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Jogendra Malla vs Khira Dei And Ors. on 16 August, 1979

Orissa High Court
Jogendra Malla vs Khira Dei And Ors. on 16 August, 1979
Equivalent citations: 1980 CriLJ 634
Author: S Acharya
Bench: S Acharya


JUDGMENT

S. Acharya, J.

1. This is an appeal against an order of acquittal passed by the Judicial Magistrate, First Class, Cuttack.

2. The complainant’s case, in short, In that his son Paramananda Malla had married Khira Dei (respondent No. 1); then aged about 18 years, according to the Hindu rites on 13-6-67, and thereafter Khira Dei and Paramananda lived as husband and wife. During the subsistence of the said marriage Khira with the persuasion of her father (respondent No. 3) and mother (respondent No. 7) and the connivance of the other respondents married Bikal Khatua (respondent No. 8) for the second time on 11-7-75. All the respondents knew that the first husband of Khira was alive and their marriage was still in subsistence. Cognizance was taken on that complaint petition and the accused persons were tried and were acquitted by the court below on the finding that the alleged marriage of Khira with the complainant’s son Paramananda was not proved; and that the S.D.J.M. had no jurisdiction to take cognizance of the case or the complaint filed in this case.

3. It is contended by Mr. Sahoo, the learned Counsel for the appellant, that in view of Section 198 Cr. P. C. the court below had no jurisdiction to take cognizance of the offence punishable under Section 494 and Section 494/114 I.P.C. alleged against the accused persons on the complaint filed before it, and hence the trial of the case was vitiated and the order of acquittal passed in this case was without jurisdiction and is illegal.

4. The relevant portions of Section 198. Cr. P. C. are as follows:

198. Prosecution for offences against marriage-

(1) No Court shall take cognizance of an offence punishable under Chap. XX of the I.P.C. (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 it 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;

(2) to (6)-not relevant.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.

5. In this case admittedly the complaint petition was filed by the father of the alleged first husband of Khira Del Nothing special is stated in the complaint petition to show that the complainant was really an aggrieved person to file the complaint. It is evident from the records and is admitted by Mr. Sahoo that the leave required under Section 198, Cr. P. C. for the complainant to file the complaint had not been asked for in this case nor granted by the court. There is no proof of the fact that the complainant’s son, who, if at all, was the person aggrieved in this case, was under the age of 18 years or was an idiot or a lunatic or was from sickness or infirmity unable to make the complaint or that he was serving in the armed forces of the Union as would bring his case under Clause (a) or (b) of the Proviso to Section 198(1), Cr. P. C. In the complaint petition it was merely stated that the complainant’s son was ill at the time of filing the complaint petition, and so the complaint was filed by his father. Nothing was (produced to substantiate that statement, nor any move for the grant of the required leave on that account was made by the complainant. Merely because the court ‘took cognizance of the said offences alleged against the accused persons it cannot be presumed or implied that the court granted the required leave. The legislature in making special provision in Section 198, Cr. P. C. regarding filing of complaints and taking cognizance thereof in respect of offences in Chap. 20, I.P.C. has made a departure from the normal rule. To hold that as the court took cognizance of the said offences it can be implied or presumed that the leave required under Section 198, Cr. P. C. was granted by it would be to render the provisions of Section 198, Cr. P. C. nugatory and ineffective, and the salutary object of the requirement of the leave under Section 198, Cr. P. C. would be frustrated and would be liable to be misused by interested persons. In this connection the decisions and may be seen.

6. In the absence of anything on record to show that the leave was asked for by the complainant and granted by the court which took cognizance of the said offence, and in view of the mandatory provisions of Section 198, Cr. P. C. and the absence of anything to show that the complainant was really an aggrieved person in this case, the court could not have taken cognizance of the offences under Section 494, I.P.C. and abetment thereof alleged against the accused persons. Accordingly, the Magistrate had no locus stand! but to dismiss the complaint. The entire trial before the Magistrate was vitiated and hence the proceedings before him are quashed as without jurisdiction. The complaint is dismissed. The appeal is disposed of accordingly.

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