Anil Kumar vs State of Kerala

B. Kemal Pasha, J.—Whether the term ''complaint'' used in S. 198(1) Cr.P.C., is meant in the ordinary sense of the term in its literal meaning only, or whether it is meant for the one defined in S. 2(d) Cr.P.C., is precisely, the question to be answered here. Petitioner, who is the accused in C.C. 405 of 2011 of the Judicial First Class Magistrate''s Court, Pala has come up with a prayer to quash the proceedings against him on the ground that the court below had taken cognizance of the offence illegally. Alleging an offence under S. 495 I.P.C. the defacto complainant, wife of the petitioner, had approached the Kuravilangad Police. Even without taking recourse to S. 155(2) Cr.P.C., the Sub Inspector of police, Kuravilangad registered Crime No. 28 of 2011 of Kuravilangad Police Station for the offence under S. 495 Cr.P.C. it seems that he had continued the investigation and laid the final report alleging an offence under S. 495 I.P.C. before the court below. The learned Magistrate has numbered the case as C.C. No. 405 of 2011 and has taken cognizance of the offence under S. 495 I.P.C.

As per S. 198(1) Cr.P.C., no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code, except upon a complaint made by some person aggrieved by the offence. The learned counsel for the second respondent who is the defacto complainant has attempted to persuade this court with an argument that such a provision is incorporated under S. 198(1) Cr.P.C., only for enabling such a person to set the law in motion and not for any other thing. According to him, no special significance need be attributed to the term ''complaint'' incorporated in S. 198(1) Cr.P.C. it is also argued that the term ''complaint'' in S. 198(1) Cr.P.C. need only be understood in its literal meaning, and not as the one defined in S. 2(d) Cr.P.C. Per contra, learned counsel for the petitioner has pointed out that the said provision creates a total bar to the taking of cognizance by any court for any of the offences coming under Chapter XX of the I.P.C. it is also argued that the term ''complaint'' in S. 198(1) Cr.P.C. is the very same ''complaint'' as defined in S. 2(d) Cr.P.C. S. 2(d) Cr.P.C., defines ''complaint'' as follows:-

complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

The procedure in Cr.P.C., in respect of the trial of cases is contemplated in respect of two categories of cases only, either ''cases instituted on police report'' or ''cases instituted otherwise than on police report''. The explanation to S. 2(d) Cr.P.C., shows that the report of a police officer after investigation of a non-cognizable offence shall be deemed to be a ''complaint'' within the meaning of S. 2(d) of the Act. Being a non-cognizable offence, the final report in respect of the investigation of the offence under S. 495 I.P.C. by the police officer can also be treated as a ''complaint''; but, such a complaint as per S. 198(1) Cr.P.C. should be preferred by some person aggrieved by the offence. The police officer, who laid the final report cannot be treated as a person aggrieved by the offence under S. 495 I.P.C. in this particular case.

According to the learned counsel for the second respondent, the term ''complaint'' in S. 198(1) Cr.P.C. can have only literal meaning of the term and not that of the ''complaint'' under S. 2(d) of Cr.P.C. The learned counsel places reliance on the decision rendered by the Allahabad High court in Mahendra Kumar Jain and Others Vs. State of U.P. and Another, , which is a case wherein the wife had lodged an F.I.R. with the police alleging an offence under S. 495 I.P.C. and on the basis of it, after obtaining the permission of the Magistrate, the investigation was done by the police officer and a charge sheet was laid. In the said case, it was held that the word ''complaint'' defined under S. 2(d) of the Code is not the one contemplated under S. 198(1) Cr.P.C., as the opening words in S. 2(d) shows the words "unless the context otherwise requires".

Even if the argument forwarded by the learned counsel for the 2nd respondent that the term ''complaint'' in S. 198(1) Cr.P.C., is meant for setting the law in motion by the aggrieved person is appreciated, this Court does not find any material to see that the term ''complaint'' noted in S. 198(1) Cr.P.C. is not the ''complaint'' defined under S. 2(d) Cr.P.C. On going through the provisions of law, there is nothing to hold that the term ''complaint'' used in S. 198(1) Cr.P.C. has been used in the ordinary sense of the term in its literal meaning only and not in legal parlance as defined in S. 2(d) Cr.P.C.

The learned counsel for the petitioner relies on the decision in Suraj Lal Jaiswal Vs. The State of Uttar Pradesh and Smt. Kamla Jaiswal, rendered by the Allahabad High Court wherein it was held:

Thus, it clearly lays down that complaint should be made by the aggrieved person to the Magistrate, who shall follow the procedure laid down in S. 200 Cr. P.C. onwards and it does not include a police report, i.e. report under S. 173(2) Cr. P.C. No doubt, in the Explanation to S. 2(d) a report by police officer, which discloses a non-cognizable offence, shall be deemed to be a complaint but this explanation is not applicable in cases under Chapter XX of the Indian Penal Code. Thus, there was no complaint in the present case and charge sheet itself is not maintainable".

The court below has committed a grave error in taking cognizance on the basis of the police report. In a case for an offence punishable under Chapter XX of the I.P.C. there is a clear bar under S. 198(1) Cr.P.C., in taking cognizance of the matter except on a complaint by some person aggrieved by the offence. In Ushaben Vs. Kishorbhai Chunilal Talpada and Others, , the Apex court has approved the taking of cognizance of an offence under S. 494 I.P.C. along with an offence under S. 498-A I.P.C. on a police report, as valid. On going though the decision noted supra it can be seen that the taking of cognizance in that case was held valid, only because of the fact that the offence under S. 498-A I.P.C. does not come under Chapter XX of I.P.C. On going through para 18 of the decision in Ushaben (supra) it is evident that in a case wherein the offences coming under Chapter XX I.P.C. alone are there, cognizance can be taken only upon a complaint made by some person aggrieved by the offence.

Matters being so, the taking of cognizance of the offence under S. 495 I.P.C. in this case by the court below is bad as it was barred under S. 198(1) Cr.P.C. Therefore, the proceedings against the petitioner in C.C. 405 of 2011 of the Judicial First Class Magistrate''s Court, Pala are liable to be quashed. This Court has taken serious note of the apprehension expressed by the learned counsel for the second respondent that if the complaint of the 2nd petitioner who is really aggrieved in the matter is thrown out, the second respondent would be nowhere. Of course, the 2nd respondent can prefer a complaint directly before the court below and proceed in the matter. It is made clear that this order will not stand in the way of the 2nd respondent to approach the court below with a valid complaint as contemplated under S. 198(1) Cr.P.C.

In the result, the proceedings against the petitioner in C.C. 405 of 2011 of the Judicial First Class Magistrate, Pala are quashed.