YUNUSH ALI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The revisional application under sections 397, 401 and 482 of the Code of Criminal Procedure is at the instance of an accused and is directed against an order dated 14.6.99 passed by Sri A. Mukherjee, Sessions Judge, Malda by which the Ld. Sessions Judge affirmed the order dated 29.7.97 passed by A. Dev., Judicial Magistrate, 1st Court, Malda.

(2.) On 27.12.94 Chanchal Police Station of the District of Malda received a written complaint from one Moslema Khatun alias Bidu Khatun, daughter of Mainuddin to the effect that her next door neighbour namely Younush Ali (present petitioner) fell in love with Moslema Khatun and on this issue Younush was driven out by his father. Younush allured Moslema that he would marry Moslema and Moslema was given to understand that Younush would marry her and this way Younush had sexual intercourse with Moslema and, as a result, Moslema became pregnant. Subsequently, Younush refused to marry her. On 26.12.94 Moslema gave birth to a male child. On receipt of the complaint it was recorded in Chanchal P.S. as a G.D. entry No.895 dated 27.12.99. A prayer was made before the S.D.J.M., Malda for permission to investigate the matter as it was a non - cognizable offence. The Court granted the permission on 14.2.95 and thereafter, the Sub-Inspector of Chanchal P.S. enquired into the matter and during enquiry, he examined the victim Moslema, her father and some witnesses. Thereafter the S.I of Police submitted a prosecution report under section 493, I.P.C.

(3.) Now, in this revisional application, the accused that is the petitioner has challenged the maintainability of the prosecution report. The Ld. Advocate appearing for the accused petitioner has submitted before me that under section 198 the taking of cognizance by the Magistrate over the prosecution report was bad in law. Be it noted here that the prosecution report was submitted under section 493 of the Indian Penal Code. Now section 198(1) of the Criminal Procedure Code runs as "no Court shall take cognizance of an offence punishable under Chapter 20 of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence". The Ld. Advocate appearing for the petitioner submits that in this case the complaint that is the prosecution report upon which the Court took cognizance was not filed by the person aggrieved by the offence rather complainant was a Sub-Inspector of police. According to the Ld. Advocate the complaint should have been filed by the victim girl. Now, in this case, I find that the victim lodged a complaint with Chanchal P.S. under section 155 of the Code of Criminal Procedure as it was non-cognizable offence. There is no dispute that the victim is a rustic woman belonging to the Muslim Community and the LD. Advocate appearing for the State of West Bengal submits that the victim is a 'pardanasin' in view of the customs of the Muslim Community and, therefore, it was not possible for her to approach the Court directly with a petition of complaint. So, the Ld. Advocate for the State has drawn my attention to proviso (a) of section 198(1), Cr.P.C.