Uthirapathy vs Malliga

N. Arumugham, J.—Heard. The first accused by name, Uthirapathy being unsuccessful before the learned Judicial First Class Magistrate,

Karaikal in Crl. M.P. No. 763 of 1994 in C.C. No. 150 of 1993 dated 3.11.1994, in his attempt to get him discharged, has come forward with

this revision, challenging the proprietary and legality of the said impugned order.

The petition herein, by name, Uthirapathy is the father of complainant/respondent, by name, Malliga, and also is his daughter through his first

wife, by name, Dhanalakshmi. It is alleged that during the subsistence of marriage with the said Dhanalakshmi, the Petitioner herein, has contracted

a second marriage with one Parvathy and as such, he has committed an offence u/s 494 Indian Penal Code and a complaint was lodged by the

Respondent herein u/s 200 of the Code of Criminal Procedure before the Court below. She had to file the complaint as her mother was said to

have been not alright and she was physically ailing and so, she had filed the complaint on behalf of her mother on 26.5.1993. After having satisfied

with the existence of the grounds, by taking the sworn statement of the complainant, the complaint was taken on file by the learned Magistrate and

processes were issued. The Petitioner along with the so-called second wife entered appearance on 17.11.1993 and the copies of the documents

were served upon them. The case was numbered as C.C. 150 of 1993. Before the commencement of the trial, a petition u/s 245 of the Code

Criminal Procedure was filed praying for the discharge of the accused on the ground that the Respondent has no legal competency to file the

complaint against the Petitioners for the offence u/s 494 of Indian Penal Code, besides the question of jurisdiction, and it was resisted by and on

behalf of the Respondent. After hearing both the parties, learned Judicial Magistrate elaborately discussed the matter, but, however, declined to

accept the contentions raised on behalf of the Petitioner. He consequently dismissed the petition filed for discharge by passing the impugned order.

Aggrieved at this, the accused before the trial Court, has come forward with this revision challenging the impugned order above referred to.

On ordering notice of motion, the Bar entered appearance on behalf of the Respondent and accordingly, I heard Mr. Natarajan, learned

Counsel for the revision Petitioner and Mr. Natanarajan, learned Counsel for and on behalf of the Respondent, against and for the impugned order.

The only contention which the Bar for the revision Petitioner has dealt with before me is on the basis of Section 198 of the Code of Criminal

Procedure by stating that without getting a prior permission or sanction of the Court, the daughter of the accused, for the alleged offence, is not

competent to file a private complaint or initiate any legal proceedings in a Court of law as Section 198 of the Code provides a total bar for that. In

other respects, the Bar for the revision Petitioner may not have any serious grievance. Admittedly, the relationship between the first Petitioner

before the trial Court and the Respondent is not disputed and the wife of the first accused, by name, Dhanalakshmi is still alive and she has not

lodged, nor filed any complaint before any police or Court and it is her daughter, the Respondent herein who has moved the trial Court by filing a

private complaint u/s 200 of the Code of Criminal Procedure, and given her sworn statement with a view to satisfy the learned trial Magistrate with

the existence of the prima facie case, followed by the issuance of processes and appearance of the accused before the trial Court. It seems that the

accused have received the copies of all the documents relied on by the complainant and that the case was posted for the commencement of trial. It

was, at this state, an attempt to seek the total discharge was made by filing a petition u/s 245 of the Code of Criminal Procedure.

To appreciate the legal point raised by Mr. Natarajan, Learned Counsel for revision Petitioner, I feel it relevant to quote Section 198 of the

Code of Criminal Procedure, which runs as follows:

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 persons 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 (S. 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 or

with the Leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence

punishable u/s 497 or Section 498 of the said Code. Provided that, in the absences 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.

Generally, the criminal law in our country does not seem to restrict the locus standi of any person to set the law in motion with regard to the

offences, but, however, the above Section 198 imposes a limitation on the cognizance of the offences, confining to the offences under Chapter XX

of the Indian Penal Code, with certain exceptions. It is also mandatory to provide an exception to the general rule that a complaint can be filed by

anybody, whether he is an aggrieved person or not and modify the rule permitting the aggrieved person only to move before the Magistrate in

cases of offences punishable under Chapter-XX of the Indian Penal Code. While doing so, the above S.identifies who are such persons acquiring

the competency to lodge the complaint or initiate proceedings in a Court of law for the offences referred to above. If the persons defined in Sub-

clause (c) of Section 198 of the Code of Criminal procedure are looked into, in the context of the facts of the instant case, it is noticed that the

aggrieved person in this case is the first wife of the first accused, Viz., Dhanalakshmi who is said to have been not doing well. For the said

reasoning, the complaint was lodged by the Respondent herein, who is none other than the daughter of the first accused through his first wife,

Dhanalakshmi. A daughter can have direct sanctity under the first limb with regard to the competency by virtue of Sub-clause (c) to Section 198 of

the Code of Criminal Procedure. The word ''or'' acts towards such persons other than those referred to in the first limb to the effect that they have

the competency only in the absence of such persons mentioned in the first limb, but with the Leave of the Court. If this being the position of the

law, then I can have no difficulty to identify the legal competency of the Respondent herein to initiate proceedings for the alleged offence u/s 494 of

the Indian Penal Code against the first accused for and on behalf of her mother.

Since the Bar for the Petitioner has not canvassed the impugned order on any other ground which perhaps become unnecessary to this revision,

accepting the contentions raised by Mr. Natanarajan, Learned Counsel appearing for the Respondent, I am constrained to hold that this revision

lacks every merit and I do not come across with any point of law or legality or propriety which arises in this revision for further probing. Since the

matter is pending for a long considerable time, it is justifiable for me to direct the learned Judicial Magistrate to commence the trial of the case and

dispose of the same in accordance with the law, as expeditiously as possible.

In the result, for all the reasonings given above, the revision fails and accordingly, it is dismissed. Consequently, the impugned order passed by

the learned Judicial Magistrate Cr. M.P. 763 of 1994 in C.C. No. 150 of 1993 dated 3.11.1994 is hereby maintained, with the directions given

above