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Munish Chajgotra Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (18 Apr 2018)

An FIR can be quashed, if accusations therein do not disclose a cognizance offence but constitutes only a non-cognizable offence

MANU/JK/0311/2018

Criminal

Present is a petition under Section 561-A of Code of Criminal Procedure, 1973 (CrPC) whereby Petitioner seeks quashing of FIR registered against him in terms of Section 156(3) of CrPC on a complaint lodged by Respondent No. 3 (complainant) for commission of offences under Sections 376, 406, 420, 493, 494, 495, 496 and 497 of Ranbir Penal Code (RPC). Petitioner submitted that, he has been falsely implicated by the complainant and the FIR has been lodged with oblique motive of victimizing and harassing the Petitioner. The primary question in present case is whether commission of offence under Section 376 of RPC or any other cognizable offence is prima facie made out.

Offence of Rape is defined under Section 375 of RPC. Any one of the sexual acts as specified in clauses (a), (b), (c) and (d) of Section 375 of RPC, 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 present 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.

The case set up by the Complainant 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 of RPC as also to some extent under Section 494 of RPC comprised in Chapter XX under the heading "of offences relating to marriage" and not under Section 375/376 of RPC.

An offence under Section 493 of 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 of RPC 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.

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 of RPC but not the offence of rape under Section 376 of RPC or offence of cheating as defined under Section 420 of RPC or offence of criminal breach of trust under Section 406 of RPC.

Offences under Sections 493 and 494 of RPC, however, are non-cognizable offences and not only that, prosecution for these offences is governed under Section 198 of CrPC which provides that, no Court shall take cognizance of an offence falling under Sections 493 to 496 of RPC (both inclusive) except upon a complaint made by a person aggrieved by such offence. Here as far as the offence under Section 493 of RPC is concerned, the aggrieved person is the complainant, whereas for offence under Section 494 of RPC, the aggrieved person would be the first wife of the Petitioner. Prosecution can be launched by filing a complaint by either of them. The term "complaint" has been defined under Section 4(e) of CrPC means, the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence but it does not include the report of a police-officer"

In present case, the Respondent No. 3 did not file complaint in terms of Section 4(e) of CrPC. She did not even sought an order from the Magistrate within the purview of Section 155 (2) of CrPC for investigation in a non-cognizance offence. She rather filed a complaint in terms of Section 156(3) of CrPC 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. No investigation in the matter is required and the prosecution could have been commenced on filing a complaint in terms of Section 4(e) of CrPC 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. Petition allowed. The impugned FIR is quashed.

Tags : FIR   INVESTIGATION   QUASHING OF  

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