JAGDISH RAM Vs. PYAR KESHWAR RAM

JUDGEMENT

(1.) This appeal has been presented under Section 378 (4) of the Code of Criminal Procedure (hereinafter referred to as the 'Code') after obtaining leave of the court. The appellant Jagdish Ram was the complainant in the court below. He filed a complaint for taking action against the members of the opposite party under Section 498 of the Indian Penal Code (hereinafter referred to as 'Penal Code'). The Learned C.J.M. before whom the petition of complaint was filed, took cognizance of the offence and transferred the case to another Judicial Magistrate for disposal. The learned Magistrate in the trial on taking evidence, convicted the members of opposite parties of the charge under Section 498 of the Penal Code and sentenced each one of them to suffer rigorous imprisonment for six months. All the accused opposite parties being aggrieved of the judgment of the learned Judicial Magistrate, preferred an appeal. The appeal was admitted and it came up for hearing before an Additional Sessions Judge. The Learned Additional Sessions Judge on hearing the parties, took the view that the filing of the complaint was barred under Section 198 of the Code. It was held that the court of the learned C. J. M. was not competent to take cognizance of the offence punishable under Section 498 of the Penal Code. The complaint was not filed by the husband of the women and the present complainant did not take the leave of the court in presenting the complaint, and in that view the very undertaking cognizance of the offence was bad in law and the whole trial therefore, stood vitiated. The Learned Additional Session Judge, therefore, allowed the appeal, set aside the order of conviction. It is now against the judgment of acquittal that the present appeal has been preferred against the judgment of the appellate court, the present appeal has been preferred.

(2.) Sri Hariji Upadhayay, Counsel for the appellant has submitted that the Learned Additional Sessions Judge, has mis -convicted the issue and in fact has mis -read the law. It has been contended that once a petition of complaint is filed and the court proceeds to cognizance of the offence alleged under Section 498 of the Penal Code, for all practical purposes it will be deemed to be that the leave of the court was obtained. It has been argued that even if the permission is not sought for but once the cognizance is taken, it will be deemed to be an implied permission for filing the complaint. The law does not envisage or speak of granting permission in express terms permission. To amplify his argument further, the learned advocate referred to Clause -3 of Section 198 of the Code and submitted that in such a case, in filing complaint when a person is under age of 18 years or is an idiot, or a lunatic or is sick or infirm or unable to make a complaint or is a women who according to local custom ought not be compelled to appear in person, some other person with the leave of the court may make a complaint on his or her behalf and in that contingency as per Clause -3, an application is to be made and the court before whom such petition is filed, after issuing notice and hearing the guardian may grant leave for filing the complaint. It has been urged that no such clog has been put in filing a complaint by a husband or by some person, who has the care of the woman, in filing the complaint on behalf of her husband. In other words, the expressed submission of the Learned Advocate is that, law does not require obtaining any such leave of the court and for all purposes, once complaint is filed and cognizance is taken thereon, it will be deemed to be that leave of the court has been granted,

(3.) I have heard the Counsel for the Respondents and have given full consideration of the point raised. I am constrained to observe that the argument is totally mis -concieved. Sub. Clause -3 of Section 198 talks of a person who is under 18 years of age or is an idiot or lunatic and so in a case of complaint filed by the guardian of such person, the court is to be satisfied that there is a guardian appointed and declared by a court and in that case, such person shall obtain leave of the court in filing the complaint. The present case before us, stands otherwise. In this case, we find that the complaint has been filed by the father -in -law and not by the husband of the woman. Section 198 of the Code speaks, that no court shall take cognizance of an offence punishable under Chapter -20 of the Code except upon a complaint made by some persons aggrieved by the offence and proviso to that under Clause -2 further lays down that for the purpose of Sub -Section -1 no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or 498 of the Code. There is a further proviso attached in Clause -2 of Section 198 of the Code and that lays down that in case of the absence of the husband, some other person who had the care of the women on his behalf, at the time when such offence was committed, may with the leave of the court make a complaint on his behalf. My attention has been drawn to the petition of complaint. The complainant -appellant does not state either in the petition of complaint or even in his statement made in court that during the relevant time, that woman was under his care and control or that he had care of the woman, on behalf of her husband or that he was making complaint, on his behalf. Apart from it, there is no prayer in the petition of complaint for grant of such leave or permission for filing a complaint. No petition has been filed even separately seeking leave of the court for filing of the complaint, so much so that even in the petition of complaint there is no mention of the fact that he is the person aggrieved by the offence committed under Section 198 of the Code and these factors operate as a bar and it is quite explicit that no court shall take cognizance of an offence punishable under Chapter -20 (Section 498 comes under that Chapter) except a complaint made by a person aggrieved. In consideration of the facts discussed above, it may again be reiterated that there is no whisper of the fact that this complainant -appellant was the person aggrieved and that he, at no time, made any attempt to obtain the leave of the court in filing the complaint. Clause -3 of Section 198 stands quite differently than Clause -2 of Section 191 and the two cannot be read together for the purpose to hold that leave of court will be deemed to have been granted impliedly. I must state that leave of the court must be obtained in express and clear terms and only on leave being granted, such a complaint can be admitted, if so filed and not otherwise. I find that the Learned Additional Sessions Judge has taken correct approach to the problem and has rightly held that the present case of the appellant is hit by Section 198 of the Code. To my mind also the provision of Section 198 of the code is manadatory and any departure from it vitiates the proceedings.