Judgment

S. SAGHIR AHMAD, JJ.

( 1 ) - Respondent No. 1 is the husband of respondent No. 2 who made a complaint in writing to the Womens Commission setting out therein that respondent No. 1 had contracted a second marriage and had thus committed an offence punishable under Section 494, Indian Penal Code It was also alleged that ever since the marriage with her, he had been making demands for money being paid to him which amounted to her harassment and constituted the offence punishable under Section 498-A. Indian Penal Code for which respondent No. 1 was liable to be punished.

( 2 ) THE Womens Commission sent the complaint to the police station where G. R. Case No. 418 of 1993 was registered against respondent No. 1. The police investigated the case and filed a charge-sheet in the Court of Sub-Divisional Judicial Magistrate, Anandpur, who, after perusal of the charge-sheet, framed charges against respondent No. 1 under Section 498a as also under Section 494, Indian Penal Code

( 3 ) AGGRIEVED by the framing of the charge by the Sub-Divisional Judicial Magistrate, Anandpur, respondent No. 1 filed a petition (Criminal Misc. Case No. 1169/94) under Section 482 of the Code of Criminal Procedure (for short, Code) in the Orissa High Court for quashing the proceedings and the charges framed against him. The High Court by its impugned Judgment dated 3-5-95 partly allowed the petition with the findings that since respondent No. 2 had not herself personally filed the complaint under Section 494, Indian Penal Code, its cognizance could not have been taken by the Magistrate in view of the provisions contained in Section 198 (1) of the Code. Consequently, the charge framed by the Magistrate under Section 494, Indian Penal Code was quashed but the charge under Section 498-A, Indian Penal Code was maintained and the petition under Section 482, Criminal Procedure Code to that extent was dismissed.

( 4 ) IT is this Judgment which has been challenged before us by the State of Orissa. We have heard the learned counsel for the parties.

( 5 ) THE Judgment of the High Court so far as it relates to the quashing of the charge under Section 494, Indian Penal Code, is wholly erroneous and is based on complete ignorance of the relevant statutory provisions.

( 6 ) THE first Schedule appended to the Code indicates that the offence under Section 494, Indian Penal Code is non-cognizable and bailable. It is thus obvious that that the police could not take cognizance of this offence and that a complaint had to be filed before a Magistrate.

( 7 ) RELEVANT portion of Section 198 which deals with the prosecution for Offences against Marriage provides as under :-

"198. Prosecution for offences against marriage :- (1) No Court shall take cognizance of an offence punishable under Chapter 20 of the Indian Penal Code (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 a 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 ;

(C) where the person aggrieved by an offence punishable under (Section 494 or Section 495) of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, sister, son or daughter or by her fathers or mothers brother or sister [or, with the leave of the Court, by any other person related to her by bl