Changing Label Of Offence From S.495 IPC To S.420 Does Not Overcome Bar On Cognizance For Offence Against Marriage U/S 198 CrPC: J&K&L High Court

As per Section 198 CrPC, a Court cannot take cognizance of an offences falling under Section 493 to 496 of RPC except upon the complaint made by some person aggrieved by such offences.

The bench of Justice Sanjay Dhar was hearing a petition through the medium of which the petitioner had thrown a challenge to the complaint filed by the respondent against them alleging commission of offences under Section 420 and 506 IPC. In their plea the petitioners had also challenged the order whereby Forest Magistrate Srinagar had taken cognizance of the complaint and after recording the satisfaction that offence under Section 420 IPC is made out against the petitioners is made out, issued process against them.

Background:

The available record before the court revealed that the respondent-complainant had approached petitioner Nos.1 and 2, who happen to be the parents of petitioner No.3, for formalizing the marriage between their children as a result of which marriage between son of the respondent and petitioner No.3 was solemnized on 5th February, 2011 at Delhi. Record further revealed that it later came to the knowledge of the son of the respondent-complainant that the petitioners have practised fraud upon him by concealing the fact that petitioner No.3 had a subsisting marriage with one Sheikh Arshul Firdousi. It is further averred in the complaint before magistrate that out of the wedlock between son of the respondent and petitioner No.3, one female baby is born. As a result of this development the relations between son of the respondent and petitioner No.3 became strained and ultimately resulted in a divorce. The Son of the respondent is presently stated to be residing in Thailand where he has established his own business.

The record on the file also revealed that the trial Magistrate after recording preliminary evidence, recorded his satisfaction that offence under Section 420 IPC is made out against the petitioner and issued process against them in terms of impugned order dated 04.06.2018. It was this order and this issuance of process which was a subject matter of challenge before the court.

Arguments:

Counsel for the petitioners primarily based his challenge on the ground that the impugned complaint has not been filed by the son of the respondent who is the aggrieved person but the same has been filed by the respondent who has no locus standi to file the same. He further contended that the Magistrate had issued the process against the petitioners in a mechanical manner without applying his mind to the facts and material available before him and, as such, the order passed by the Magistrate deserves to be quashed.

Observations:

Adjudicating upon the matter the bench observed that the concealment of former marriage from the person with whom subsequent marriage is contracted has been specifically made as an offence in terms of Section 496 of the IPC and therefore if a Muslim wife marries during the subsistence of her marriage with her husband or during the lifetime of her husband, exposes herself to prosecution for offence under Section 494 of RPC and her subsequent marriage is rendered void. When such a lady conceals the factum of her former marriage from the person with whom she contracts subsequent marriage, she is liable to be prosecuted for offence under Section 495 of IPC, the bench maintained.

"Thus, her alleged act squarely falls within the definition of offence under Section 495 of the RPC. The respondent, instead of choosing to prosecute the petitioners for offence under Section 495 of RPC, has chosen to prosecute them for offence under Section 420 of RPC. This appears to this Court, as a case where the respondent is trying to evade the bar to taking of cognizance of offence under Section 495 RPC created under Section 198 of the Cr. P. C", the bench recorded.

Explaining the law further the bench observed that as per the provisions contained in Section 198 of the CrPC, a Court cannot take cognizance of an offences falling under Section 493 to 496 of IPC except upon the complaint made by some person aggrieved by such offences and it is only that person, from whom the factum of earlier marriage has been concealed which has led to his contracting subsequent marriage, would come within the definition of 'aggrieved person' as contained in Section 198 of the CrPC.

"Though first and second proviso to said provision do provide for exceptional circumstances where a complaint can be made by some other person with the leave of the Court on behalf of the 'aggrieved person' but in the case of a husband, for prosecution of wife for an "offence under Section 495 of RPC, no such provision has been made. Therefore, the complaint filed by father on behalf of his son for prosecuting the wife and her relatives for offence under Section 495 RPC is clearly barred by law", explained Justice Dhar.

The bench further observed that in order to circumvent the aforesaid legal bar to filing of the complaint on behalf of his son, the respondent-complainant changed the label of the offence by making it one under Section 420 RPC instead of Section 495 RPC so as to avoid the legal bar contained in Section 198 of the CrPC. Prosecution for such an offence therefore, cannot be taken cognizance of by misdescribing it or by putting a wrong label on it, the bench noted.

Keeping in view the aforementioned position of law, the bench allowed the petition and accordingly the impugned complaint and the proceedings emanating therefrom against the petitioners were quashed.

Case Title: Bashir Ahmad Dada & Ors Vs Ghulam Mohi Ud Din.

Citation: 2022 LiveLaw (JKL) 120

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