spouse was alive, an offence under section 495 IPC, is also made out against him. However, they have not disputed that as regards offence under section 494 IPC, on the facts of the case no such offence would be made out as this offence would be made out against the first wife of the applicant and cognizance in respect of this offence could also be be taken on the complaint in writing of the first wife as provided in Clause- (c) of the proviso to subsection (1) of Section 198 Cr.PC.
With regard to inquiry provided in subsection (1) of Section 202 Cr.PC., learned AGA and learned counsel for opposite party no. 2 have submitted that object behind holding inquiry under subsection (1) is to prevent filing of false and frivolous complaints to harass the accused residing at far off places. They have further submitted that subsection (1) of Section 202 Cr.PC. was amended by the Code of Criminal Procedure (Amendment) Act, 2005 with effect from 23.6.2006 to prevent the filing of frivolous complaints as prior to amendment complaints in bulk were being filed in respect of accused residing at far off places in order to harass them. They have further submitted that though from the reading of amended subsection (1) it appears that in respect of an accused residing beyond territorial jurisdiction of a Magistrate, holding inquiry under subsection (1) is mandatory, however, if the accused is already known to the complainant and there is no chance of filing a frivolous complaint against him in respect of an offence committed by him, if the process has been issued to him under section 204 Cr.PC without holding inquiry under subsection (1), that by itself would not be illegal As regards departmental inquiry held against the applicant, they have submitted that in the departmental inquiry held against the applicant also the charges against him were found to be proved and his services were terminated. Their submission is that though the orders terminating applicant's services have been quashed in Original Application filed in State Administrative Tribunal but that by itself would not come in the way in initiating criminal prosecution against the applicant as in criminal prosecution the court has to try the offence independently without being influenced with the outcome of departmental inquiry, and if on evidence adduced during course of trial the charges are found to be proved, it can pass the order accordingly.
Having heard the respective submissions of learned counsel of both sides and having gone through the facts and circumstances of the case, the factual position that has been so emerging is that opposite party no.2 has filed a complaint against applicant with allegations that applicant contracted marriage with her by making false representation before her that he was unmarried while he was not only married but had two children also. It is also her case that she contracted marriage with applicant on applicants representation that he was unmarried and that physical relationship between both of them was also established on account of the fact that she was legally wedded wife of the applicant. Where the allegations are such that applicant solemnized marriage with opposite party no.2 on a false representation that he was unmarried while he was already married having two children and opposite party no.2 gave consent for physical relationship with applicant under the belief of being his legally wedded wife, while on account of first wife of applicant being alive by the time the marriage was contracted her marriage is void, offences under section 420 and 376 IPC against applicant would be made out.
Similarly, the act of applicant marrying opposite party no. 2 during life time of his wife also constitutes an offence under section 495 IPC. So is the position with regard to offences under section 504, 506 IPC as there is also allegation in this regard in the complaint that when after coming to know about the first marriage of the applicant opposite party no.2 questioned the applicant in this regard, he abused her and also offered threats to her As regards offence under section 494 IPC, there is force in the contention of learned counsel for the applicant that, so far as opposite party no. 2 is concerned, this offence is not made out. This offence can be said to be made out in relation to first wife of the applicant only and cognizance with regard to this offence can also be taken on complaint in writing of either the first wife of the applicant or, on her behalf by her father, mother, brothers, sisters, sons or daughters or her father's or mother's brothers or sisters, or with leave of the Court, by any other person related to her by blood, marriage or adoption, as provided inClasue (c) of proviso to subsection (1) of Section 198 Cr.PC.
It is not disputed that applicant has been summoned to face trial for the offences under section 420, 494, 495, 376, 504, 506 IPC on a complaint filed by opposite party no. 2 after recording her statement under section 200 Cr.PC. No inquiry under section 202 Cr.PC has been held by the Magistrate before issuing process to the applicant for the offences he has been summoned for. Section 202 Cr.PC was amended by the Code of Civil Procedure Act, 2005 with effect from 23.6.2006 and it is provided therein that a Magistrate, on receipt of complaint of an offence of which he is authorized to take cognizance, or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquiry into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not here is sufficient ground for proceedings.
It is also provided that no such direction for investigation shall be made (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the court of sessions, or (b) where the complaint has not been made by a court , unless the complainant and the witnesses present (if any) have been examined on oath under section 200 Cr.PC.
On reading the amended proviso of subsection (1) of Section 202, it is clear that if a complaint has been filed in respect of an accused who resides outside the territorial jurisdiction of the Magistrate then in that case on receipt of complaint the Magistrate shall firstly examine the complaint and his witnesses present under section 200 and, thereafter, before issuing process to accused shall hold an inquiry to be made into the matter either by himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit. The purpose behind holding inquiry under subsection (1) is to record satisfaction by the Magistrate that there is sufficient ground for proceeding. There is another reason also behind holding the inquiry that one who is residing at far of place may not be unnecessarily summoned to face trial for any offence. The purpose behind making amendment in subsection (1) of Section 202 was to have check over filing of false and frivolous complaints as it was noticed that false and frivolous complaints were being filed in bulk in respect of accused residing at far off places for their harassment.
Though the word 'shall' has been used in subsection (1) of Section 202 Cr.PC holding inquiry before issuing process under section 204 Cr.PC is mandatory, however, if the Magistrate after recording statement of the complainant and his witnesses under section 200 Cr.PC does not hold any further inquiry under subsection (1) Section 202 Cr.PC and straightaway issues process to accused, that by itself would not be an illegal order unless it is proved that complaint has been filed with false and frivolous allegations. There are cases where despite holding inquiry under subsection (1) of Section 202 Cr.PC, being must inquiry is not held before issuing process. Such cases are under section 138/141 N.I.Act where accused are normally the residents of far off places. This is because such cases being based on the documentary evidence there is very little possibility of filing false compliant.
There may be other cases also in which though accused are residing at far off places, but they being known to complainant from before on account of their relationship with the complainant, process under section 204 Cr.PC are issued to them without holding inquiry under subsection (1) of 202 Cr.PC. Such cases are of cruelty between husband and wife. It is not necessary in these cases to hold inquiry under subsection (1) before issuing pro0cess to accused residing at far off places because they are known to complainant because of their relationship with the complainant.
The Hon'ble Apex Court in Sharif-ud-Din vs. Abdul Gani reported in AIR 1980 SC 303 and in Lachmi Narain vs. Union of India and others reported in 1976 SC 714, has laid down the law that where the statutory provision is mandatory or directory depends on the law makers and not on the language used. When statute prescribes a particular act to be done in a particular manner laying down special consequences on failure to apply that , then it will be mandatory otherwise it will be directory.
It is no where provided under section 202 Cr.PC., that if the process is issued to an accused under section 204 Cr.PC. residing outside the territorial jurisdiction of the Magistrate, without holding inquiry under sub-section (1) the order passed by the Magistrate would be illegal. Therefore, it is in the discretion of the Magistrate to see whether inquiry under subsection (1) is required and where it is not required. If on the facts of the case the Magistrate is satisfied with facts averred in complaint and statements recorded under section 200 Cr.PC. that no further inquiry is required under sub-section (1) , he can straightaway issue the process.
In view of the above, if we examine the facts of the case it would be found that applicant is not a stranger to the complainant. There is allegation against him that he contracted marriage with opposite party no. 2 concealing his earlier marriage. Though he is the original resident of district Agra and at the time when he contracted marriage he was residing at Bulandshahr, the complaint filed by opposite party no.2 against the applicant, in the court of C.J.M. Aligarh, in respect of offence under section 494,495,420,376,504,506 IPC, and the order passed by the CJM, Aligarh taking cognizance and issuing process to the applicant for these offences would not by itself be bad in law on the ground that order has been passed without following the mandatory provisions of holding inquiry under sub-section (1) of Section 200 Cr.PC.
Much has been said about the departmental inquiry being held into the matter and also that since the orders passed against applicant terminating his services have been quashed in the Original Application by the State Administrative Tribunal applicant may not be criminally prosecuted on the same charges. This does not seems to be legally correct. With regard to allegations made against applicant, he may tried on criminal side despite the fact he has been exonerated in departmental inquiry on the same charges. The criminal prosecution cannot be measured with the same yardstick on which the departmental inquiry is measured.
In view of the aforesaid discussion, I find that proceedings initiated against the applicant by opposite party no.2 do not suffer from any illegality so that the same may be quashed sayinge abuse of process of the court.
In the result, application is dismissed.
Order Date :- 30.5.2018 ssm