B.K. Patra, J.
1. This application in revision is directed against an order of a First Class Magistrate of Cuttack convicting the petitioner under Section 500 I. P. C. and sentencing him to pay a fine of Re. 1 and in default to undergo S. I. till the rising of the Court. While admitting this application a Rule was also issued calling upon the petitioner to show cause why the sentence should not be enhanced.
2. The petitioner is the Secretary of the Urdu Girls' M. E. School at Oriva Bazar at Cuttack town. P. W. 5 Abcda Begum was working as an Assistant Teacher in that School. On 29-9-64 the petitioner in his capacity as the Secretary of the School issued an order (Ex. 4) to P. W. 5 calling upon her to explain (a) why she was talking to a young man inside the school premises on 25-9-64; (b) why she was divulging the school secrels to the Sub-Inspector of Schools. On 19-9-64 another order (Ex. 3) had also been issued to P. W. 5 alleging that she was found copying out a certain letter received from the Sub-Inspector of Schools and was thus guilty of official misconduct.
3. On 18-12-64, a complaint petition was filed in the court of the S. D. M., Cutlack by one Saycd Iqubal Mi (P. W. 4) brother-in-law of P. W. 5, Abeda Begum against the petitioner and Sm. Zaibunnisa, the Head-mistress of the School under Sections 500, 504 and 120 I. P. C. alleging inter alia that they defamed Abeda Begum. Admittedly Sayed Iqubal AH did not pray for the leave of the Court to file such complaint petition on behalf of Abeda Begum and no such leave was ever granted as required under the proviso to Section 198 Cr. P. C. This infirmity was however, not noticed by the learned Magistrate, but in due course he framed a charge only under Section 500 I. P. C. against the petitioner and Sm. Zaibunnisa, examined witnesses and found ultimately that no case had been made out against Zaibunnisa and acquitted her.
Regarding the petitioner he found that the allegation that P. W. 5 Abeda Begum copied out a letter received from the Sub Inspector of Schools was true and that as such the warning given in Ex. 3 was justified. He, however, held that the accusation made by the petitioner in Ex. 4 was not true and that the imputation made therein was not justified. He therefore convicted him Under Section 500 I. P. C. and sentenced him as stated above.
4. At the commencement of hearing of this application it was contended by the learned advocate appearing for the petitioner that as admittedly the complaint petition in this case had not been filed by the aggrieved lady Abeda Begum and that Sayed Iqubal All who actually filed the petition had not taken leave of Court as required under the proviso to Section 198 Cr. P. C., the learned Magistrate had no jurisdiction to take cognizance of the offence and the entire proceeding before the Magistrate was therefore vitiated. Section 198 Cr. P. C., runs thus:
'No court shall take cognizance of an offence falling under Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 of the same Code except upon a complaint made by some person aggrieved by such offence. Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his or her behalf.
As Section 500 occurs in Chapter XXI of the Indian Penal Code, no Court can take cognizance of such an offence unless a complaint is made by the person aggrieved. If, however, the person aggrieved is a woman who according to customs and manners of the country, ought not to be compelled to appear in public, some other person may, after obtaining leave of the Court make a complaint on her behalf. Assuming that Abeda Begum is a pardanashin lady and as such docs not appear in public, her brother-in-law Sayed Iqubal Ali after applying for and obtaining leave of the Court, may file the complaint on her behalf in Court.
The salutary provision of asking for grant of leave by a person making a complaint when such person is not the aggrieved person has to be borne in mind by the Magistrate before taking cognizance of the offence dealt with under Section 198, Cr. P. C. The grant of such leave cannot be presumed or implied to have been granted, merely because the Magistrate has taken cognizance of the offence. If that was so the very object of the requirement of leave being granted for filing such a complaint will be frustrated. The records should therefore show that the leave was asked for and was granted: Janardhan Chaitu v. Guna Balkrishna, AIR 1962 Bom 33.
5. That the provisions of Section 198 are mandatory would also be apparent from Section 238 of the Code, which deals with the circumstances under which a person can be convicted of an offence although he has not been charged with that specific offences, such as when a person is charged with an offence and the facts proved reduce it to a minor offence or when a person is charged of an offence and the facts proved only go to show that an attempt to commit such an offence was made although the attempt was not separately charged. Clause (3) of the Section specifically states that the provisions of that Section however do not authorise a conviction of any offence referred to in Section 198 or Section 199 when no complaint had been made as required by these sections. The Supreme Court in the decision reported in AIR 1960 SC 82 Abdul Rehman Mahomed Yusuf v. Mahomed Haji Ahmad. held that the provisions of Section 198 are mandatory.
6. As the complaint petition had been filed without satisfying the requirements of Section 198, it is manifest that the learned Magistrate had no jurisdiction to take cognizance of the offence. Accordingly, I would allow the application, set aside the conviction and sentence passed on the petitioner and dismiss the complaint petition for want of necessary jurisdiction of the Court Under Section 198 Cr. P. C. The rule issued against the petitioner for enhancement of sentence is discharged.