BHARAT CHANDRA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code') petitioner questions legality of the order passed by the learned Sub -divisional Judicial Magistrate, Anandapur (in short, 'S.D.J.M.') rejecting petitioner's prayer to discharge him. Accusations relate to alleged commission of offences punishable under Sections 494 and 498A of the Indian Penal Code, 1860 (in short,' I.P.C). Petitioner's stand before the learned S.D.J.M. was two folds. Firstly, in the absence of a complaint as provided under Section 198 of the Code, there was no scope for taking cognizance. Secondly, the ingredients necessary to constitute offence punishable under Section 498A are absent, and in any event proper approach before the prescribed authority as stipulated under the Schedule to the Code having not been made the proceeding itself was nullity. The learned S.D.J.M. did not accept the contentions and directed continuance of the proceeding.

(2.) THE points urged before the learned S.D.J.M. were reiterated in this Court. I shall first deal with the question about legality of the proceeding so far as Section 494, I.P.C. is concerned. At this juncture it is necessary to refer to Section 198 of the Code. The said provision forms a part of Chapter XIV dealing with conditions requisite for initiation of proceedings. It relates to prosecution for offences against marriage. The provision so far as relevant for our purpose reads as follows : '198. (1) No Court shall take cognizance of an offence punishable under Chapter XX of the India Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence : Provided that (a) and (b)xxx xxx (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 on 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.' The prohibition is absolute so far as any offence punishable under Chapter XX of the I.P.C. is concerned. The said Chapter deals with offences relating to marriage and Section 494 is one of the sections covered by the said Chapter. Section 198 has been amended to provide that a complaint of an offence of bigamy covered by Section 494 may be filed also by any person related to the aggrieved woman by blood, marriage or adoption after obtaining leave of the Court having jurisdiction. This section like Sections 193 and 195 to 197 regulates the competence of the Court and bars its jurisdiction in certain cases excepting in compliance with it. It prohibits cognizance except upon complaint made by the person aggrieved. Section 190(1) provides for cognizance, and complaint referred to in Section 198 is a complaint made under Sub -section 190(1)(a). The section is in the nature of an exception to the general rule that any person can set the criminal' law into motion. However, it is limited only to offences indicated in Chapter XX of I.P.C, i.e., offences relating to marriage. The expression 'complaint' is defined in Section 2(d) of the Code. Therefore, the complaint with regard to Section 198 means a complaint as defined in Section 2(d) of the Code. The expression 'person aggrieved' occurring in Sub - section (1) of Section 198 does not contemplate any fanciful or sentimental grievance, it must be such a grievance as the law can appreciate; it must be legal grievance and not a stat pro ratione valuntas reason. The stand of the petitioner so far as the offence punishable under Section 494, I.P.C. is concerned is on terra firma.

(3.) AT this juncture, it is necessary to refer to Section 2(c) of the Code, dealing with cognizable offence. It reads as follows : ''cognizable offence' means an offence for which, and 'cognizable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;'