IMPORTANT POINT
Information to police by aggrieved person for offence u/s. 498, I.P.C. is not a complaint as mentioned in Section 198 Cr. P.C.

JUDGMENT

Nagendra Rai, J. - The sole petitioner has been convicted under Section 498, IPC and sentenced to undergo RI for one year by the Sub-Divisional Judicial Magistrate, Arrah by judgment and order dated 13-6-1988. The said conviction and sentence has been upheld by the appellate Court by the judgment and order dated 13-2-1989.

2. The prosecution case, in brief, is that the informant Harihar Ram. PW 4 was married with Dewanti Devi. Both were residing with four children in the campus of Maharaja College, Arrah, where the informant was employed as a peon. He came to know from Amamath Mahto that on 13-3-1985 at 12.00 noon during his absence the petitioner enticed away his wife with ornaments and cash. He also forcibly took away one of the sons of the informant. The informant, later on, came to know that his wife was living with the petitioner at Durgapur.

Thereafter he lodged a written report before the Officer-in-charge. Arrah Nawada P.S., Ext. 1, on the basis of which a formal FIR under Sections 366 and 376, IPC was drawn and the police submitted a final report. The learned Magistrate differed with the opinion of the police and by order dated 28-6-1986 took cognizance under Section 498, IPC and transferred the case for trial.

Before the trial Court, the prosecution examined five witnesses, out of whom PW 5 Bhuneshwar Singh is a formal witness who has proved the FIR. PW 3 Rakesh Kumar, son of the informant, has been tendered. PW 1 Ram Sakhi Devi. mother-in-law of the informant (mother of Dewanti Devi), Rajesh Kumar, son of the informant, PW 2 and PW 4, the informant, supported the prosecution case and both the Courts have accepted their evidence and have convicted the petitioner under Section 498, IPC as stated above, hence the present revision application.

4. The learned Counsel for the petitioner submitted that the order of conviction and sentence is vitiatea in law for the reason that in this case the requirement of Section 198. Cr. P.C. has not been followed inasmuch as cognizance has been taken on the basis of a police report and not on the basis of the complaint made by the aggrieved person-husband before the Magistrate.

5. The offence under Section 498, IPC falls under Chapter XX of the Penal Code and Section 198, contains a provision regarding prosecution for offence against marriage. Sub-section (1) of Section 198, Cr PC, provides that no Court shall take cognizance of defence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. Sub-section (2) of Section 198, Cr P.C. provides that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or 498 of the Penal Code. However, in proviso to sub-section (2), it is stated that in absence of the husband some person who had care of the woman on his behalf at the time when such offence was committed may make a complaint on behalf of the husband with the leave of the Court. Thus, it is clear that the cognizance can be taken to the offence under Section 408 P.C. only upon a complaint made by the husband or by any person as mentioned in proviso to sub-section (2) to Section 198, Cr. P.C.

6. The question for determination is whether the word complaint occurring in Section 198, Cr. PC has to be given an ordinary meaning or it should be treated as complaint as defined under Section 2(d), Cr. PC. If the word 'complaint' is given an ordinary meaning in the sense that complaint means an expression of grief or injury by the husband before the police or the Magistrate, in that case even filing of FIR by the husband would be sufficient compliance of Section 198, Cr. P.C. However, if the word 'complaint' used in Section 198, Cr. PC, refers to the complaint as defined under Section 2(d), Cr. PC, in that situation, the case can only proceed on the basis of the complaint filed by the aggrieved person before the Magistrate and in no other manner.

7. Section 498 of th