# Jitendra & Ors v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-03
- **Case number:** Application U/S 482 No. 40201 of 2024
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-ors-v-state-of-u-p-anr-52977
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code,1860 -
Chapter
XX
-
Code
of
Criminal
Procedure,1973 - Section 198 (1)-No
cognizance u/s 198(1) Cr.P.C. -for an offence
punishable under Chapter-XX of IPC except
upon a complaint made by some person
aggrieved by the offence- whereupon the
Magistrate shall follow the procedure u/s 200
Cr.P.C. onwards -but it does not include the
police report i.e. a report under Section 173(2)
Cr.P.C-in the explanation to Section 2(d) of
Cr.P.C., a report by a police officer which
discloses a non-cognizable offence shall be
deemed to be complaint but this explanation is
not applicable under Chapter XX of IPC- no
complaint
in
the
present
case-
hence
chargesheet
itself
is
not
maintainable
-
cognizance order is vitiated- the procedure as
required not followed-impugned order rejected.

Application allowed. (E-9)

## Text

1 All. Jitendra & Ors. Vs. State of U.P. & Anr.
269
observations and findings recorded by the
trial Court in rejecting the application
under Section 311 Cr.P.C. of the applicant
under the facts and circumstances of the
case are fully sustainable. The trial Court
has committed no illegality or infirmity in
the order impugned by rejecting the
application of the applicant. There appears
no abuse of process of the Court also.
There is no evidence on record to satisfy
this Court that trial would be seriously
prejudiced if the said witnesses is not
recalled for re-examination or further
examination.

27. In view of the above, the
application of the applicant having no merit
deserves to be rejected. In the result, the
application is rejected.

28.
The
office
is
directed
to
communicate this order to the court
concerned to proceed with the case in
accordance with law.

29. The Court would like to appreciate
the hard work put in by Ms. Shreya Shukla,
Research
Associate,
who
has
drawn
attention to detail and the same shows in
her work of providing legal assistance in
this matter.
---------
(2025) 1 ILRA 269
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 40201 of 2024

Jitendra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
Counsel for the Applicants:
Aditya Prasad Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code,1860 -
Chapter
XX
-
Code
of
Criminal
Procedure,1973 - Section 198 (1)-No
cognizance u/s 198(1) Cr.P.C. -for an offence
punishable under Chapter-XX of IPC except
upon a complaint made by some person
aggrieved by the offence- whereupon the
Magistrate shall follow the procedure u/s 200
Cr.P.C. onwards -but it does not include the
police report i.e. a report under Section 173(2)
Cr.P.C-in the explanation to Section 2(d) of
Cr.P.C., a report by a police officer which
discloses a non-cognizable offence shall be
deemed to be complaint but this explanation is
not applicable under Chapter XX of IPC- no
complaint
in
the
present
case-
hence
chargesheet
itself
is
not
maintainable
-
cognizance order is vitiated- the procedure as
required not followed-impugned order rejected.

Application allowed. (E-9)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. The applicants have preferred
instant application under Section 482
Cr.P.C. challenging the charge sheet dated
10.04.2024,
cognizance
order
dated
19.07.2024 passed by Chief Judicial
Magistrate, Mathura and proceedings of
Criminal Case No. 63822 of 20241 arising
out of Case Crime No. 402 of 2023, under
Section 494 and 120-B IPC, Police Station
Jait, District Mathura.

2. Brief facts of the case are that a first
information report2 was lodged by opposite
party no. 2 on 30.09.2023 against 10 named
persons including the applicants, under
Sections 494 and 120-B IPC, alleging
therein that marriage of applicant no. 1 was
270 INDIAN LAW REPORTS ALLAHABAD SERIES
solemnized with opposite party no. 2 on
10.11.2016, according to Hindu rites and
rituals. Later, without obtaining divorce
from opposite party no. 2, applicant no. 1
has again solemnized his second marriage
on 27.12.2022 with one Smt. Anju at
District
Ballabhgarh,
Haryana.
The
applicant no. 6 was mediator in the
aforesaid second marriage as performed by
applicant
no.
1
with
Anju.
After
investigation, a charge sheet was submitted
on 10.04.2024 and the court concerned has
taken
cognizance
by
order
dated
19.07.2024, hence the present petition.

3. Learned counsel for the applicants
submits that the learned Magistrate has
overlooked the mandatory provisions of
Section 198 of the Code of Criminal
Procedure, 19733, which prohibits the court
to take cognizance of an offence punishable
under Chapter-XX of the Indian Penal
Code4 (Offences relating to marriage),
except upon the complaint made by some
person aggrieved by the offence. He further
submits that before proceeding with the
investigation, no permission under Section
155(2) Cr.P.C. was obtained by opposite
party no. 2 nor by the Investigating Officer,
hence, the entire proceedings are void and
illegal. In support of his submissions,
learned counsel for the applicants has relied
upon a judgement of this Court in the case
of Suraj Lal Jaiswal v. State of Uttar
Pradesh5.

4. It has further been argued by
learned counsel for the applicants that in
case the offence in question is noncognizable, registration of FIR under
Section 154 Cr.P.C. is bar. In context of
non-cognizable offence, only NCR under
Section 151 Cr.P.C. can be registered at the
concerned police station, and permission of
competent magistrate is mandatory for
carrying
out
investigation
of
noncognizable offences for which NCR is
lodged.

5. Relying upon the judgement of the
Apex Court in the case of Keshav Lal
Thakur v. State of Bihar6, learned
counsel for the applicants submits that the
police is entitled to investigate into a noncognizable offence, pursuant to an order of
a competent Magistrate under Section
155(2) Cr.P.C. In the present case, no such
order has been passed, therefore, the
cognizance order is bad in the eyes of law.

6. Stressing upon the aforesaid ground,
learned counsel for the applicants prays
that cognizance order and the proceedings
of the case instituted against the applicants,
may be quashed.

7. Learned A.G.A., on the other hand,
could not dispute the legal position as
argued
by
learned
counsel
for
the
applicants. However, he submits that a
detailed discussion of legal position has
been made by the court concerned in the
order dated 19.07.2024, vide which the
applicants have been summoned, therefore,
the procedure as followed by the court
concerned should have been in the manner
as to be done in a complaint case.

8. I have heard Sri A.P. Mishra,
learned counsel for the applicants, Sri
Mayank Awasthi, learned Brief Holder for
the State and perused the record.

9. Assailing the cognizance order and
the
proceedings
of
the
case,
under
challenge, arguments have been advanced
by learned counsel for the applicants in two
fold: firstly, that charge sheet is not
maintainable and cognizance can be taken
by the Magistrate in view of Section 198(1)
1 All. Jitendra & Ors. Vs. State of U.P. & Anr.
271
Cr.P.C.
Secondly,
for
non-cognizable
offences NCR can be lodged, in which
before proceeding with the investigation,
permission under Section 155(2) Cr.P.C. is
mandatory.

10. Before carrying out a detailed
discussion on the submissions made by
learned counsel for the applicants, it would
be appropriate to understand the provisions
of Sections 2(d) and Section 198(1) Cr.P.C.
which are thus:

"2. Definitions:

(d)
"complaint"
means
any
allegation made orally or in writing to a
Magistrate, with a view to his taking action
under this Code, that some person, whether
known or unknown, has committed an
offence, but does not include a police
report.

198. 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 offence:

Provided that-

(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;

(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;

 (c) where the person aggrieved by
an offence punishable under (section 494 or
495)7 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, with the leave of the
Court, by any other person related to her by
blood, marriage or adoption)8."

11. From reading of the aforementioned
provisions of Section 2(d) and 198(1)
Cr.P.C., it is clear that no cognizance can be
taken by the Magistrate in view of Section
198(1) Cr.P.C. for an offence punishable
under Chapter-XX of IPC except upon a
complaint made by some person aggrieved
by the offence, thus the complaint should be
made by an aggrieved person to the
Magistrate by making oral allegations or
moving an application, in writing, with a
view to his taking action under the Code, that
some person, known or unknown has
committed an offence, whereupon the
Magistrate shall follow the procedure laid
down in Section 200 Cr.P.C. onwards but it
does not include the police report i.e. a report
under Section 173(2) Cr.P.C.

13. Be that as it may, in the
explanation to Section 2(d) of Cr.P.C., a
report by a police officer which discloses a
non-cognizable offence shall be deemed to
be complaint but this explanation is not
applicable under Chapter XX of IPC, thus,
there was no complaint in the present case
hence chargesheet itself is not maintainable
and the cognizance order, therefore, on the
basis of such charge sheet is vitiated.

14. On perusal of the cognizance
order, this Court finds that though the court
concerned has noted that a complaint
272 INDIAN LAW REPORTS ALLAHABAD SERIES
should have been filed, thus, treating the
aforesaid as a complaint he should have
followed the procedure as laid down under
Sections 200 Cr.P.C. onwards.

15.
Having
gone
through
the
submissions advanced by learned counsel
for the parties and the legal proposition of
law, this Court finds that while summoning
the applicants the court concerned has
treated the same as a complaint case but
has not followed the procedure as required
calling the complainant to record her
statements under Section 200 Cr.P.C. and
followed other procedure as required under
a complaint case. Therefore, the order
impugned dated 19.07.2024 is quashed to
the extent that the case shall be treated as a
complaint case and after issuing notice to
opposite party no. 2 the court concerned
shall proceed in accordance with law as
required in a complaint case.

16. The parties are at liberty to move
recall application before this Court, if they
feel aggrieved by this order.

17. The application is accordingly
partly allowed.
---------
(2025) 1 ILRA 272
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 43911 of 2019

Faraheem Qureshi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Amir Khan

Counsel for the Opposite Parties:
G.A.

Criminal Law -Indian Penal Code,1860 -
Section 295-A-Applicant made certain post on
social media -F.I.R -only those words - spoken
or
written
with
deliberate
and
malicious
intention- to hurt the religious feelings of any
class of citizen-can be categorized as offence
u/s 295-A I.P.C-if it intends to insult a particular
political party or a group who are not
inextricably associated with any religion or its
belief will not attract the ingredients of Section
295-A I.P.C-entire proceedings quashed.

Application disposed. (E-9)

List of Cases cited:

1. Amish Devgan Vs U.O.I., (2021) 1 SCC 1

2. Ramji Lal Modi Vs St. of U.P., AIR 1957 SC
620

3. Mahendra Singh Dhoni Vs Yerraguntla
Shyamsundar & anr., (2017) 7 SCC 760
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Compromise affidavit filed on
behalf of the applicant is taken on record.

2. Heard Sri Amir Khan, learned
counsel for the applicant, Sri Saurabh
Kumar, holding brief of Sri Hemant
Sharma, learned counsel for the opposite
party no. 2 and Sri Pankaj Saxena, learned
A.G.A. for the State.

3. The present 482 Cr.P.C. application
has been filed to quash the entire
proceedings
of
charge
sheet
dated
18.02.2019 in Criminal Case No. 620 of
2019 under Section 295-A I.P.C., Police
Station-
Khurja
Nagar,
District-
Bulandshahr, pending in the court of