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Sureshchandra Vadilal Shah Vs. Shantilal Shankarlal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1968CriLJ117; (1967)GLR290
AppellantSureshchandra Vadilal Shah
RespondentShantilal Shankarlal and anr.
Cases ReferredSain v. Emperor A.I.R.
Excerpt:
.....bench of the high court of bombay held in that casa that the conviction under section 498 of the penal code was bad in law in absence of any complaint made by the husband of the woman in respect of whom the offence was committed. absence of those allegations would render that complaint no good so as to say that it complies with the provisions contained in section 199 of the indian penal code, much though it does comply with regard to an offence punishable under section 498 of the indian penal code. on those facts, it was held that for the purpose of section 199 of the criminal procedure code the complaint need not specify precisely the section under which the accused is to be charged so long as it sets forth matter which, if proved, would warrant a conviction, and a desire is expressed..........in respect of the charges levelled against him under sections 366, 497 and 498 of the indian penal code.2. the opponent no. 1 was married with one jayahen about 8 or 9 years ago, and they have four children. the accused-applicant was living in the same mohalla in palanpur, where they were living, and it appears that the accused developed some intimacy with jayaben. he used to visit her house, even during the absence of her husband, in spite of his being asked not to visit his house. on the evening of 29.7.65, when he returned home from his shop, he did not find his wife, and on inquiry he learnt about the opponent no. 1 having taken her away towards udaipur side, by giving her false promises of bringing happiness by marrying with her etc. on those allegations, he filed a criminal.....
Judgment:

N.G. Shelat, J.

1. This application is directed against an order passed on 31.1.1966 by Mr. R.N. Desai, Judicial Magistrate, First Glass, Palanpur in Criminal Case No. 613 of 1965 whereby the applicant-accused came to be committed under Section 213 of the Criminal P.C., to the Court of Session at Palanpur in respect of the charges levelled against him under Sections 366, 497 and 498 of the Indian Penal Code.

2. The opponent No. 1 was married with one Jayahen about 8 or 9 years ago, and they have four children. The accused-applicant was living in the same mohalla in Palanpur, where they were living, and it appears that the accused developed some intimacy with Jayaben. He used to visit her house, even during the absence of her husband, in spite of his being asked not to visit his house. On the evening of 29.7.65, when he returned home from his shop, he did not find his wife, and on inquiry he learnt about the opponent No. 1 having taken her away towards Udaipur side, by giving her false promises of bringing happiness by marrying with her etc. On those allegations, he filed a criminal complaint against the accused-applicant for offences under Section 497 and 498 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class, at Palanpur. The evidence led by the complainant in the case disclosed prima facie about the accused having abducted her by deceitful means for the purpose of having sexual intercourse, and having committed adultery with her without her consent or connivance, so as to be liable for offence under Sections 366, 497 and 498 of the Indian Penal Code. Since the offence under Section 366 of the Indian Penal Code, was exclusively triable by Court of Session at Palanpur, he committed him to that Court, under Section 213 of the Criminal P.C. It is against that order of commitment, that the accused has preferred this application to this Court.

3. Of the various contentions raised in the application, the one which was urged by Mr. Sheth, the learned advocate for the applicant was that the learned Magistrate has no jurisdiction to frame a charge for an offence o! adultery punishable under Section 497 of the Indian Penal Code, and then again to commit the accused to stand his trial in the Court of Session along with other two charges in absence of any valid complaint required to be made to the Magistrate by the complainant under Section 199 of the Criminal P.C. According to him, the complaint before the learned Magistrate, much though it discloses Section 497 of the Indian Penal Code, under which the accused was sought to be prosecuted, nowhere sets out any facts which constitute an offence of adultery contemplated under Section 497 of the Indian Penal Code. The other point raised was that since adulterous intercourse with Jayaben was said to have taken place either at Udaipur or at Bombay, and not within the territorial jurisdiction of the Court of the Magistrate, it had no jurisdiction to try or commit the accused for that offence to the Court of Session at Palanpur, as the offence of adultery was independent and again complete by itself, and consequently it was said that the order of commitment of the accused to the Court of Session to stand his trial in respect of that offence would be bad in law and is liable to be quashed under Section 215 of the Criminal P.C. Now, as provided in Section 215 a commitment once made under Section 213 by a competent Magistrate...can be quashed by the High Court only, and only on a point of law. It would be, therefore, necessary to consider the question as to whether the commitment of the accused to stand his trial in the Court o Session in respect of an offence under Section 497 is not valid, so as to have the same quashed.

4. Now it may be mentioned at the outset that the complainant makes allegations constituting an offence under Section 493 and consequently there is nothing wrong in respect of that charge. It is equally clear and over which there can be no dispute, that if the evidence disclosed, in a complaint before the Magistrate, any other offence not referred to as such therein, a charge can no doubt be framed against the accused for that offence, and if that offence is triable only by the Court of Session, the Magistrate has to commit the accused to the Court of Session. In that event, it is equally clear, that if any other charges are framed, though they are triable by the Magistrate himself, he can be committed in respect of those offences as well, along with the other charge triable exclusively by Court of Session. Thus, the learned Magistrate was justified in law to commit the accused to the Court of Session for the offences under Sections 498 and 366 of the Indian Penal Code. Even he would be justified to commit him in respect of the charge under Section 497, if it were otherwise proper in the sense, that it complied with the provisions contained in Section 199 of the Criminal Procedure Code, and also had jurisdiction to try or commit the same to the Court of Session at Palanpur. Before going to Section 199 of the Criminal Procedure Code we would refer to Section 190 of the Criminal Procedure Code which relates to the cognizance of offences that can be taken by the Magistrates, Clause (1) thereof proceeds by saying that 'Except as hereinafter provided, any Presidency Magistrate and any Judicial Magistrate specially empowered in that behalf under Section 37 may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence;' Then there are two other Clauses (b) and (c) with which we are not concerned in the present case. The cognizance of an offence has, therefore, to be taken by the Magistrate subject to the other provisions provided in the Criminal Procedure Code. In that would come Section 199 which provides as under:

No Court shall take cognizance of an offence under Section 497 or Section 498 of the Indian Penal Code, except upon a complaint made by the husband of the woman; or. in his absence made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed.

With the proviso thereto we are not concerned in the present case. It follows therefrom that the Magistrate can take cognizance of an offence of adultery under Section 497, or of enticing or taking away a married woman, under Section 498 of the Indian Penal Code provided there is a complaint made by the husband of the woman concerned. As already stated above, the complaint in respect of an offence under 8. 498 is proper and there is no dispute in that respect. It also refers to Section 497 of the Indian Penal Code, but that is said to be not enough compliance of Section 199 of the Criminal Procedure Code. The contention made out by Mr. Sheth was that the mere mention of Section 497 in the complaint cannot be enough to say that the Court was competent enough to take cognizance of that offence as, according to him, there was no complaint as such in respect of the said offence as required in law. In order to appreciate what is meant by the term 'complaint' used in Section 199 of the Criminal Procedure Code, we have to turn to Section 4 (1)(h) of the Criminal Procedure Code which defines the term 'complaint' as meaning the allegations made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. The term 'offence' has also been defined in Section 4(1)(c) as meaning any act or omission made punishable by any law for the time being in force. We have to give effect to the use of those terms need in Section 199, and on the basis of their definitions given under the Code, it must be said that the complaint must disclose allegations showing that the person sought to be charged with adultery, has committed an act of sexual intercourse with the complainant's wife, without his consent or connivance as required under Section 497 of the Indian Penal Code, and further, that those allegations constituting that offence are made with a view to take action against him under the Code. Those allegations may be oral or in writing before the Magistrate. It is only then that the Magistrate becomes entitled to take cognizance of an offence under Section 497 of the Indian Penal Code. The words 'cognizance of an offence' in Section 199 if read along with Clause (a) of Section 190(1) of the Criminal Procedure Code and then again having regard to the definition of the term 'offence' in Section 4(1)(c) we feel no doubt whatever that the complaint must set out facts which constitute an act on the part of the accused and that act must be one made punishable by law for the time being in force viz. under Section 497 of the Penal Code as in the present case.

5. It was urged by Mr. Vin, the learned advocate for opponent No. 1, as also by Mr. Nanavati, the learned Assistant Govt. Pleader for the State, that all that Section 199 requires is a complaint from the husband of the woman in respect of whom the offence of adultery is said to have been committed and if such a complaint is made to the Magistrate and also when it refers to the provision of law viz., under Section 497 of the Penal Code under which the accused is sought to be prosecuted, it should be taken as enough compliance of a complaint made by the husband in respect of that offence and even if any such omission in setting out certain facts in that respect has been made, it would amount to nothing more than an irregularity in the complaint curable under Section 537(a) of the Criminal P.C. provided that there is no prejudice caused to the accused. Now it is well settled, in view of Section 199 of the Criminal P.C. that a complaint in respect of an offence of adultery alleged to have been committed by the accused must be made by the husband of that woman with whom he is said to have committed adultery, and absence thereof would take away the jurisdiction of the Court of the Magistrate in proceeding therewith, and in case the accused happens to be committed to the Court of Session in respect of the offence, one can easily say that the order of commitment in that respect would be bad in law. In a case of Emperor v. Isap Mahomed (1907) ILR 31 Bom 218, the accused was tried on charges under Sections 363 (kidnapping from lawful guardian, ship) and 366 (kidnapping a woman) of the Indian Penal Code. At the conclusion of the evidence the Court added a charge under Section 498 (enticing a married woman) of the Indian Penal Code, notwithstanding the objection raised by the counsel of the accused. The accused came to be convicted in respect of all the charges including the one under Section 498 of the Penal Code. In an appeal filed by the accused, it was contended that the procedure adopted was contrary to the provisions of Section 199 and to the spirit of Section 238 of the Criminal P.C. Apart from the procedure being found not regular, the Division Bench of the High Court of Bombay held in that casa that the conviction under Section 498 of the Penal Code was bad in law in absence of any complaint made by the husband of the woman in respect of whom the offence was committed. The same view was taken in a case of Emperor v. Imankhan Rasulkhan : (1912)14BOMLR141 . In that case, the accused was charged in the first instance with offences under Section 366 and 379 of the Penal Code. At the beginning of the inquiry, no charge under Section 498 was formulated against the accused. When the complainant, who was the husband of the woman concerned, was examined as a witness there were certain statements made in his deposition amounting to an offence under Section 498 against the accused. Finally, the Court considering the evidence acquitted the accused on charges under Sections 366 and 379, but convicted him of an offence under Section 498 of the Penal Code. In appeal the Division Bench of the High Court of Bombay held that the Court could not take cognizance of the offence under Section 498, as there was no complaint by the husband, and the statements in the husband's deposition as a witness could not be said to be a complaint within the meaning of Clause (b) of Section 4 of the Criminal P.C. This latter case disposes of an argument about the deposition of the complainant in this case for being taken in the nature of an oral complaint contemplated under Section 4(1)(h) of the Criminal P.C. In fact almost all the High Courts have taken the view that the Court cannot take cognizance of the offence under Section 497 or 498 in absence of a complaint by the husband and further that the statements in the husband's deposition as a witness could not be taken as a complaint within the meaning of Section 4(1)(h) of the Criminal P.C. Apart from the authorities on the point, the definition of the term 'complaint' makes that position absolutely clear when it says that the 'complaint' means allegations made orally or in writing before the Magistrate with a view to his taking action under this Code against certain person having committed the offence. In other words, a complaint, either oral or in writing, must precede the cognizance of the offence being taken by a Magistrate by reason of Section 190(1)(a) of the Criminal Procedure Code which obviously has been subject to Section 199 of the Criminal Procedure Code. The deposition of the complainant, therefore, being subsequent to the cognizance of an offence being taken by the Magistrate cannot serve the purpose of being called a 'complaint' as defined under Section 4(1)(h) of the Criminal Procedure Code.

6. Turning now to the complaint, we find no allegation whatever to show that the accused had committed sexual intercourse with his wife as required under Section 497 of the Indian Penal Code. The allegations in the complaint relate to the accused having come in close contact with his wife at Palanpur and then his having enticed her away, and left Palanpur for the purpose of having sexual intercourse with his wife. These allegations would no doubt be enough for an offence under Section 498 of the Indian Penal Code, but certainly they will not go to suggest, much less show, that the accused was sought to be prosecuted for his having committed adultery with his wife so as to be punishable under Section 497 of the Indian Penal Code. In this connection, it was attempted to be urged by Mr. Nanavati, the learned Assistant Govt. Pleader for the State, that Section 199 should be liberally construed and that the recitals in the complaint should be so considered that having regard to the purpose for which he had actually taken his wife away from Palanpur read with a reference to this section dealing with the offence of adultery as sufficient compliance under Section 199 of the Criminal Procedure Code. We do not agree with that suggestion much though we feel inclined to think that such, provisions of law no doubt should be liberally/construed. In our opinion, however, a mere mention of a section for which the accused is sought to be prosecuted cannot be enough unless the allegations set out in the complaint refer to the act constituting an offence under any law. What one has to look therefore is as to whether on a broad reading of the complaint it gives a dear indication that the set of facts mentioned therein disclose the offence under Section 497 of the Indian Penal Code. We cannot go to the length of saying, as Mr. Nanavati wanted us to go, that since the accused had enticed away the wife of the complainant and since both of them had left Palanpur for going towards Delhi on the night of 29.7.65, they must have necessarily gone for that purpose to an extent that the accused had actually committed adultery with her in the sense that he had sexual intercourse with her. Enticing away a woman or taking away a woman for a purpose such as of having sexual intercourse with her, constitute certain type of offences and for that the accused is committed to the Court of Session by the learned Magistrate. But an offence of adultery punishable under Section 497 of the Indian Penal Code is a distinct offence and the person who commits adultery has got to be shown that he had sexual intercourse with that woman, knowing or having reason to believe her to be the wife of another person, without the consent or connivance of that man. The act that becomes punishable under law viz., under Section 497 of the Indian Penal Code is an act of adultery with the wife of the complainant and it is only in respect of that act which amounts to an offence that a complaint from her husband is essential as required under Section 199 of the Criminal Procedure Code. The allegations in the complaint, there, fore, must point at that act as having been committed by the accused in respect of the wife of the complainant. Absence of those allegations would render that complaint no good so as to say that it complies with the provisions contained in Section 199 of the Indian Penal Code, much though it does comply with regard to an offence punishable under Section 498 of the Indian Penal Code. We are not referred to any authority saying that a mere reference to the section under which the accused is sought to be prosecuted would be enough compliance under Section 199 of the Criminal Procedure However, on the other hand, a reference was. made to a case of Sain v. Emperor A.I.R. 1934 Lah. 945. In that case, a complaint was filed in the Court of the Additional District Magistrate of Sialkot against Sain and others alleging that they, had abducted his wife Paro and that Sain had been having sexual intercourse with her against her will knowing that she was his wife, At the trial Viru gave evidence that Sain had seduced his wife, has had children by her and that he was now residing with her in Sialkot City. On those facts, the trying Magistrate framed charges against Bain under Sections 497 and 498 of the Indian Penal Code and convicted him for the same. In appeal the order of conviction and sentence passed against him under Section 497 alone was upheld. In a revision filed before the High Court by the petitioner, it was contended that a trial was illegal for want of a com. plaint by the husband without which, under the provisions of b. 199 of the Criminal Procedure Code, no Court had jurisdiction to take cognizance of an offence under Section 497 of the Indian Penal Code. It was held that the complaint made by Viru contained the allegations which covered all the ingredients necessary for a conviction under Section 497, that is to say, marriage between Mt. Taro and Viru, sexual intercourse between Mt, Taro and the accused without Viru's consent or connivance, and knowledge on the part of Sain that Mt. Taro was Viru's wife. The complaint, however, did not mention Section 497 but it referred to only Sections 366 and 368 in the heading of of the complaint. On those facts, it was held that for the purpose of Section 199 of the Criminal Procedure Code the complaint need not specify precisely the section under which the accused is to be charged so long as it sets forth matter which, if proved, would warrant a conviction, and a desire is expressed that the accused be punished for what he has done. In other words, what was contemplated under Section 199 of the Criminal Procedure Code was to prevent Magistrates enquiring of their own motion into cases connected with marriage unless the husband or other person authorised moves them to do so. Thus, what is considered essential is the allegations made in the complaint which constitute an act amounting to an offence under any law and a mere mention of a section for which he is sought to be liable cannot, therefore, be enough to say that it complies with the provisions contained in Section 199 of the Criminal Procedure Code. It appears, therefore, clear that the present complaint nowhere sets out facts which constitute an offence of adultery as contemplated under Section 497 of the Indian Penal Code and when that is so, it does not amount to a complaint which is required to be made by reason of Section 199 of the Criminal Procedure Code. The complaint filed in the Court of the learned Magistrate was, therefore, no valid complaint in respect of an offence under Section 497 of the Indian Penal Code be as to entitle him to take cognizance and proceed further and then commit the accused to stand his trial in the Court of Session in respect of that offence with two other offences punishable under Sections 366 and 498 of the Indian Penal Code.

7. It was urged that want of a reference about the act of adultery said to have been committed by the accused with the complainant's wife in the complaint can at best be said to be an omission or irregularity in the complaint and that way having regard to Clause (a) of Section 537 of the Criminal Procedure Code, it is curable since it has occasioned no failure of justice and no prejudice to the accused. We have taken the view that the complaint before the learned Magistrate does not set out any facts or make any allegations which constitute an act and that way an offence punishable under Section 497 of the Indian Penal Code and that, therefore, it serves no compliance with the provisions contained in Section 199 of the Criminal Procedure Code. It is not a case of an omission of some details in the complaint in respect of an offence for which the accused is Bought to be prosecuted. But when it does not amount to a complaint as required in law, it takes away the jurisdiction of the Court in taking cognizance in respect of that offence punishable under Section 497 of the Indian Penal Code. When that is so, it cannot be taken to be a case of an omission or irregularity in the complaint and the question of curability under Section 937, much though that may not have occasioned any failure of justice, cannot arise. In our view, therefore, Section 537(a) of the Criminal Procedure Code cannot help the opponents in the case. In this view of the matter, the other point relating to the' question of the jurisdiction of the Court in trying the accused for an offence under Section 497 of the Indian Penal Code would not survive.

8. The order of commitment made by the learned Magistrate in so far as it relates to the. offence under Section 497 of the Indian Penal Code is concerned, shall be set aside and that the rest of the order of commitment of the accused in respect of the other offences shall stand.


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