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Emperor Vs. Imankhan Rasulkhan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case Number Criminal Appeal No. 432 of 1911
Judge
Reported in(1912)14BOMLR141
AppellantEmperor
Respondentimankhan Rasulkhan
Excerpt:
.....the accused on charges under sections 366 and 379; but differing from them, he convicted the accused of the offence under section 498. the accused appealed on the ground that the conviction under section 498 was bad, as the complaint was not initiated by the husband of the woman:-;that the husband not having complained of the offence under section 498, the conviction could not be sustained; and that the statements made by the husband in his deposition could not be said to be complaint within the meaning of section 4, clause (a) of the criminal procedure code, 1898. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is..........to the magistrate charging the accused with offences under sections 366 and 379, indian penal code. the magistrate commenced his inquiry on these charges. there was no charge formulated against the accused under section 498 at the beginning of the inquiry. the first witness examined was the complainant. it may be that certain statements made in the deposition amounted to an offence under section 498, but that was the statement .of the complainant made as a witness. it could not be said to be a complaint within the meaning of clause (h/) of section 4 of the criminal procedure code. the intention of the legislature plainly is (that in a case of adultery committed with a married woman, it is the husband who is the aggrieved person, and he must take the initial steps by means of a.....
Judgment:

1. We must reverse the convictions and sentences in both these cases on the preliminary ground raised before us by Mr. Shah in support of the appeal that the Court below could not take cognizance of the offence under Section 498, Indian Penal Code, because there was no complaint as required by the provisions of Section 199 of the Code of Criminal Procedure. What happened was that the original complaint was made to the Police. The Police sent up the complaint to the Magistrate charging the accused with offences under Sections 366 and 379, Indian Penal Code. The Magistrate commenced his inquiry on these charges. There was no charge formulated against the accused under Section 498 at the beginning of the inquiry. The first witness examined was the complainant. It may be that certain statements made in the deposition amounted to an offence under Section 498, but that was the statement .of the complainant made as a witness. It could not be said to be a complaint within the meaning of Clause (h/) of Section 4 of the Criminal Procedure Code. The intention of the Legislature plainly is (that in a case of adultery committed with a married woman, it is the husband who is the aggrieved person, and he must take the initial steps by means of a complaint made to a Magistrate before the latter can take cognizance of the offence under Section 498/ Here the complainant had made no complaint to the Magistrate as required by law. On this preliminary ground, therefore, the conviction and sentence must be set aside, and the accused acquitted and their bail-bonds cancelled.


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