Hon'ble Rajeev Singh,J.
Counter affidavit filed today is taken on record.
Heard Shri Chandan Srivastava, learned counsel for the petitioners, Shri Vishva Nath Pratap Singh, learned counsel for the respondent No.4, Shri S.P. Singh, learned A.G.A. for the State and perused the record.
The present petition has been filed for quashing the impugned F.I.R. No.25 of 2020, under Section 493 I.P.C., P.S. Mahila Thana, District Ayodhya and also direct the opposite parties not to harass and coerce the petitioners in pursuance of the aforesaid F.I.R.
Learned counsel for the petitioners submits that the provision of Section 198 Cr.P.C. provides that no court shall take cognizance of an offence punishable under Chapter XX of I.P.C. except upon a complaint made by some person aggrieved by the offence. He further submits that in the present case, the F.I.R. in question was lodged by the respondent No.4 with the allegation that in the year of 2012, she met with the petitioner No.2 and they both came into relationship and became intimate. She further alleged that promise of marriage was given to her and she started living as wife with the petitioner No.2 and when she claimed her rights of wife, then she was abused physically as well as mentally and later on, the respondent No.4 informed to her family members about the same. Thereafter, father of the respondent No.4 talked to the petitioner No.1 (father of the petitioner No.2), but he refused to solemnize marriage of the petitioner No.2 with the respondent No.4, as a result, a complaint was made in the concerned police station and later on, petitioner No.1 agreed for marriage but the respondent refused. He further submits that the impugned F.I.R. for offence under Section 493 I.P.C. is not maintainable in the present case as per the provision of Section 198 Cr.P.C. The provision of Section 198 Cr.P.C. is as under:-
"(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 2 , 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 com- mitted 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.
(b) 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, where such offence consists of sexual intercourse the a man with his own wife, the wife being under fifteen 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."
Learned counsel for the petitioners further submits that on 08.07.2020, interim protection was given to the petitioner and the matter was listed on 13.08.2020 and Senior Superintendent of Police, Ayodhya was directed to file his personal affidavit by the next date of listing and explain under what circumstances, the impugned F.I.R. has been lodged against the petitioners in the hasty manner when the same is barred under the provision of Section 198 of Cr.P.C. He further submits that on 10.07.2020, the prosecutrix moved an application and on the same date, her statement under Sections 161 & 164 Cr.P.C. was also recorded, in which she stated a different version. Thereafter, on the basis of evidence, the Investigating Officer altered the offence under Section 493 I.P.C. to the offences under Sections 376, 504, 506 I.P.C. & Sections 3/4 POCSO Act, therefore, the F.I.R. and its proceedings are liable to be quashed.
Learned A.G.A. and learned counsel for the complainant submit that on the written complaint of the prosecutrix, the F.I.R. in question was lodged on 20.06.2020, under Sections 493 I.P.C. against the accused persons, but he does not dispute the provision of Section 198 Cr.P.C., which provides the complaint is to be filed for the offences mentioned under Chapter XX of I.P.C. and offence under Section 493 I.P.C. is barred in the aforesaid Chapter and he also does not dispute that the interim protection was issued to the petitioners by this Court on 08.07.2020 and a direction was issued to the Senior Superintendent of Police, Ayodhya to file his personal affidavit that under what circumstances, the F.I.R. under Section 493 I.P.C. was lodged when the same is barred as per the provision of Section 198 Cr.P.C. and thereafter, the statement of prosecutrix under Sections 161 & 164 Cr.P.C. was recorded on 10.07.2020 and on the basis of her statement, offences under Section 493 I.P.C. was altered to the offences under Sections 376, 504, 506 I.P.C. and Sections 3/4 POCSO Act.
Considering the facts and circumstances of the case we find that initially, the F.I.R. was registered under Section 493 I.P.C. by the respondent No.4-victim, which is barred under Section 198 Cr.P.C. as no allegation of rape was made by the victim in the F.I.R. and this court on 08.07.2020 issued notice to her and further the Senior Superintendent of Police, Ayodhya was called upon to justify the impugned F.I.R. by a personal affidavit, which annoyed the Investigating Agency, then the present case has been altered from Section 493 I.P.C. to Sections 376, 504, 506 I.P.C. and Sections 3/4 POCSO Act.
In view of the same, we quash the impugned F.I.R. No.25 of 2020, under Section 493 I.P.C., P.S. Mahila Thana, District Ayodhya and the petition is allowed with liberty to petitioners to avail the appropriate remedy.
(Rajeev Singh,J.) (Ramesh Sinha,J.) Order Date :- 18.1.2021 S. Shivhare