Allowed

Praveen Kumar Patel and 4 Others v. State of U.P. and Another

Allahabad HC18 Sept 2024A482/14519/2024

Case brief

AI extract

What is this about?

In this application under Section 494 CrPC, the Court held that a second wife cannot be a complainant for an offence under Section 494 IPC, which requires a valid marriage relationship. Consequently, the charge sheet filed under Section 494 IPC and Section 120B IPC was set aside. The complainant was granted liberty to file a fresh complaint under Section 495 IPC, which covers concealment of a form

What did the court decide?

Impugned order dated 23.08.2023 was set aside. Liberty granted to complainant to file a complaint under Section 495 IPC.

Praveen Kumar Patel and 4 Others vs State of U.P. and… — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:151632

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 14519 of 2024

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Applicant :- Praveen Kumar Patel And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Surat Patel Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Sri Ram Surat Patel, learned counsel for applicants has rightly pointed out that complainant being a second wife, cannot be a complainant for the purpose of an offence under Section 494 I.P.C. She may be a complainant for an offence under Section 495 I.P.C.

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The aforesaid legal position is being considered by this Court in case of Om Prakash Mishra and 2 others Vs. State of U.P. and another, 2024:AHC:143499 and relevant part thereof is reproduced hereinafter :-

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" 3. It has been brought into notice of this Court that if allegations are considered to be true, offence could be made out only under Section 495 IPC and for that in terms of Section 198 Cr.P.C., complainant has to file a complaint. For reference, Sections 494, 495 IPC and Section 198 Cr.P.C. are quoted below -:

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Section 494 IPC -: Marrying again during life- time of husband or wife.-

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Whoever, 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 of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Exception.-This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided

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the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

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Section 495 IPC -: Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.-

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Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Section 198 Cr.P.C. -: Prosecution for offences against marriage.-

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

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Provided that-

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(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

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(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf.

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(c) where the person aggrieved by an offence punishable under 1 [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 2 [, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].

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(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 husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

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(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

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(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

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(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

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(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under 3 [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.

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(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

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4. In aforesaid circumstances, charge sheet could not be filed since no offence could be made out

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under Section 494 IPC and consequently, since there is no relationship of husband and wife, therefore, Section 498-A IPC could also not be made out. ""

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In the aforesaid circumstances, impugned order dated 23.08.2023 passed in Complaint Case No.854 of 2022 under Section 494 I.P.C. against applicant No.1 and under Section 120B against applicant Nos.2, 3, 4 and 5, Police StationNawabganj, District- Prayagraj pending before the Court of Civil Judge, Junior Division/Judicial Magistrate Court No.-7, Allahabad cannot survive in its present form and accordingly, it is hereby set aside.

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However, The complainant will have a liberty to file a complaint for purpose of initiation of criminal proceedings for an offence under Section 495 I.P.C., if so advised.

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Since this order is passed without issuing notice to opposite party No.2, therefore, a copy of this order be sent to concerned Court who will inform this to complainant accordingly.

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Application is disposed of with aforesaid observation.

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Registrar (Compliance) to take steps.

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Order Date :- 18.9.2024 P. Pandey

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Digitally signed by :- PUSHPENDRA PANDEY High Court of Judicature at Allahabad

Praveen Kumar Patel and 4 Others v. State of U.P. and Another

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Praveen Kumar Patel and 4 Others v. State of U.P. and Another

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