L. Mohapatra, J.
1. This application under Section 482. Cr.P.C. has been filed challenging the order dated 21.5.1992 passed by the learned S.D.J.M.. Bhanjanagar in G.R. Case No. 374 of 1991 taking cognizance of commission of offence under Section 493 of the Penal Code as well as for quashing the proceeding in the said G.R. Case.
2. From the record, it appears that one Satrughana Pradhan, who is the uncle of the victim lady lodged an F.l.R. in Buguda P.S. alleging therein that the victim girl having lost her parents was brought up by her uncle Udayanath Nayak and was staying in his house. It is further alleged that the petitioner has landed properties near about the lands of said Udayanath Nayak and in that connection he used to come to the house of Udayanath Nayak and in the process developed the affairs with the victim. The said affair resulted in physical relationship and the victim became pregnant. When a proposal was given to the petitioner for getting married to the victim, the said proposal was turned down resulting in lodging of the F.l.R. Initially, it appears that the case was registered for commission of offences under Sections 420 and 493 of the Penal Code and after completion of investigation, charge-sheet was submitted for commission of offence under Section 493 of the Penal Code.
3. Shri Padhi, the learned senior counsel for the petitioner submitted that none of the ingredients of Section 493 being satisfied, the learned Magistrate could not have taken cognizance of the said offence and has mechanically acted on the basis of the charge-sheet submitted by the Investigating Officer. Shri Padhi further submitted that for the purpose of Section 493 of the Penal Code, a complaint is required to be filed and on the basis of the report of the police, the learned Magistrate has no jurisdiction to take cognizance. In support of such contention, the learned counsel referred to Section 198 of the Code of Criminal Procedure.
4. There is no dispute that the petitioner was in visiting term to the house of Udayanath Nayak where the victim was staying and had developed physical relationship with her. There is nothing in the F.I.R. that such physical relationship was not with the consent of the victim who is undisputedly a major girl. There is also no dispute that neither there was any promise for marriage nor the victim was kept under the impression that she was the married wife of the petitioner. Rather on plain reading of the F.I.R. it appears that only after the victim was pregnant, a proposal was given to the petitioner for the purpose of marriage which was turned down. On perusal of Section 493 of the Penal Code, it appears that a deceit causing a false belief in the woman in the existence of a lawful marriage and having sexual intercourse such a woman by creating such a belief can only attract the provision. In the present case the deceit part of the ingredients is absent. In this connection, reference may be made to a decision of the Full Bench of the Kerala High Court in the case of Moideenkutty Haji v. Kunhikoya reported in A.I.R. 1987 Kerala 184. Relevant paragraph of the said decision is quoted below :
'Before passing on to the main issue, we shall consider the question which is exclusive to Crl. M.C. 17 of 1985. Section 493, I.P.C. is one of the offences relating to marriage. The Section does not penalise mere cohabitation or sexual intercourse with a woman who is not lawfully married to him. The Section is attracted only when certain other ingredients are also associated therewith. The Section envisages the case when a man deceitfully induces a woman to have sexual intercourse with him causing her to believe that she is lawfully married to him. The essence of the Section is therefore the deception caused by a man on a woman, in consequence of which she is led to believe that she is lawfully married to him while, in fact, they are not lawfully married. In order to establish deception there must first be allegations that the accused falsely induced her to believe that she is legally wedded to him. In the complaint in this case there is no allegation of any such deception or inducement. In a case where both the man and woman fully knew that they are not husband and wife and no ceremony of marriage took place between them, there is no question of one of them believing otherwise. Even if the entire allegations in the complaint are taken as true the Section is not being attracted. The allegation is that though they are not husband and wife they had sexual union during late hours in the night for a pretty long time. What is alleged in the complaint is only a promise to marry in future. The strange part of it is, there is the further allegation that one day they went for registering the marriage, but the petitioner ran away from there and even thereafter she was submitting herself to him regularly for liaison. The facts cannot at any rate attract Section 493, I.P.C.'
This decision has subsequently been followed in the case of Janaki Kumar Das v. Gajendra Das reported in 1990 (II) O.L.R. 100 and 1998 Cri. L.J. 1 757 in the case of Akhaya Kumar v. State of Orissa.
4. On consideration of the facts of the present case and the principle of law laid down by the Courts as stated above, I have no doubt in my mind that the ingredients of Section 493 are absent in this case and accordingly the learned Magistrate could not have taken cognizance of the said offence.
5. So far as the second submission of the learned counsel for the petitioner is concerned, there appears to be considerable force therein. Though initially the case was registered for commission of offences under Sections 420 and 493 of the Penal Code, charge-sheet was filed for the offence under Section 493 of the Penal Code. Section 198. Cr.P.C. provides as follows :-
'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 Section 495 of the Indian Penal Code (45 of 1860), is the wife, complaint may be made 6n 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.
(2) For the purpose 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.(3) When in any case failing 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.
(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.
(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.
(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 fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this Section apply to the abatement of, or attempt to commit an offence as they apply to t he offence.'
6. On plain reading of the said Section clearly indicates that the procedure adopted by the learned Magistrate runs contrary to what has been provided for in the said Section and no complaint, admittedly has been filed by the victim for commission of offence under Section 493 of the Penal Code. In this connection, a decision of this Court in the case of Simanchal Mishra v. State of Orissa reported in 2001 (II) OLR. 381 may be referred to. The learned counsel for the State placed reliance on a decision of the Apex Court in the case of State of Orissa v. Sarat Chandra Sahu and Ors. reported in A.I.R. 1997 S.C. 1. On reading of the facts of the said case, I am of the view that it has no application to the present case. In the decision of the Apex Court a complaint was filed for commission of offences under Sections 494 and 498-A of the Penal Code and Section 498-A being a cognizable offence, the Apex Court relied on Section 155(4), Cr.P.C. and held that the learned Magistrate was justified in taking cognizance. Here the case is completely different. The charge-sheet having been filed for commission of offence under Section 493 of the Penal Code which is non-cognizable offence, the learned Magistrate could not have entertained the charge-sheet and take cognizance on the basis of the same for the offence alleged.
7. In view of discussions made above, the Application is allowed and the order dated 21.5.1992 taking cognizance is quashed and consequently cognizance having not taken for any other offence, the G.R. Case No. 374 of 1991 pending in the Court of the learned S.D.J.M., Bhanjanagar also stand quashed.