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2011 Supreme(MP) 883
2012(1) JLJ 256
Anil Sharma, J.
Mahesh Kumar Dhawan v. State of M.P.
Miscellaneous Criminal Case No.6332 of 2011 (Gwalior) : against criminal proceeding pending before Judicial Magistrate First Class, Gwalior in Criminal Case No.14648 of 2008; Decided on 9.12.2011.
V.D. Sharma and Rajesh Shukla for petitioner;
Prabal Solanki, Public Prosecutor for respondent No.1/State.
Headnote:(1) Penal Code, 1860 -- Ss.498A, 504, 493, 495 and 376 -- Criminal P.C., 1973 -- Ss.198 and 188 -- second marriage by accused concealing his first marriage -- null and void -- offence of cruelty with wife not made -- bodily relationship with second wife -- will not fall in the category of rape -- instead, will fall within the category of offences u/ss 493 and 495 of IPC -- but, cognizance of offences under these two sections could not be taken without complaint of victim -- cognizance on police report by trial Court is abuse of process of law.
Held : In view of the foregoing reasons, the offence punishable under section 498A of IPC is not made out as the allegation regarding misbehaviour or harassment is only when the complainant had come to know about first marriage of petitioner, therefore, if the marriage of complainant with the petitioner is taken to be solemnized she being the second wife, the allegation of misbehaviour or harassment will not fall under the category of offence punishable under section 498A of IPC. So far as the offence punishable under section 376 of IPC is concerned, the alleged intercourse was a result of marriage of complainant with the petitioner, therefore, firstly the intercourse with the wife does not fall in the category of rape, secondly, if the intercourse has been committed under suppression of fact of first marriage, it may fall under the category of offence under sections 493 and 495 of IPC and does not fall under the category of offence punishable under section 376 of IPC. Further the cognizance of offence punishable under sections 493 and 495 of IPC cannot be taken on the basis of police report and even if all the above circumstances are treated as legal, the trial Court is not competent to proceed with trial in absence of any previous sanction of Central Government under the provisions of section 188 of CrPC as all the offences have been committed outside India at Abudhabi where the complainant lived with the petitioner. (2009)3 SCC (Cri.) 36 followed. 1988 Cri.LJ 544 relied on.
(2) Criminal P.C., 1973 -- S.188, proviso -- trial of extra territorial offences committed by Indian citizen outside India -- needs previous sanction from Central Government -- all proceedings null and void in absence of that. (2011)3 SCC (Cri.) 772 followed. [Paras 15 & 16
¼1½ naM lafgrk] 1860 && /kkjk 498d] 504] 493] 495 rFkk 376 && naM izfØ;k lafgrk] 1973 && /kkjk 198 rFkk 188 && vfHk;qDr }kjk vius izFke fookg dks Nqikdj f}rh; fookg && vd`r rFkk ‘kwU; && iRuh ds lkFk Øwjrk dk vijk/k ugha curk && f}rh; iRuh ds lkFk ‘kkjhfjd laca/k && cykRlax dh dksfV esa ugha vk,xk && blds ctk,] naM lafgrk dh /kkjk 493 rFkk 495 ds v/khu vijk/kksa dh dksfV esa vk,xk && ijarq bu nksuksa /kkjkvksa ds v/khu vijk/kksa dk laKku ihfM+r ds ifjokn ds fcuk ugha fy;k tk ldrk && fopkj.k U;k;ky; }kjk iqfyl fjiksVZ ij laKku fof/k dh izfØ;k dk nq:i;ksx gSA
vfHkfu/kkZfjr % iwoZorhZ dkj.kksa dks n`f"Vxr j[krs gq,] naM lafgrk dh /kkjk 498d ds v/khu naMuh; vijk/k ugha curk gS D;ksafd nqO;Zogkj rFkk izrkM+uk ds laca/k esa vkjksi dsoy rc gS tc ifjoknh us ;kph ds izFke fookg ds ckjs esa tkuk] blfy,] ;fn ;kph ds lkFk ifjoknh dk fookg f}rh; iRuh dh Hkk¡fr fd;k x;k] nqO;Zogkj ;k izrkM+uk dk vkjksi naM lafgrk dh /kkjk 498d ds v/khu naMuh; vijk/k dh dksfV esa ugha vk,xkA tgk¡ rd naM lafgrk dh /kkjk 376 ds v/khu naMuh; vijk/k dk ljksdkj gS] vfHkdfFkr laca/k ;kph ds lkFk ifjoknh ds fookg dk ifj.kke Fkk] blfy,] igyk] iRuh ds lkFk laca/k cykRlax dh dksfV esa ugha vkrk gS] nwljk] ;fn izFke fokg ds rF; dks Nqikdj laca/k cuk;k x;k gS] ;g naM lafgrk dh /kkjk 493 rFkk 495 ds v/khu vijk/k dh dksfV esa vk ldrk gS u fd naM lafgrk dh /kkjk 376 ds v/khu naMuh; vijk/k dh dksfV ds v/khu vkrk gSA blds vfrfjDr] naM lafgrk dh /kkjk 493 rFkk 495 ds v/khu naMuh; vijk/k dk laKku iqfyl fjiksVZ ds vk/kkj ij ugha fy;k tk ldrk rFkk Hkys&gh mi;qZDr lHkh ifjfLFkfr;k¡ oS/k ekuh tk,a] fopkj.k U;k;ky; naM izfØ;k lafgrk dh /kkjk 188 ds mica/kksa ds v/khu dsanz ljdkj dh fdlh iwoZ eatwjh ds vHkko esa fopkj.k dh dk;Zokgh djus ds fy, l{ke ugha gS D;ksafd lHkh vijk/k Hkkjr ds ckgj vkcw/kkch esa fd, x, tgk¡ ifjoknh ;kph ds lkFk jghA ¼2009½3 ,l lh lh ¼fØ-½ 36 vuqlfjrA 1988 lhvkj ,y ts 544 voyafcrA
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 188] ijarqd && Hkkjr ds ukxfjd }kjk Hkkjr ds ckgj fd, x, jkT;{ks=krhr vijk/kksa dk fopkj.k && dsanz ljdkj dh iwoZ eatwjh vko‘;d && blds vHkko esa lHkh dk;Zokfg;k¡ vd`r rFkk ‘kwU;A ¼2011½3 ,l lh lh ¼fØ-½ 772 vuqlfjrA ¼iSjk 15 ,oa 16
1. Petitioner has filed this petition under section 482 of Code of Criminal Procedure, 1973 for quashing the criminal proceeding pending before learned Judicial Magistrate First Class, Gwalior in Criminal Case No.14648/08 whereby the cognizance for the offences punishable under sections 498A, 504, 493, 495 and 376 of IPC has been taken against the petitioner.
2. Brief facts of the case in narrow compass are that, respondent No.2 (Smt. Kiran Khare) has made a written complaint alleging therein that her marriage was solemnized with the petitioner on 31.3.2007 and till 13.4.2007 they were residing at City Centre, Gwalior and during this period petitioner had made physical relation with the complainant-respondent No.2. On 13.4.2007 petitioner went Delhi for going Dubai. When they were residing at Dubai, some documents were found in the beg of the petitioner thereby complainant came to know that the petitioner is already married person and he had 15 years old son. In the complaint, it is further alleged that the petitioner has committed cheating and suppressed the fact with regard to his earlier marriage. On 25.7.2007, the complainant was sent back to New Delhi and thereafter, she made a call to first wife of petitioner. It has been further alleged that the petitioner has threatened the complainant that if she told anything about it, he will kill her mother, father and brother. Thereafter, the complainant has filed an application before Superintendent of Police and Superintendent of Police, Gwalior ordered to register the case and thereafter, the FIR has been registered against the petitioner at Crime No.63/07 for the offences punishable under sections 498A, 504, 493, 495 and 376 of IPC at Gwalior and on filing the challan, criminal case bearing No.14648/08 is pending in the Court of Judicial Magistrate First Class, Gwalior.
3. The charge-sheet has been filed before learned Judicial Magistrate First Class, showing the petitioner as absconding accused. Aggrieved by the criminal proceedings registered against the petitioner, this petition has been filed by the petitioner by invoking the inherent jurisdiction of this Court under section 482 of CrPC for quashing the FIR and Criminal Case No.14648/08 pending before learned Judicial Magistrate First Class, Gwalior, mainly on the following grounds :
(i) Entire documents submitted by the plaintiff regarding her marriage with the petitioner are false and fabricated, no marriage of complainant-respondent No.2 with petitioner has ever been solemnized.
(ii) As per section 493 and 495 of IPC, cohabitation caused by a man deceitfully inducing in belief a lawful marriage and same offence with concealment of former marriage from person with whom subsequent marriage is contracted but in the case in hand, the prosecution could not show that the petitioner has concealed the fact that he was already married, therefore, in absence of any ingredients for the offence under sections 493 and 495 of IPC no case is made out against the petitioner.
(iii) It has been further alleged that for the offence punishable under section 493 and 495 of IPC the Court can only take cognizance on the basis of complaint filed by the victim herself and not on the basis of challan filed by the police.
(iv) The allegation of harassment of the complainant by the petitioner is at Dubai where the complainant had gone with the petitioner according to the allegation levelled by her but there is no allegation with regard to cruelty and further for an offence under section 498A of IPC or for any other offence which is committed outside India by a citizen of India, cannot be tried in India without prior permission of Central Government.
(v) Looking to the allegation made by the complainant she has been married with petitioner, therefore, the offence under section 376 of IPC is not made out.
4. Copy of challan papers has been filed by the petitioner. Learned counsel for the petitioner has drawn attention towards typed written complaint fi
