FATA Vs. GH AHMED DAR

JUDGEMENT

(1.) THE parties are husband and wife. They have a daughter. She is ten months old. It appears that they have fallen out and are living apart. The husband has sued the wife for restitution of conjugal rights in the court of Munsiff Sumbal. The suit is still pending. On 15 -5 -1978, the husband petitioned to the Munsiff that the wife had left the daughter with him. She is a suckling baby. Her mothers desertion had placed her in a helpless state. She might collapse. He prayed that the defendant No. 1 (that is, the mother) be asked to appear personally on or before .the date fixed for hearing in the suit so that proper arrangements may be made for the care and custody of the child. The Munsiff is also a Judicial Magistrate 1st Class. He recorded the statement of the applicant and his one witness and issued process for the attendance of the wife to answer the charge under section 317 R, P. C. By means of this application, the wife has prayed that the proceedings taken against her be quashed and, in the alternative, the case be transferred to some other court.

(2.) LEARNED counsel for the petitioner contended that the application presented before the Munsiff may have contained a statement of fact which properly interpreted was a statement that the petitioner had abandoned the child and thereby committed an offence under section 317 R. P. C. but in as much as the statement was not made with a view to action being taken under the Cr. P. C., the learned Magistrate was not competent to take cognizance of the offence. Consequently, the proceedings taken against the petitioner were illegal, ultra vires and without jurisdiction. He particularly relied on the decision in Bharat Kishore Lal Singh Vs. Judhister Modak (AIR 1929 Patna : 473).

(3.) IN Bharat Kishore Lals case (Supra), the learned Judges referred to the definition of complaint in section 4(h) Cr. P. C. and held that one of the essential ingredients of a complaint is that the allegation of a specific offence must be with a view to action being taken under the Code and, consequently, where a petition shows that the object of the petitioner is not that the particular offence should be punished but rather the mention of the particular offence is put in with a view to illustrate the kind of conduct which the accused person is supposed to be following and against which the petitioner is seeking protection, such a petition is not a complaint. I am in respectful agreement with the view expressed in this authority and hold that the petition in the present case could not be treated as a complaint entitling the Munsiff to take cognizance of the offence in his capacity as a Magistrate under section 190 Cr. P. C. But then the matter does not end here. The complaint may not be a valid complaint, nonetheless, a Magistrate can act on the information contained therein under clause (c) of Sec: 190 Cr. P. C. The only limitation on that power is that contained in section 195 Cr. P. C. The Magistrate cannot take cognizance under section 190(c) in respect of an offence falling under section 195. Th*e offence in the present case does not fall in that category. The action of the Magistrate in taking cognizance of the offence cannot therefore be said to be illegal or improper, The prayer for quashing the proceedings must fail.