SHANKER SAHU Vs. STATE OF U P

JUDGEMENT

(1.) G. P. Mathur, J. This petition under Section 482 Cr. P. C. has been filed for quashing the order dated 21-5-84 passed by the learned Magistrate and the order dated 31-8-85 passed by the learned Ses sions Judge.

(2.) SHYAM Narain Gupta Opp. party No. 2 filed a criminal complaint against the applicant Shankar Sahu alleging that his sister's daughter Lal Mani was married to the accused applicant 11 years back. The applicant turned out Lal Mani from his house and kept her jewellery and clothes etc. Thereafter the applicant married Sheo Kumari Devi accused No. 5 on 30-6-82 though Smt. Lal Mani was still alive and her marriage with the applicant was also subsisting. It was thus alleged that the applicant had committed an offence under Section 494 I. P. C. After recording the statement of the complainant and of some witnesses under Sections 200 and 202 Cr. P. C. , the accused applicant was summoned to face trial. Thereafter the complainant led evidence under Section 244 Cr. P. C. and examined two witnesses, namely Shayam Narain Gupta, P. W. 1 and Pattar, P. W. 2. At the stage of framing charge, a preliminary objection was raised on behalf of the accused applicant on the ground that complaint on which the accused was being tried was a second complaint and that the complaint filed by Shayam Narain Gupta, who was maternal uncle of Lal Mani, was not maintainable as no leave of the Court had been obtained. The objection was dismissed by the learned Magistrate by the impugned order 21-5-83 and the revision preferred against the said order was dismissed by the learned Sessions Judge on 31-8-85.

(3.) LEARNED counsel for the applicant has submitted that even in a case where the complaint is made by father on behalf of his daughter leave of Court is necessary and in support of his submission he has placed reliance on Janardan Chaitu v. Guna Balkrishna, AIR 1962 Bom. 33, where it has been held that leave cannot be presumed or implied to have been granted and there should be a specific order grant ing leave. This case was decided in 1962 and the language used in clause (C) of sub section (1) of Section 198 Cr. PC. has undergone amendment in 1973 Code. In the present Code, the language, is very clear and where the complaint is filed by mother's brother no leave of the Court is required.