Janak Raj Kotwal JUDGMENT
Janak Raj Kotwal, J.
1. This is a petition under Section 561-A Cr.P.C. whereby petitioner seeks quashing of FIR No. 103/2017 of Police Station, Bakshi Nagar, Jammu registered against him in terms of Section 156(3) Cr.P.C. on a complaint lodged by respondent No. 3 (complainant) for commission of offences under Sections 376, 406, 420, 493, 494, 495, 496 and 497 RPC.
2. Case set up by the complainant in the complaint filed by her precisely is that in February, 2014 she secured job in Shulhul Mahindra, Jammu where petitioner was working as General Manager. On asking of the petitioner, she gave her contact number to him and they started chatting frequently through messages and whatsapp. In last week of February, 2014, petitioner made a proposal for marriage with her, she agreed and they got married on 17.01.2015. After their marriage she resided and cohabited with the petitioner as his wife in rented accommodation for seven months at Sainik Colony, Jammu. In July, 2015 they shifted to Paloura and stayed there for about one year. Behaviour of the petitioner, in the meantime, had changed. He had been torturing her and deserted her in the month of April, 2016 when she shifted to the house of her parents and stayed there up to January, 2017. At the instance of the petitioner, she resumed company with him and they started living in a Flat at Tope Sherkhania, Jammu. Complainant alleged further that three months after their marriage she became suspicious about character of the petitioner and that he was already a married man. She approached the residential house of petitioner at Roop Nagar, Jammu where on inquiry his mother said that petitioner was not already married. At a later stage, she, however, came to know that petitioner has already been married to one Sabia Sambyal in the year 2002 and that wedlock has procreated two daughters. Complainant alleged in the complaint that she had bona fidely believed that the petitioner was her husband and cohabited with him under that belief but the intention of the petitioner was to cheat her and to have sexual intercourse with her for his sexual pleasure knowing that he is not her husband. She alleged also that the petitioner intentionally and deliberately kept her in dark during the entire period by not divulging that he was already a married man and thereby committed offences under Sections 376, 406, 420, 493, 494, 495, 496 and 497 RPC.
3. Learned counsel for the petitioner, Mr. Rohit Kohli, Advocate, submitted that petitioner has been falsely implicated by the complainant and the FIR has been lodged with oblique motive of victimizing and harassing the petitioner. While denying the allegations leveled in the FIR in general, learned counsel submitted in particular that there is huge unexplained delay in lodging the FIR in view of the admission of the complainant that the marriage was solemnized in February, 2014 and she suspected that petitioner was a married man after about three months of their marriage. Learned counsel argued further that no cognizable offence, much less an offence under Section 376 RPC, can be said to have been committed on the basis of the allegations leveled by the complainant as alleged second marriage at the most constitutes an offence under Section 493 RPC, which is a non-cognizable offence.
4. Per contra, learned Sr. AA G, Mr. S.S. Nanda and learned counsel for complainant, Mr. M.A. Bhat, submitted that the petitioner proposed and solemnized marriage with the complainant by concealing the factum of his first marriage. The complainant cohabited with and allowed sexual relation with the petitioner under the impression that he was her legally wedded husband but to the knowledge of the petitioner he was not his legally wedded husband for the marriage having been solemnized in the life time of the first wife of the petitioner, which fact was known to the petitioner but not to the complainant so offences of cheating, criminal breach of trust and rape have been committed by the petitioner.
5. Admitted position, thus, emerging is that the complainant, who was a grown up person at the relevant time remained in close acquaintance with the petitioner and they had been frequently chatting on social media, SMS and whatsapp till they got married. She accepted petitioner's proposal for marriage with him. They got married and cohabited for fairly long period of over two years, even though the complainant had suspected that the petitioner was already a married man just after three months of their marriage. She, however, alleges to have lodged a report in this regard for the first time at Police Station, Pir Mitha, somewhere in June, 2017, that is, more than two years after their marriage followed by the complaint in the court leading to registration of the impugned FIR.
6. The primary question, thus, arising in the given fact situation is; whether commission of offence under Section 376 RPC or any other cognizable offence is prima facie made out and there is a case for registration of the FIR and investigation?
7. Offence of Rape is defined under Section 375 RPC. Any one of the sexual acts as specified in clauses (a), (b), (c) and (d) of Section 375 when committed by a man with a woman under any one of the seven circumstances described as firstly to seventhly' therein amounts to commission of rape by that man. One of these circumstances, described as 'secondly' in section 375, which is relevant in this case, is when sexual act is committed without consent of the woman and another circumstance, described as 'fourthly', which is relevant too, is when the sexual act is committed with the consent of the woman "when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married'. Exception 2 to Section 375, however, provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. (See. Independent Thought v. Union of India and another MANU/SC/1298/2017 : AIR 2017 SC 4904)
8. As per the complainant's version, the sexual relation between the petitioner and the complainant started and continued for over two years after they had tied the nuptial knot, so sexual intercourses with the complainant by the petitioner cannot be said to have been committed without consent of the complainant. The question raised, however, is whether the acts of sexual intercourse said to have been committed by the petitioner with the complainant fall under description 'fourthly. This, however, would not be because description fourthly' relates to a case of mistaken identity of the identity of the man as it is attracted against a man who is not husband of the woman and the consent is given by the woman under the belief that he is 'another man' to whom she is or believes to be legally married. Here the petitioner to the knowledge of the complainant was her husband. The sexual intercourses said to have been committed by the petitioner with the complainant, therefore, are not covered within the wide definition of offence of rape as defined under Section 375 RPC.
9. The case set up by the complainant, however, to reiterate at the cost of repetition, is that the petitioner solemnized the marriage with her by concealing the factum of his first marriage and that he committed sexual intercourses with her knowing that they were not legally married because of the marriage having been deceitfully managed by the petitioner during the subsistence of his first marriage by concealing the factum of the first marriage. Such a fact situation, however, is covered under Section 493 RPC as also to some extent under Section 494 RPC comprised in Chapter XX under the heading "of offences relating to marriage" and not under Section 375/376.
10. An offence under Section 493 RPC is committed when a man by deceit causes a woman, who is not lawfully married to him to believe that she is lawfully married to him and to cohabit and have sexual intercourse with him in that belief. Likewise, offence under Section 494 is committed when a person 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 time of such husband or wife.
11. It is alleged by the complainant that the petitioner solemnized marriage with her in the life time of his first wife by concealing the factum of his first marriage from her. The petitioner's marriage with the complainant, therefore, can be said not to be a lawful marriage as it is not denied that they are governed by Hindu Marriage Act. In that the complainant cannot be said to have been lawfully married with the petitioner, which fact was known to him. The petitioner by solemnizing marriage with the complainant by concealing the factum of his first marriage and cohabiting and having sexual intercourse with her at the most can be said to have committed offences under Sections 493 & 494 RPC but not the offence of rape under Section 376 RPC or offence of cheating as defined under Section 420 RPC or offence of criminal breach of trust under Section 406 RPC.
12. Offences under Sections 493 and 494 RPC, however, are non-cognizable offences and not only that, prosecution for these offences is governed under Section 198 Cr.P.C. which provides inter alia that no court shall take cognizance of an offence falling under Sections 493 to 496 (both inclusive) RPC except upon a complaint made by a person aggrieved by such offence. Here as far as the offence under Section 493 is concerned, the aggrieved person is the complainant, whereas for offence under Section 494 the aggrieved person would be the first wife of the petitioner. Prosecution can be launched by filing a complaint by either of them.
13. The term "complaint" has been defined under Section 4(e) Cr.P.C. which reads:
"(e) "Complaint".- "Complaint" means, the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but it does not include the report of a police-officer"
14. Here in this case, the respondent No. 3 did not file complaint in terms of Section 4(e) Cr.P.C. She did not even sought an order from the Magistrate within the purview of section 155 (2) Cr.P.C. for investigation in a non-cognizance offence. She rather filed a complaint in terms of Section 156(3) Cr.P.C. seeking a direction for registration of the FIR. The registration of the FIR, however, cannot sustain as neither of the offences which can be said to have been committed by the petitioner is a cognizable offence. Not only that given the facts and circumstances of the case, no investigation in the matter is required and the prosecution could have been commenced on filing a complaint in terms of section 4(e) Cr.P.C. read with section 198. It is well settled that an FIR can be quashed if the accusations therein do not disclose/constitute a cognizance offence but constitutes only a non-cognizable offence.
15. Viewed thus, this petition has merit and is allowed. The impugned FIR No. 103/2017 of Police Station, Bakshi Nagar, Jammu is quashed.
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