MAHENDRA KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) By the present revision under S.397/401 of the Criminal P.C., 1973, (for short the Code), the order dt. 22-11-84 passed by the Munsif Magistrate IV, Jhansi, in proceedings under Ss. 494/109/205/498, I.P.C., is sought to be quashed, as the alleged complaint made by Smt. Suman Devi Jain, opposite party 2, who was the wife of Mahendra Kumar Jain, applicant 1, has not filed the complaint to the Magistrate as provided by S. 198 of the Code. The present applicant 1 is the husband of opposite party 2, who has filed the alleged complaint, and applicant 2 is the real brother of applicant 1. Whereas applicant 3 is a relation of applicants 1 and 2. On behalf of the applicants an application was filed before the Magistrate that as the offence under the aforesaid sections was covered by Chap. XX of the Penal Code, hence the complaint should have been made by the aggrieved person, namely, opposite party 2, only to the Magistrate. But she preferred the complaint in the form of F.I.R. to the Superintendent of Police who, treating it to be a non-cognizable offence, obtained permission of the Magistrate to investigate. The investigation was completed and charge sheet was submitted against the applicant. According to the applicant in view of S. 198 of the Code, the complaint could have been filed only before the Magistrate and in no form either in the form of the First Information Report or in any other. By the impugned order that application has been rejected.

(2.) Sri M. S. Pipersenia, learned counsel for the applicant urged that S. 198 of the Code was mandatory, hence unless the complaint was filed before the Magistrate by the aggrieved person, no cognizance can be taken, as in the instant case the report was lodged before police, which treated it to be non-cognizable offence and obtained permission of the Munsif Magistrate for investigation, and as a result of that investigation the charge sheet was submitted. Reliance was placed on G. Narasimhan v. T. V. Chokkappa, AIR 1972 SC 2609 , and Tej Singh v. State, AIR 1965 All 508.

(3.) Sri P. S. Adhikari, learned counsel appearing for the State urged that the procedure adopted was correct, as the word 'complaint' under S. 198 does not necessarily refer to the word 'complaint' as defined under S. 2(d), inasmuch as S. 2 is captioned with the words 'in this Code unless the context otherwise required'. It means that in case in a particular context the meaning is intended to be otherwise than as the word 'complaint' defined under S. 2(d), in that event the other meaning, other than contained in the definitive clause, would be the correct meaning. Sri N. K. Rastogi, appearing for the complainant, on the other hand, submitted that as the definition clause was subject to the words 'unless the context otherwise requires', hence in the instant case the context was different, inasmuch as when a helpless wife is being harassed by the husband and other members of family, in that event ordinarily it cannot be expected that the legislature would have directed that the wife, the aggrieved person, must make an application to the Magistrate and follow the procedure prescribed before process is issued against her husband and others as contemplated under S. 204. It was further urged that apart from lodging a report to the police, opposite party 2, the wife, has filed a complaint before the Chief Judicial Magistrate, Jhansi, which was transferred to the Judicial Magistrate, Jhansi, who after taking statement of witnesses in view of Ss. 200 and 202, issued process under S. 204. Against that order Dt. 25-3-86 issuing process, a revision was filed before the Sessions Judge, Jhansi, and those proceedings in complaint case No. 19 of 1986 have been stayed when the present revision was filed before this Court and stay was granted. On the basis of the present criminal revision, further proceedings in the revision, arising out of the order issuing process in the complaint by opposite party 2 before the Magistrate, have been stayed. These facts have been stated in paras 3 and 4 of the Supplementary affidavit filed by Sri Ashok Kumar Jain, real brother of opposite party 2, the wife of the applicant 1.