Cognizance of the offence under Section 494 IPC can only be taken on a complaint filed by the aggrieved person as per Section 198(1) and (2) of the Code, and criminal proceedings must be instituted and continued according to the provisions of the Code.

VIRENDRA KUMAR SRIVASTAVA, J.

1. The instant application under Section 482 Code of Criminal Procedure 1973 (Code) has been filed for quashing the charge-sheet no. nil of 2004, dated 18.4.2005, U/s 494 Indian Penal Code (IPC), Police Station Nagina Dehat, District Bijnore as well as criminal proceedings of Criminal Case No. 1410 of 2005 (State vs. Iftekhar Ahmad), U/s 494 of IPC, pending before ACJM, Nagina Dehat, Bijnor.

2. Heard learned counsel for the applicants Sri Mohd. Afzal and Sri Anirudh Sharma, learned AGA for the State. None is present on behalf of the respondent no. 2.

3. From perusal of material on record, it transpires that respondent no. 2 Some Dutt Sharma lodged First Information Report (FIR) at P.S. Nagina Dehat, District Bijnor with an allegation that Iftekhar Ahmad (applicant no. 1) and his uncle Jahid Husain had enticed away his niece Smt.Deep Sikha Sharma (applicant no. 2). The Investigating Officer, during investigation recorded the statement of victim Smt. Deep Sikha Sharma (applicant no. 2), who stated that she had voluntarily gone to Delhi and applicant no. 1 Iftekhar Ahmad had no concern with her. It was further discovered that Smt. Deep Sikha Sharma (applicant no. 2) is legally wedded wife of one Sanjay Sharma and is mother of two sons. The Investigating Officer after investigation found that the allegation of kidnapping of the applicant no. 2 was false but found that the offence of bigamy is made out as Deep Shikha Sharma (applicant no. 2) being legally wedded wife of one Sanjay Sharma again married with Iftekhar Ahmad (applicant no. 1) and filed a charge-sheet against applicants under Section 494 IPC. Learned Magistrate after taking the cognizance noted on the charge-sheet as below.

Seen and register the cognizance taken.

S.D.

A.C.J.M.

23.12.2005

4. Aggrieved by the aforesaid order, applicant no. 1 Iftekhar Ahmad and applicant no. 2 Smt. Deep Sikha Sharma have filed this application.

5. Learned counsel for the applicants submits that the offence under Section 494 IPC is non-cognizable. According to Section 198 (1) (b) of the Code, such cognizance can be taken only on the complaint filed by the person authorized under the said Section. Learned Magistrate cannot take the cognizance of such offence on police report. Hence, the order passed by the learned Magistrate is against the provision of law and impugned order as well as criminal proceedings is liable to be quashed.

6. Learned AGA supporting the impugned order has submitted that the applicants can agitate their grievance at appropriate stage before learned Magistrate. The impugned order passed by the learned Magistrate cannot be quashed at this stage.

7. Section 494 IPC is an offence of bigamy which is covered under Chapter XX of IPC. Section 198 of the Code provides that in matrimonial offences as provided under Chapter XX of the IPC, a prosecution can be launched only on the complaint made by the person aggrieved as enumerated in Sec. 198(1) and 198(2) of the Code. Relevant provision of Section 198(1) and 198(2) of the Code are quoted as under:-

S. 198 (1)-”No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon an complaint made by some person aggrieved by the offence.”

Provided that:-

[a] ..........................................

[b] ..........................................

[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, with the leave of the Court, by any other person related to her by blood, marriage or abduction”.

(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 hu