Learned counsel appearing for the petitioner contends that the petitioner was married to one, namely Reeta. On account of matrimonial disputes F.I.R. No.48 of 2012 under Sections 498A/323 I.P.C. and Section 3/4 of the Dowry Prohibition Act, was registered in Police Station Malipur, District Ambedkar Nagar. After investigation, no incriminating material could be found against the petitioner and, therefore, final report was filed on 30.7.2012.
It appears that a reference was received from Human Rights Commission, whereupon application (Annexure-5) came to be filed by the investigating agency before the Magistrate. The Magistrate allowed the application under Section 173(8) of the Code of Criminal Procedure.
As a consequence of further investigation, it appears that Section 364 I.P.C. has been invoked. At this stage proceedings are being initiated against the petitioner under Section 82 of the Code of Criminal Procedure in context of Case Crime No.48 of 2012 under Section 364 I.P.C., Police Station Malipur, District Ambedkar Nagar.
In the oral contention of the learned counsel, ingredients of Section 498A I.P.C. would be absolutely diverse from the ingredients of Section 364 I.P.C. In view of the said circumstances, under the earlier F.I.R./Case Crime Number which was under Section 498A I.P.C., further investigation cannot be conducted under Section 364 I.P.C.
Considering the facts and circumstances as noted above, issue notice to respondent no.2, returnable on 11.8.2014.
List on 11.8.2014.
In the meantime, investigating officer is directed to file his affidavit as to the justification of introducing Section 364 I.P.C. in further investigation of a case under Section 498A I.P.C.
It is directed that the petitioner shall make himself available to the investigating agency.
Proceedings under Section 82 of the Code of Criminal Procedure, however, shall not be initiated.
Till the next date of listing, the petitioner shall not be taken in custody.
Order Date :- 8.7.2014 A.Nigam