Soni Bachubhai Jinabhai and Others vs State

Baxi, J.

(1) This judgment disposes of the above three appeals against the appellants'' conviction by the Sessions Judge, Gohilwad Division, u/s 498, Penal Code, and sentence of nine months'' rigorous imprisonment and a fine of Rs. 200/- each and in default three months'' rigorous imprisonment.

(2) The appellants were committed by the First Class Magistrate, Bhavnagar, on charges Under Sections 366 and 498, Penal Code, and tried by the Sessions Judge on that commitment and the point of law, upon which the appeals turn, is wheher the absence of a proper complaint from the husband u/s 199, Criminal P. C, does not vitiate the entire proceedings, including their trial before the Sessions Judge.

(3) The proceedings were started by Madhavsinh Jivansinh, who filed a complaint before the Magistrate against the three appellants and Bai Hira Kanji, charging the appellants u/s 366, Penal Code, and abetment thereof and charging Hira u/s 494, Penal Code, Hira''s husband Jethiji was at this time in Jail in Junagadh undergoing a sentence of imprisonment. u/s 199, Criminal P. C, the Court could not take cognizance of the offence u/s 494 Penal Code, except upon a complaint made by some person aggrieved by the offence, or, with leave of the Court, by some other person in his behalf, if such person is unable to make the complaint.

Madhavsinh, therefore, applied for leave of the Court to file the complaint stating in the complaint that as Jethibhai was in jail he was not in a position to attend the Court and leave should be granted to him (Madhavsinh) to file the complaint. He had applied for leave by a separate application also. The learned Magistrate refused leave to Madhavsinh on the ground that Jethibhai could make a complaint through Jail authorities and therefore leave could not be granted. He did not formally dismiss the complaint but his order should be taken to be tantamount to an order dismissing the complaint.

A revision application against this order was preferred to the Sessions Judge Mr. Unwalla, the predecessor of the present Sessions Judge, who set it aside and remanded the case for further inquiry. On receipt of the papers from Mr. Unwalla, the learned Magistrate referred the complaint to the police for inquiry u/s 202(1), Criminal P. C, and after receipt of the police report, he issued bailable warrants against the accused and after holding an inquiry under Chapter 18 of the Criminal P. C, discharged Hira u/s 209, Criminal P. C, and committed the present appellants to the Sessions Court on charges Under Sections 366 and 498, Penal Code.

An objection was raised during the trial on behalf of the appellants that the proceedings were vitiated for want of a proper complaint u/s 198, Criminal P. C, but this objection was overruled by him. He acquitted the appellants of the offence u/s 366, Penal Code, but convicted them u/s 498, Penal Code, and sentenced them as above. The appellants have preferred these appeals against their conviction and sentence.

(4) The learned Sessions Judge held that as leave was granted by his predecessor to the complainant Madhavsinh to file the complaint, and as all facts constituting the offence had been stated therein, the appellants could be legally convicted u/s 498, Penal Code, though the offences Under Sections 366 and 494, in respect of which the complaint was originally filed, were not made out. He further held that the police had recorded the statement of Hira''s husband Jethibhai during the inquiry u/s 202, Criminal P. C, and in this statement had set out all the facts constituting the offence and had expressed his desire that the appellants should be dealt with according to law.

This statement was forwarded to the First Class Magistrate before process was issued by him and, in the opinion of the learned Judge, Jethi-bhai''s statement to the police could be regarded as a complaint u/s 198, Criminal P. C, upon which cognizance could be taken by the Magistrate. Lastly Jethibhai was examined during the trial and in his deposition he had stated that the accused should be punished for taking his wife with the intention of seducing her to illicit intercourse and the Sessions Judge thought that his deposition could be regarded as a complaint within meaning of Section 198. Criminal P. C. He therefore overruled the objection that the proceedings were vitiated for want of a proper complaint.

(5) The proceedings were initiated before the Magistrate by a complaint by Madhavsinhji. As already stated above, the learned Magistrate refused him leave to file the complaint and his order amounted to a dismissal of the complaint. Therefore the only question is whether the learned Sessions Judge had jurisdiction to set aside this order in revision. If the Magistrate''s order can be regarded as a dismissal u/s 203, Criminal P, 0., the Sessions Judge had jurisdiction to set it aside and order further inquiry u/s 436 Criminal P. C, and the proceedings subsequent to the order of remand cannot be impugned as without jurisdiction.

On the other hand, if the dismissal of the complaint by the Magistrate cannot be regarded as a dismissal u/s 203 Criminal P. C, it is evident that the Sessions Judge had no jurisdiction to set aside the Magistrate''s order of dismissal of the complaint and order further inquiry. A similar question arose for decision before the Peshawar High Court in - ''Tarlok Nath v. Emperor'' AIR 1947 Pesh 58 (A). That case related to the dismissal of three complaints against the petitioner u/s 161, Penal Code. The complaints were dismissed by the trial Court on the ground of want of sanction of the Governor General u/s 270, Government of India Act, 1935.

On revision the District Magistrate reversed the order of the trial Court and directed further inquiry u/s 436, Criminal P. C. It was held that the orders dismissing the complaint for want of sanction could not be regarded as falling u/s 203, Criminal P. C. and it was not open to the District Magistrate to order further inquiry u/s 436, Criminal P. C. He could only act u/s 433, Criminal P. C. and make a report to the High Court but he had no power to pass final orders. The ground of the decision was that the dismissal of a complaint u/s 203, Criminal P. C, which alone gave jurisdiction to the Sessions Judge to order a further inquiry, implied that the Court had jurisdiction to take cognizance of the complaint and after taking cognizance had dismissed it on merits.

The dismissal of a complaint u/s 203, Criminal P. C, was thus held to be essentially a dismissal on merits and could be ordered only where the Court had jurisdiction to hear it, but an order dismissing the complaint for want of sanction could not be considered as falling under 8. 203, Criminal P. C, and could not be set aside by the District Magistrate in revision. With respect we agree with this decision.

(6) In the present case the complaint was made Under Sections 366 and 494, Penal Code. The appellants have been acquitted u/s 366 but as regards the complaint u/s 494 the Magistrate had no jurisdiction to take cognizance of the offence in the absence of a proper complaint u/s 199, Criminal P. C. The refusal by him to grant leave amounted to a dismissal of the Complaint.

That dismissal was not on merits but under his inherent powers and the learned Sessions Judge''s order In revision setting aside that order and directing further inquiry was without jurisdiction and all proceedings before the Magistrate subsequent to the Sessions Judge''s order in revision were without jurisdiction. There was therefore no commitment in law to the learned Sessions Judge, upon which he could try the appellants, and consequently their trial was without jurisdiction and the appellants'' conviction on such trial cannot be sustained.

(7) The learned Sessions Judge held that there was a proper complaint before the Court because Jethibhai had made a statement to the police in the inquiry u/s 202, which could be regarded as a complaint. He also held that Jethibhai''s deposition during the trial amounted to a complaint u/s 198, Criminal P. C. It is unnecessary to express any opinion on the correctness of these findings because all these proceedings were without jurisdiction as they were subsequent to the learned Sessions Judge''s order of remand and cannot be looked into. In the result the appeal must be allowed and the appellants'' conviction and sentence are quashed and they are ordered to be set at liberty.

Chhatpar, J.

(8) I agree.