CRR No. 2259 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRR No. 2259 of 2007 (O&M) Date of decision: 15.02.2012 Kulwant Kaur ........ Petitioner Versus Narinjan Singh and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. Arun Abrol, Advocate for the petitioner Ms Baljeet Mann, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. The present revision petition is against the order dated 02.06.2007 passed by the Additional Sessions Judge, Gurdaspur whereby, the respondents have been discharged and the order dated 01.04.2006/18.05.2006 passed by the learned Judicial Magistrate Ist Class, Gurdaspur has been set aside. Earlier a complaint was filed by the petitioner against the respondents under Sections 498-A, 406 IPC. However, the said complaint CRR No. 2259 of 2007 (O&M) 2 was dismissed vide order dated 01.06.2002 passed by JMIC, Gurdaspur. On the dismissal of the said complaint, the order dated 01.06.2002 had become final uptill the Additional Sessions Judge. The respondents/accused were discharged of the offence under Sections 498-A, 406 IPC While challenging the impugned order dated 02.06.2007 passed by the Additional Sessions Judge, Gurdaspur, whereby, the order dated 01.04.2006 passed by JMIC, Batala was set aside, learned counsel for the petitioner has raised the arguments that the said order dismissing the complaint was only on the ground of jurisdiction and as such, the same could not have been taken into consideration for coming to the conclusion that the accused stood discharged of the said offence. Secondly, the Additional Sessions Judge, Gurdaspur, set aside the said order also on the ground that Sections 498-A, 406 IPC being non-cognizable offence, no FIR is maintainable. Whereas, it is settled proposition of law that if one of the offences is cognisable, the FIR will be maintainable. Reliance was placed on the judgement rendered by the Apex Court in the case of State of Orissa v. Sharat Chandra Sahu 1997 AIR (SC) 1. Learned counsel for the respondents, while vehemently opposing the revision petition submitted that the complaint was dismissed not only on the ground of jurisdiction but also on merits and the respondents/accused were acquitted by the Magistrate of the charges under Sections 498-A, 406 IPC by taking into account the entire evidence, including the photographs of the marriage and that the fact that no dowry article was either demanded or given. Moreover, the respondents/accused have not been summoned under Section 406 IPC and no revision has been CRR No. 2259 of 2007 (O&M) 3 filed against the same. Thus, the Additional Sessions Judge, Gurdaspur has rightly held that the respondents could only be charged for offence under Sections 494/495 IPC and not for offence under Sections 498-A/406 IPC. Accordingly, only offences which were left in which the charges could be framed were under sections 494/495 IPC, for which, no FIR was maintainable in view of the provisions of Section 198 of the Cr.P.C. Heard. It is not disputed that the complaint under Section 498-A/406 IPC was filed by the petitioner against the present respondents for the same offence as alleged in the FIR. The said complaint was dismissed by the JMIC, Gurdaspur, vide order dated 01.06.2002 passed by the JMIC, Gurdaspur. The operative part of the said order reads as under:- “From all this, it is very much clear that either the complainant has concealed the material facts from the Court or has filed complaint on the basis of false and fabricated facts. CW3 is uncle of the complainant. He is an interest witness. Not only this, he is inimical towards the accused as a case under Section 336 IPC was got registered against him by the accused which case was converted into offence under Section 307 of the IPC. PW2 Rajinder Singh is brother of the complainant. As per version of the complainant in the cross examination, she was kicked out from Jalandhar. This witness in his cross examination says that the complainant was slapped in his presence at Sri Hargovindpur and he brought his sister to the house of her parents on the Scooter. From all this, it is clear that either the complainant is telling a lie or this witness is telling a lie. Examination – in – Chief of all these three witnesses stands shattered from the material irregularities and CRR No. 2259 of 2007 (O&M) 4 illegalities during cross examination. Evident on the file is such which does not inspire the confidence of this Court to believe the same to be true. The evidence on the file is insufficient to frame a charge. Let us assume for the sake of arguments that any cruelty for bringing less dowry has been committed on the complainant even then no charge in the Court of Judicial Magistrate at Gurdaspur can be framed as the cruelty if any is committed either at Sri Hargovinder, Patiala or Jalandhar and any of the above said Courts have the jurisdiction. Taking into consideration from any angle prima facie no offence is made out. Jurisdiction of the Court of Judicial Magistrate at Gurdaspur is barred. As such no charge can be framed. Resultantly, the complaint is dismissed and accused are discharged.” Thus, it is evident from the perusal of the above that the complaint was dismissed both on the ground of jurisdiction and also on merit. Appeal was filed by the petitioner. The said appeal was dismissed by the Additional Sessions Judge, Fast Track Court, Gurdaspur, vide its order dated 29.11.2004. Operative part of the said order reads thus:- “Even otherwise also, as I have already discussed in earliest part of this judgement, that the complainant has not been able to tell the date, time, day or year, on which she was maltreated or beaten up or subjected to cruelty by the respondents. She admits that after 10 days of her marriage, she started residing at Patiala with her husband. She spent 8 months at Patiala and then she came to Jalandhar with her husband in view of the transfer of her husband from Patiala. Admittedly, respondents No. 2 to 4 used to reside separate from the CRR No. 2259 of 2007 (O&M) 5 complainant and accused No. 1. Ex D1 to Ex D8 photographs show that marriage of the parties was very simple and as per 'Gur Maryada'. So in view of all these facts and circumstances, no offence under section 498-A IPC is made out against the accused for the purpose of framing charge against them. Findings of learned lower Court given in impugned order ini this regard have been correctly recorded. Since learned lower Court had no jurisdiction, so Authority relied upon by learned counsel for revisionist i.e. 2002 (3) RCR (Crl.) page 267 is not applicable to the present case. This revision is totally devoid of any merit and it deserves to be dismissed. Impugned Order is perfectly legal one and it does not call for any interference of this revisional Court. 10. As an upshot of this brief discussion, this revision fails and same is dismissed. Lower Court record be sent back along with copy of this order. This revision file be consigned to the record room.” The petitioner did not challenge the said order and the same has attained finality. It is, therefore, evident that the complaint was dismissed both on the ground of jurisdiction and merit. As such, the Additional Sessions Judge, Gurdaspur, while setting aside the order dated 01.04.2006 passed by JMIC has rightly held that since the respondents/accused have already been acquitted of the offence under Sections 498-A, 406 IPC, the said charges cannot be framed against them afresh in the present case on the basis of same set of allegations. Once, the respondents/accused are discharged of the said offence, the only charges that can be framed are under Sections 494/495 IPC. It is not disputed that the aforesaid offences are non-cognizable. In the absence of cognizable offence, the FIR qua non CRR No. 2259 of 2007 (O&M) 6 cognizable offence is not maintainable. Section 198 of the Cr.P.C. reads as under:- 198. Prosecution for offences against marriage. (1) No court shall take cognizance of all 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: In the present case, both offences are non-cognizable. Thus, the judgement relied upon by the learned counsel for the petitioner in the case of Sharat Chandra Sahu (supra) is not applicable in the facts of the present case as in that case one of the offences was congnizable. Thus, the Additional Sessions Judge, Gurdaspur has rightly held that the trial Court has taken cognizance and framed charge on these offences ignoring the specific bar contained in Section 198 (1) Cr.P.C for which only a complaint is maintainable. No other argument was raised. In view of the above, no fault can be found in the well reasoned orders passed by the Additional Sessions Judge, Gurdaspur. Dismissed. (Nirmaljit Kaur) Judge 15.02.2012 mohan