Amaresh Roy, J.
1. This Rule was issued at the instance of the complainant and is directed against the order passed by the learned Presidency Magistrate discharging the accused under section 253(2), Cr. P. C. on a view of law regarding maintainability of the petition of complaint after cognizance had been taken and before any evidence was taken in the case. Short facts are that on 4th of July, 1963 the present petitioner filed a petition of complaint alleging an offence under Section 494 of the Indian Penal Code against the opposite party to whom she had been married in 1942. Cognizance was taken by the learned Additional Chief Presidency Magistrate after a report was obtained by a judicial enquiry by his order dated 19th of July, 1963. Accused appeared in court and was enlarged on bail and then the case was transferred to the court of the learned Presidency Magistrate Shri A. K. Roy. Before that learned Magistrate a preliminary point was taken on behalf of the accused by pleading that the complainant had instituted a suit, being Matrimonial Suit No. 41 of 1961, and in that suit had obtained a decree for divorce on 28th of February, 1962. It was contended that by that decree the relationship of husband and wife having been severed between the parties, at the date on which the present petition of complaint was lodged, that is on 4th of July, 1963, she was not a person competent to make that complaint in view of the provision in Section 198, Cr. P. C. The offence under Section 494, I. P. C. alleged by the petition of complaint is said to have been committed by a second marriage by the accused with another female Pritilata Biswas under Special Marriage Act, 1954 by a False declaration that he was unmarried. That was on 29th January, 1960. The learned Magistrate, in view or fact that before the complaint had been filed by the petitioner there was a decree of divorce severing the tie of marriage, held that the complainant was not a person competent to lodge the complaint for that particular offence. Section 198, Cr. P. C. in its material part is in these terms:
'Prosecution for breach of contract and offences against marriage. No court shall take cognizance of an offence falling in Chapter XIX or Chapter XXI of the Indian Penal Code or under Sections 493 to 496 (both inclusive) of the same. Code, except upon a complaint made by some person aggrieved by such offence.'
The question, therefore, is whether the petitioner who has made this complaint is a 'person aggrieved' within the meaning of that section.
2. The learned Advocate Mr. N.C. Sen, appearing in support of this Rule, has contended that a wife who is a person aggrieved by the offence under Section 494, I. P. C. at the date of that alleged offence remains the person aggrieved despite the fact that at a latter date before the complaint is lodged in court there has been a decree for divorce dissolving the marriage between the complainant and the accused. In support of that contention of his, Mr. Sen has relied on the language in Section 198 and also has relied on a decision of the Madras High Court in the case of G. Narayana, reported in : AIR1932Mad561 .
3. Mr. Kanak Ghose, appearing to oppose this Rule on behalf of the accused, has emphasised that at the date when the complaint was filed in court all the relationship between the complainant and the accused had been severed by me decree of divorce and, therefore, according to Mr. Ghose's argument she could not have any grievance whatever the accused may do or not do. In advancing that argument Mr. Ghose seems to have neglected the loud fact that the offence complained of is of a date when the complainant was still the legally married wife of the accused. Therefore, there cannot be any question that at the date of the offence alleged to have been committed she was a person aggrieved by such offence. Real question is if by the subsequent decree of divorce she has ceased to be a person aggrieved by such offence within the meaning of Section 198. Although Mr. Ghose emphasised the severance of the tie of marriage by the decree of divorce I do not see anything in Section 198, Cr. P. C. or in principle why the wife should cease to be a person aggrieved by a subsequent decree of divorce. On the language of Section 198 itself, I have no hesitation in holding against Mr. Ghose's contention and I feel braced in that view by the decision of the Madras High Court on which Mr. Sen has relied.
4. The State has appeared in this case and is represented by the learned Advocate Mr. Balai Roy. Mr. Roy on the question of interpretation of Section 198 has supported the arguments of Mr. Sen for the petitioner but he has pointed of the length of time that has elapsed from the date of the alleged offence and the date of lodging the complaint. Mr. Roy tendered to suggest that on that ground the complaint should not have been entertained by the learned Magistrate. I have already mentioned that the cognizance was taken legally and by a competent Magistrate. Mere lapse of time is not by itself a reason for throwing out a complaint though that may be a relevant consideration at the trial for assessing evidence when that is adduced. At the present stage, therefore, the delay is not a just ground to enable the learned Magistrate to make an order discharging the accused before taking any evidence.
5. In the result, this Rule is made absolute. The order of the learned Presidency Magistrate dated 4th of November, 1963 is set aside and I direct that the case be tried by another competent Magistrate to be nominated by the learned Chief Presidency Magistrate according to law.
6. Let the records be sent down as earlyas possible.