VINOD K.SHARMA,J - (1.) THE petitioners seek the quashing of FIR No. 572 dated 28-10-2006 registered at Police Station, City Palwal, District Faridabad, under Sections 494, 420 and 120-B of the Indian Penal Code. The FIR registered against the petitioners reads as under : "To The Superintendent of Police, Palwal (Rural), Sir, It is humbly stated that I applicant Gian Chandi w/o Ram Pal, am resident of Seloti Tehsil Palwal, District Faridabad. Sir, Tej Pal and Ram Pal were two real brothers. I was married to Tej Pal s/o Shri Nathi. Around 10 years ago my first husband Tej Pal expired. His brother Ram Pal s/o Nathi neither has any living wife nor any child. Thereafter Nathi s/o Dharma my father-in-law also expired. Thereafter the respectable of the village and relatives get me wear bangles (karewa) from Ram Pal s/o late Shri Nathi. Since then I am living with him as his wife. Now some bad social elements and selfish persons have started to mislead my husband Ram Pal s/o Nathi with the intention to grab the property, which includes Sher Singh of Raidaska presently resident of Ram Nagar Palwal who had hatched a conspiracy by performing illegal and fictious marriage of his sister-in-law; some other persons present are also involved in the conspiracy with Sher Singh who by presenting themselves as police employees are threatening. Further Sher Singh etc. has got the land from my husband sold, and has grabbed all amount of Rs. 23 lacs and now they want to take possession of the house constructed by my husband in Ram Nagar, Palwal. A meeting of the panches of the village and all the relatives was held, in which I requested for justice then all of them got understand my husband and these selfish persons; at that time my husband was advised not to repeat the mistake again; but again those selfish persons got involved with my husband and the local police is also pressuring me to evict me from the house of my husband. Sir, I pray with folded hand that I should be given justice and case should be registered against Sher Singh etc. I shall be highly thankful to you. Accused have somewhere concealed my husband with bad intention. Applicant Sd/- RTI Gian Chandi w/o Ram Pal. Police Action : Application bearing No. 1720-P dated 11.10.06 was received from the office of Suprintendent of Police, Palwal from Gian Chandi R/O Seloti on which D.S.P. marked the same to I/C P.P. Camp to register a case after opinion from D.A. ASI Mahipal gave application to DA for opinion which was obtained in police post along with the opinion of D.A. In which D.A. has written as follows. I have gone through the contents of the complaint. The brief facts of the complaint is that Smt. Gian Chandi w/o Tej Pal has been remarried with Ram Pal 10 years ago after the death of her husband Tej Pal. Ram Pal remained with Smt. Gian Chandi 10 years as her husband with together. 5 Acres of land in the name of Ram Pal and he had sold 3 acres of land and remained with a lady Geeta D/O Atru on 15.5.06. So, an offence under section 494 IPC is made out against Ram Pal. Matter enquiry is suggested that the evidence be collected."
(2.) LEARNED senior counsel appearing on behalf of the petitioners contended that cognizance of offence in respect of Section 494 IPC cannot be taken on the basis of challan filed by the Police. It is the contention of the learned senior counsel for the petitioners that no complaint has been filed by the respondent No. 2 in respect of offence under Section 494 IPC in the Court.
(3.) IN support of this contention, learned senior counsel for the petitioners placed reliance on the judgment of this Court in the case of Surjit Singh v. State of Punjab, 2002(3) RCR(Criminal) 489, wherein this Court was pleased to lay down as under : "5. The grievance of the petitioner appears to be genuine one. Section 1998 Cr. P.C. debars the police from taking cognizance of such an offence since it is shown to be a non-cognizable one, nor the Ilaqa Magistrate could take cognizance of the offence on the police report. Section 198 Cr. P.C. empowers taking cognizance of an offence under Section 494/495 IPC by the Magistrate only upon a complaint made by some person aggrieved of the offence. Section 198(c) Crl. P.C. provides as under : "Prosecution for offences against marriage. - (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 office. Provided that - (a) xxx xxx xxx xxx (b) xxx xxx xxx xxx (c) Where the person aggrieved by an offence 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, or sister or with the leave of the Court by any other person related to her by blood, marriage or adoption." 6. Admittedly, no complaint was made before the Magistrate by the aggrieved person, at all i.e. by Sinder Kaur respondent No. 2. The action of respondent No. 3 ASI Karnail Singh in taking cognizance of the offence and making a report to the Magistrate was without any jurisdiction. Similarly, taking of the cognizance by the Magistrate on such a report was also against the provisions of section 198 Cr. P.C." ;