MOKDAM ALI Vs. STATE OF ASSAM

JUDGEMENT

(1.) BY filing this petition under Section 482 CrPC, read with Article 227 of the Constitution of India, the petitioners have put to challenge the registration of Barpeta P.S. Case No.327/09, under Sections 417/493/312/420/34 of the IPC, against the petitioners, as accused, the ground of challenge being that the First Information Report (in short, �FIR') does not disclose commission of offences under the penal provisions of Section 493 or Section 420 IPC and, hence, in such circumstances, the registration of the case aforementioned, under Section 493 and Section 420 IPC, was illegal and as far as the offences under Sections 417 and 312 IPC are concerned, the same, being non-cognizable, cannot be investigated by police in exercise of its powers under Section 156(1) Cr.P.C.

(2.) I have heard Dr. B. Ahmed, learned counsel for the accused-petitioners, and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam, appearing on behalf of the opposite party Nos.1 and

(3.) THERE is, admittedly, no allegations, in the FIR, that the informant was under the impression that the petitioner No.1 was her lawfully married husband. In fact, the contents of the FIR show that the informant, despite being fully aware of the fact that she was not the wife of accused-petitioner No.1, had allowed the accused-petitioner No.1 to have sexual intercourse with her under the belief that he would marry her. In such circumstances, penal provisions of Section 493 IPC were not attracted inasmuch as Section 493 is attracted only, when a man, by deceit, causes a woman, who is not lawfully married to him, to believe that she is lawfully married to him and, acting upon such belief, she cohabits or have sexual intercourse with him. Unless, therefore, a woman is deceived by a man to believe that she is lawfully married to him and she, under such belief, cohabits or have sexual intercourse with such a man, no offence, under Section 493 IPC, can be said to have been committed. In the case at hand, a bare reading of the contents of the complaint, which has been registered as the FIR, shows that the complainant (informant) had knowledge that she was not yet lawfully married to the accused-petitioner No.1, though she had allowed, according to what she alleges, the accused-petitioner No.1 to have sexual intercourse with her under the belief that he would, as had been promised by him, marry her. In such circumstances, rightly contends Dr. Ahmed, that the FIR does not make out any case attracting the penal provisions of Section 493 IPC.