Ramji Ram vs The State of Bihar

Nagendra Rai, J.—The sole Petitioner has been convicted u/s 498 I.P.C. and sentenced to undergo R.I. for one year by the Sub-Divisional Judicial Magistrate, Arrah, by judgment and order dated 13.6.88. The said conviction and sentence has been upheld by the appellate court by judgment and order dated 13.2.89.

The prosecution case, in brief, is that the informant Harihar Ram, P.W. 4, was married with Devanti Devi. Both were residing with four children in the campus of Maharaja College, Ara, where the informant was employed as a peon. He came to know from Amarnath Mahto that on 13.3.85 at 12.00 noon during his absence the Petitioner enticed away his wife with ornaments and cash. He also forcibly took away one of the sons of the informant. The informant, later on, came to know that his wife was living with the Petitioner at Durgapur.

Thereafter he lodged a written report before the Officer-in-charge, Ara-Nawada P.C., Ext. 1, on the basis of which a formal F.I.R. Under Sections 366 and 376 I.P.C. was drawn and the police submitted a final report. The learned Magistrate differred with the opinion of the police and by order dated 28.6.86 took cognizance u/s 498 I.P.C. and transferred the case for trial.

Before the trial court, the prosecution examined five witnesses, out of whom P.W. 5 Bhuneshwar Singh is a formal witness who has proved the F.I.R. P.W. 3 Rakesh Kumar, son of the informant, has been tendered. P.W. 1 Ram Sakhi Devi, mother-in-law of the informant (mother of Dewanti Devi), Rajesh Kumar, son of the informant, P.W. 2 and P.W. 4, the informant, supported the prosecution case and both the courts have accepted their evidence and have convicted the Petitioner u/s 498 I.P.C. as stated above, hence the present revision application.

The learned Counsel for the Petitioner submitted that the order of conviction and sentence is vitiated in law for the reason that in this case the requirement of Section 198 Code of Criminal Procedure has not been followed inasmuch as cognizance has been taken on the basis of a police report and not on the basis of the complaint made by the aggrieved person-husband before the Magistrate.

The Offence u/s 498 I.P.C. falls under Chapter XX of the Penal Code and Section 198 contains a provision regarding prosecution for offence against marriage. Sub-section (1) of Section 198 Code of Criminal Procedure provides that no court shall take cognizance of offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. Sub-section (2) of Section 198 Code of Criminal Procedure provides that no persons other than the husband of the woman shall be deemed to be aggrieved by any offence punishable u/s 497 or 498 of the Penal Code. However, in proviso to Sub-section (2) it is stated that in absence of the husband some person who had care of the woman on his behalf at the time when such offence was committed may make a complaint on behalf of the husband with the leave of the court. Thus, it is clear that the cognizance can be taken of the offence u/s 498 I.P.C. only upon a complaint made by the husband or by any person as mentioned in proviso to Sub-section (2) to Section 198 Code of Criminal Procedure.

The question for determination is whether the word complaint occurring in Section 198 Code of Criminal Procedure has to be given an ordinary meaning or it should be treated as complaint as defined u/s 2(d) Code of Criminal Procedure. If the word ''complaint'' is given an ordinary meaning in the sense that complaint means an expression of grief or injury by the husband before the police or the Magistrate, In that case even filing of F.I.R. by the husband would be sufficient compliance of Section 198 Code of Criminal Procedure. However, if the word ''complaint'' used in Section 198 Code of Criminal Procedure refers to the complaint as defined u/s 2(d) Code of Criminal Procedure in that situation, the case can only proceed on the basis of the complaint filed by the aggrieved person before the Magistrate and in no other manner.

Section 498 of the Penal Code has been enacted to protect the right of the husband. The gist of the offence u/s 498 I.P.C. is the deprivation of the husband of the custody and control of his wife. The offence u/s 498 I.P.C. is not cognizable meaning thereby that the police cannot arrest any person without a warrant from a Magistrate. The State is the custodian of the law and order and the general rule is that any person can put the criminal law in motion. Section 198 Code of Criminal Procedure creates an exception to the general rule. It bars the jurisdiction of the Magistrate or a court to take cognizance in the cases falling under Chapter XX of the Penal Code except in the manner provided under the said section. It requires a complaint by the person aggrieved. To me it appears that the word ''complaint'' u/s 198 of the Code means the complaint as defined u/s 2(d) of the Code which means an allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person has committed an offence but does not include a police report.

In the case of Tara Prasad Laha v. Emperor reported in ILR 30 Cal 910, the Full Bench of the Calcutta High Court held that word complaint as used in Section 198 is limited to the complaint as defined in Section 4(h) of 1898 Code which corresponds to 2(d) of the present Code and accordingly set aside the conviction on the ground that the case proceeded on the basis of information given to the police which cannot be regarded as a complaint as defined under the Code. The same view has been taken by the Punjab Chief Court in the case of Bhana v. Emperor 1911 CriL.J. 50, by Madras High Court in the case of In Re: Arumuga Mudaliar and Another, , and by the Division Bench of Allahabad High Court in the case of Tej Singh Vs. State, . I find myself in agreement with the view taken in the aforesaid cases and hold that complaint occurring in Section 198 Code of Criminal Procedure means complaint as defined in Section 2(d) of the Code meaning thereby that the Magistrate can take cognizance of the offence u/s 498 I.P.C. only on the basis of a complaint lodged before the Magistrate by aggrieved person and an information to the police by the aggrieved person for the offence u/s 498 I.P.C. is not a complaint as mentioned in Section 198 Code of Criminal Procedure.

In the present case, admittedly no complaint was filed before the Magistrate. The matter was reported to the police and the learned Chief Judicial Magistrate after differing with the report of the police took cognizance. Thus, the mandatory requirement of Section 198 Code of Criminal Procedure regarding filing of the complaint by the aggrieved has not been complied with in this case. Accordingly, the conviction and sentence passed against the Petitioner is vitiated in law.

In the result, this application is allowed and the conviction and sentence of the Petitioner is set aside. The Petitioner is discharged from the bail bonds.