The Magistrate cannot take cognizance of the offence under S.497 or 498 of the Penal Code on a police report. S.198 of the Code imposes an inhibition against taking cognizance of any offence punishable under Chap.20 of the Penal Code 'except upon complaint made by some person aggrieved by the offence'.

1. Facts may be stranger than fiction. The allegation in this case sounds like a fiction, in that a mother who crossed the age of fifty left her husband, sons and daughters-in-law and she eloped with a young man. The aggrieved husband complained to the Magistrate. The complaint was forwarded to the police under S.156(3) of the Code of Criminal Procedure (for short'the Code'). The police, after investigation sent up a final report for offences under S.406, 498 and 109 of the IPC. against the woman and her alleged paramour. The trial Magistrate later dropped S 498 of the IPC. from the charge when be discovered that cognizance of the said offence should not have been taken on a police report. This revision petition is filed by the husband against the order refusing to take cognizance of the offences under S.497 and 498 of the Penal Code.

2. According to the petitioner, his wife Annamma (first respondent) was found missing on 6-2-1984 and after hectic search he came to know that she was enticed away by the second respondent and that the first respondent misappropriated some gold ornaments which the petitioner gave to her. The further allegation is that both the respondents had spent several nights together in liaison with each other. The petitioner filed the complaint before the Judicial Magistrate of the 1st Class, Chengannur, alleging offences under S.406, 497 and 109 of the Penal Code. The Magistrate forwarded the complaint to the Sub Inspector of Police, Koippuram under S.156(3) of the Code. When the charge sheet was filed by the police S.498 of the Penal Code was included instead of S.497. The Magistrate framed a charge against the respondents for the offences mentioned in the police report. Later the case had to be transferred to the file of the Judicial Magistrate of the 1st Class, Pathanamthitta consequent to the re-allocation of areas with the formation of the new judicial District of Pathanamthitta. The Chief Judicial Magistrate, Pathanamthitta took over the case to his file. On 12-6-85 the said Magistrate made a note that in view of the express bar under S.198 of the Code, the offence under S.498 of the Penal Code should not have been taken cognizance of. So he framed a fresh charge for the offence under S.406 read with S.34 of the IPC. At this stage, the petitioner came to this Court with a petition for revision.

3. There is no dispute, and it is not disputed either, that a Magistrate cannot take cognizance of the offence under S.497 or 498 of the Penal Code on a police report. S.198 of the Code is explicit in language that it imposes an inhibition against taking cognizance of any offence punishable under Chap.20 of the Penal Code "except upon complaint made by some person aggrieved by the offence". The petitioner who is the husband of the first respondent is evidently the aggrieved person in this case. On his part he did what he could by filing the complaint before the Magistrate. The learned counsel for the first respondent contended that since the complaint had been forwarded to the police for investigation and since the police have filed a final report the complaint cannot now be revived.

4. It is obvious that the Magistrate has not taken cognizance of the offence under S.497 of the IPC. when the complaint was filed. Sending the complaint to the police under S.156(3) of the Code is not an action in pursuance of taking cognizance of the offence. Under S.190 of the Code a Magistrate can take cognizance of an offence on the basis of one of the sources of information referred to therein. Though this expression "take cognizance of any offence" has not been defined in the Code, the Supreme Court has laid down principles governing the real import of that expression. Supreme Court approved the approach made by Das Gupta. J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee (AIR (37) 1950 Calcutta 437) in ascertaining the contours of the process of taking cognizance of an offe