Bangaru Asari vs Emperor

In this case the accused was charged with an offence u/s 366 of the Indian Penal Code. The Sessions Judge held that the prosecution had failed

to prove either kidnapping or abduction but on the evidence he convicted the accused of an offence u/s 498. In so doing ho purported to act u/s

238 of the Code of Criminal Procedure. Sub-section (3) of this section, provides that nothing in the section shall be deemed to authorize a

conviction of any offence referred to in Section 199 when no complaint has been made as required by that section. Section 199 says no Court

shall take cognizance of an offence u/s 498 of the Indian Penal Code except upon a complaint made by the husband of the woman. We think this

means a complaint made by the husband of an offence u/s 498, not any complaint made by the husband.

This is the view adopted by the Allahabad High Court in Empress v. Kallu ILR 5 All. 233. The Calcutta High Court has taken a different view-

see Jatra Shekh v. Reazat Shekh ILR 20 Cal. 483. We agree with the reasoning, and with the conclusion of the Allahabad High Court. The

conviction is bad and must be set aside on the ground that, there being no complaint by the husband of an offence u/s 498, the Court had no

jurisdiction to convict.

The prisoner must be set at liberty.