Hon'ble Raghvendra Kumar,J.
(Per Raghvendra Kumar, J.) The petitioners have preferred this writ petition with the following reliefs :
I) to issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 29.03.2015 lodged by the respondent no. 3 in case crime No. 283 of 2015 under sections 494, 120-B I.P.C., Police Station New Agra, District Agra.
II) to issue a writ order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners in case crime No. 283 of 2015 under sections 494, 120-B, I.P.C., Police Station New Agra, District Agra.
III) to issue any other and further writ, order or direction, which this Hon'ble court may deem fit and proper in the circumstances of the case.
Heard learned counsel for the petitioner and learned A.G.A.for the State of U.P.
The factual matrix of the writ petition is as follows :-
Respondent Nos. 3 has lodged an FIR against the petitioner 1 alleging therein that without seeking divorce from her, the petitioner No. 1 has illegally solemnized marriage on 21.6.2014 with one Prinyanka Sharma daughter of Yogendra Sharma resident of Koka near Lucknow Ladpur, Hathras Jalesar Road, Police Station Chandpa, District Hathras at Chaudhari Dharamshala Gulawati, Thana Gulawati, District Bulandshahar, which was attended by close relatives of petitioner No. 1, namely, Harendra Sharma (father), Sunita (mother), Vishal ( brother), Buwa Shradha wife of Ramesh Chandra, cousin brother Sunil, his wife Priti and others. They all were known to the fact that the first marriage was solemnized with respondent No. 3 on 2.12.2007 and no divorce has taken place, the marriage is subsisting or continuing.
The FIR has been lodged with Police Station New Agra on 29.3.2015 at 13 hours on a format prescribed under section 154 Cr.P.C.for lodging of the FIR of cognizable offence.
It has been contended on behalf of the petitioner that the offence of marrying again during life of husband or wife under section 494 is contemplated in Chapter XX of the Indian Penal Code, which deals with the offence relating to marriage. The learned counsel further contended that in the scheme of Criminal Procedure Code, the procedure of prosecution is provided under section 198 of the Code.
It is further submitted that the procedure for dealing with the offence is provided in the scheme of Criminal Procedure Code and Section 198 Cr.P.C. Clearly provides the prosecution for offence against marriage.
In the instant case, from the perusal of the order sheet dated 2.12.2015 it appears that notice has been issued to respondent no. 3 by Registered Post A.D.,but neither any undelivered cover has been received back nor the respondent No. 3 has put in her appearance by herself or through counsel.
The question for consideration before this Court is whether the petitioners are entitled to the reliefs, as prayed in the petition.
Admittedly, the offence under section 494 is a non cognizable offence as mentioned in Schedule-1 of the Code of Criminal Procedure. Section 494 I.P.C. deals with substantive offence of Marrying again during life of husband or wife.....",whereas the procedure for redressal of grievance is provided under section 198 Cr.P.C. Section 198 Cr.P.C. Sub clause ( 1 ) clearly provided no Court shall take cognizance of an offence under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence.
In view of the provisions referred above, the FIR for the offence of Section 494 I.P.C.which is a non cognizable offence cannot legally be registered under section 154 Cr.P.C.,which clearly deals with information in cognizable cases.
The Code of Criminal Procedure distinctly provides the procedure for redressal of the offences which are defined as cognizable and non cognizable case.
In view of the provisions cited above, we are of the opinion that the police is not competent to proceed against the petitioner on the basis of the FIR registered with it under section 494 and 120-B I.P.C., under section 154 Cr.P.C. More so Section 198 Cr.P.C. puts a legal embargo for prosecution by any other mode except by way of complaint by the affected person defined in the section itself.
The submissions of the counsel for the petitioner appears to have substance. The writ petition consequently deserves to be allowed.
The writ petition is allowed. The FIR dated 29.3.2015 lodged by respondent no. 3 in case crime no.283 of 2015 under sections 494, 120-B I.P.C., Police Station New Agra,District Agra is hereby quashed.
However, the respondent No. 3 is at liberty to take recourse to the appropriate procedure provided in law for the alleged offence committed against her under sections 494 and 120-B I.P.C.