IMPORTANT POINTS
Did the prosecution obtained sanction of the Court to prosecute the accused as is essential under Section 198(2) of the Cr.P.C. The explanation given by the investigating officer is that, in view of the fact that there is also an offence under Section 306 of the I.P.C. against the accused, sanction under Section 198, Cr.P.C. is not necessary.

JUDGMENT :

The appellant is the accused in S.C.No.80/2003 on the file of the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram, who was found guilty for having committed the offence punishable under Section 497 of the I.P.C. and sentenced to undergo simple imprisonment for three years. Aggrieved, he is before this Court.

2. The facts in brief are thus:

PW5, the husband of the deceased, was employed in Saudi Arabia. He had not visited the wife and daughter for more than 2½ years. His wife Sobha was a Homoeo Doctor and daughter Archana was 10 years old. The accused was employed as a Photographer in the Forensic Science Laboratory and got acquainted with the deceased Sobha. It is said that their physical intimacy led to the pregnancy of the deceased. Attempts were made by the accused and Sobha to get the pregnancy aborted. The Doctor, however, dissuaded her as the fetus was already five months old.

3. The prosecution case is that the accused after having knowledge and reason to believe that Sobha was the wife of another man, without the consent or connivance of that man, had sexual intercourse with her and was therefore guilty of committing the offence of adultery punishable under Section 497 of I.P.C.

4. At some time between 18.05.1996 and 21.05.1996, the deceased Sobha somehow caused the death of her mother Krishnamma and her daughter Archana and thereafter, committed suicide by hanging herself in her house. The prosecution also accused the accused of having abetted Sobha to commit suicide, and therefore, he is guilty under Section 306 of I.P.C.

5. PW1, the brother-in-law of the deceased, gave Ext.P1 statement to PW17, the Sub Inspector of Police, Balaramapuram Police Station, stating that Sobha had become pregnant in consequence of an illicit relationship with the accused, a Photographer, and that having failed in her attempt to get the pregnancy aborted, she took the extreme step of annihilating her mother and daughter and thereafter, committed suicide in order to avoid the disgrace brought about by her to the family and herself. Initially, Crime No.121/1996 was registered at Balaramapuram Police Station under Section 174 of the Cr.P.C. Subsequent investigation implicated the accused of the aforesaid offence.

6. Surprisingly, PW5, the husband of the deceased, did not make any complaint against the accused. In the statement of PW1 also, there is no allegation that the deceased had physical intimacy with the accused without the consent or connivance of her husband. The most essential ingredient of Section 497 is that the sexual intercourse by the accused with the married lady should have been without the consent or connivance of her husband. Section 198 of the Cr.P.C. permits cognizance to be taken for an offence punishable under Section 497, coming under Chapter XX of the I.P.C. only on the basis of a complaint by the husband of the lady subjected to sexual intercourse by the accused. There is also neither any evidence to indicate that the husband serving abroad had authorised PW1 or anyone else to make a complaint, nor did the prosecution obtained sanction of the Court to prosecute the accused as is essential under Section 198(2) of the Cr.P.C. The explanation given by the investigating officer is that, in view of the fact that there is also an offence under Section 306 of the I.P.C. against the accused, sanction under Section 198, Cr.P.C. is not necessary. The learned Sessions Judge accepted that contention of the investigating officer, which I find unsustainable.

7. Though the accused was charge sheeted under Sections 497 and 306 of the I.P.C., the learned Sessions Judge came to the conclusion that there is no evidence regarding abetment to suicide, the essential requisite to attract Section 306 I.P.C. The deceased in her suicide note recovered by the prosecution does not put the blame of her death on anyone. The learned Sessions Judge rightly concluded that there is absolutely no evidence regarding the accused instigating