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Judgment
Rule. Rule returnable forthwith. With
the consent of the learned counsel for the
parties, the petition is taken up for final
hearing. Heard learned counsel for the respective
parties.
The petitioner has challenged the order,
dated 21.7.2015, passed by the Judicial
Magistrate, First Class, Court No. 11, Ahmednagar,
below Eh.24 in RTC No. 372 of 2014, by which
application filed by respondent nos. 1 and 2 under
the provisions of Section 239 of the Criminal
Procedure Code is partly allowed and they have
been discharged from the offences punishable under
Sections 420 and 497 of the Indian Penal Code, on
the ground that the petitioner had no locus standi
to file the complaint for the offence punishable
under Section 497 of the Indian Penal Code and
there was no prima facie material to frame the
charge for the offence punishable under Section
420 of the Indian Penal Code.
The aforesaid order was assailed by the
petitioner in Criminal Revision Application No.
199 of 2015. The learned Additional Sessions
Judge, Ahmednagar dismissed the Revision by its
order, dated 25.1.2017 and the findings recorded
by the learned Magistrate are confirmed. Hence
this Writ Petition.
Brief facts of the case are as follows :
Respondent nos. 1 and 2 herein had been
charged by Ahmednagar police vide Crime No. 536 of
2013. The Crime was registered on the basis of
complaint filed by the petitioner alleging therein
that on 23.5.2003 she married with respondent
no.1. After the marriage, respondent no.1 never
talked with the petitioner. She further alleged
that from the date of marriage, respondent nos. 1
and 2 started illtreatment and harassment to the
complainant. Respondent no.1 demanded amount of
Rs. Ten Lakh for purchase of new flat. On the
basis of the complaint lodged by the petitioner,
initially offences punishable under Sections 498A,
323, 504 of the Indian Penal Code came to be
registered.
The investigating officer recorded the
supplementary statement of the petitioner, in
which she made certain allegations of illicit
relations between respondent nos. 1 and 2 with
further allegation that respondent no.1 deceived
the complainant by certain facts. Therefore,
offence punishable under Sections 420, 497, 504 of
the Indian Penal Code came to be added.
Respondent nos. 1 and 2 have submitted
application under the provisions of Section 239 of
the Criminal Procedure Code for discharge. After
hearing both the sides, the accused persons have
been discharged from the offences punishable under
Section 420 and 497 of the Indian Penal Code.
Mr. Gaware, learned counsel appearing for
the petitioner submits that from the supplementary
statement of the complainant, it is crystal clear
that her husband respondent no.1 had illicit
relations with respondent no.2 who is cousin
mother-in-law of the informant. Therefore, from
the supplementary statement of the complainant, it
is crystal clear that offence punishable under
Section 497 of the Indian Penal Code prima facie
is established.
Mr. Gaware, learned counsel, at the
beginning of his arguments has conceded that there
is no case for the offence punishable under
Section 420 of the Indian Penal Code. During the
course of arguments, Mr. Gaware, learned counsel,
by referring to the provisions of Section 198 (2)
proviso has submitted that in absence of the
husband of respondent no.2, the complainant being
care taker of respondent no.2 is authorized to
file complaint for the offence punishable under
Section 497 of the Indian Penal Code.
Learned counsel appearing for respondent
nos. 1 and 2 has submitted that the petitioner has
no locus standi to file complaint for the offence
of punishable under Section 494 of the Indian
Penal Code. Therefore, the learned Magistrate is
barred from taking cognizance of alleged offence.
Looking to the rival submissions of both the
sides, a very short question is involved in the
present matter i.e. whether the complainant can
file complaint in view of the provisions of
Section 198 (2) proviso of the Criminal Procedure
Code . Section 198 of the Criminal Procedure Code
reads as follows : -
" 198. Prosecution for offences against marriage--(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that--
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under [56][ 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 [57][or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
(2) For the purposes or 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 Section 498 of the said Code;
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
............. ............... "
Mr. Gaware, learned counsel submitted that
in absence of husband of respondent no. 2, the
complainant being member of the family, can file
the complaint as the wording employed in proviso
to Section 198 (2) of the Criminal Procedure Code
is "some person".
Normally, complaint has to be filed by the
aggrieved person. In absence of such, the
Criminal Court cannot take cognizance. It is
impossible to lay down any flexible rule for
determining in every case whether the complainant
is a person aggrieved by the offence alleged, it
must be determined in each case according to its
own circumstances whether the complainant can be
said to be in a legal sense a person aggrieved.
On bare perusal of Section 198 (2) proviso
of the Criminal Procedure Code, in absence of
husband, some person, who had care of the woman on
his behalf at the time when such offence was
committed may, with the leave of the Court, make
complaint on his behalf. So, first requirement is
that the complainant has to establish prima facie
that she is caretaker of the woman i.e. respondent
no.2 on her husband''s behalf at the time when the
alleged offence was committed and secondly such
complaint was to be filed with the leave of the
Court.
In the present case, by no stretch of
imagination, the complainant can be said to be a
person who is caretaker of respondent no.2 on
behalf of her husband at the time of commission of
alleged offence, nor the complainant had taken
prior permission of the Court to file such
complaint.
In such circumstances, I do not think that
the complainant is authorized in law to lodge
complaint on behalf of the husband of respondent
no.2 or by herself in the capacity of care taker
of respondent no.2.
I have gone through the reasons recorded
by the learned trial Court as well as the learned
Additional Sessions Judge, Ahmednagar and I do not
find any illegality with the orders passed by the
learned Magistrate, which is confirmed by the
learned Additional Sessions Judge, Ahmednagar.
Consequently, there is no substance in the
present Writ Petition. Criminal Writ Petition is
liable to be dismissed and it is dismissed
accordingly. No costs.