( 1 ) APPLICANTS-ACCUSED in M. Case No. 40/91 on the file of Judicial Magistrate First Class (Court No. 3 at Vadodara have filed this petition to quash and set aside the order of enquiry dated 11-4-1991 directed by him under Section 156 (3) of Code of Criminal Procedure 1973 (Code for short ). The order or enquiry is challenged on the ground that the Learned Magistrate ought not to have been taken the cognizance under Section 494 of the Code as the complainant is not the husband of accused No. 1 in the complaint and offence under Section 406 and under Section 420 of Indian Penal Code (I. P. C. for short) cannot go together as in the one there is an element of wilful entrustment while in the other there is an element of purposeful deprivation of the property.

( 2 ) FEW facts to appreciate these contentions of challenge are as under:respondent No. 3-original complainant (hereinafter be referred to as the complainant) as a power of attorney holder of one Navinchandra Gordhanbhai Patel-husband (hereinafter referred to as husband) of applicant No. 1-accused No. 1 filed a complaint against the applicants-accused (hereinafter be referred as accused) under Sections 420 406 494 120 and 114 of IPC. The facts which constitute the offence alleged are that the accused No. 1 married with Navinchandra Gordhandas in India on 18-2-1983. After marriage husband went to America and had sent visa for accused No. 1 who also joined with her husband in America. Both of them came to India in January 1990 When they came to India in January 1990 it is the allegation of the husband that at the instigation of her parents accused No. 1-wife started behaving improperly and manner not befitting to a gentle lady. She also tried to run down the family members of the husband. It is alleged that from the joint bank account in America accused No. 1-wife transferred certain amount to Bank of Baroda Vadodara and withdrew $ 60 0 by two cheques each of $ 30 0 Accused No. 1 then gave threats that if the husband speaks something she will give divorce. Both husband and wife went back to America in March 1990. Accused No. 1 came back to India somewhere in May 1991. Husband came to know in America that accused No. 1 has married with applicant No. 3-accused No. 3 on 10-6-1983 at Baroda in Sapna Hall. Thus accused No. 1 has thereby committed offence of breach of trust and cheating and bigamy by marrying again in collusion with accused Nos. 2 to 4 Before her alleged marriage he gave a public notice through power of attorney in a daily Sandesh of 8-6-1991 that accused No. 1 is a legally married wife of Navinchandra Gordhandas. Despite this public notice accused No. 3 married with accused No. 1. With these facts the complaint is filed for criminal breach of trust as well as cheating also and for marrying again during the life time of the husband by accused No. 1-wife and all the accused having conspired for the same or abetting the commission of offence.

( 3 ) SECTION 198 (1) of the Code provides that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence. The relevant proviso for our purpose in (c) which reads as under: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 brother sister son or daughter or by her fathers or mothers brother sister or with the leave of the Court by any other person related to her by blood marriage or adoption.

( 4 ) THE proviso therefore makes an exception to the rule that the complaint for offence under Chapter XX of IPC can only be made by some person aggrieved by the offence and that is in case the person aggrieved by an offence alleged is the wife some alleged second relations referred in section can also complain. But if the person aggrieved is the husband proviso (c)