Full Judgment
G.P. Mathur, J.
1. This petition under Section 482, Cr.P.C. has been filed for quashing the order dated 21.5.1984 passed by the learned Magistrate and the order dated 31.8.1985 passed by the learned Sessions Judge.
2. Shayam Narain Gupta opposite party No. 2 filed a criminal complaint against the applicant Shankar Sahu alleging that his sister's daughter Lal Mani was married to the accused applicant 11 years back. The applicant turned out Lal Mani from his house and kept her jewellery and clothes, etc. Thereafter the applicant married Shoe Kumari Devi, accused No. 5 on 30.6.1982 though Smt. Lal Mani was still alive and her marriage with the applicant was also subsisting. It was thus alleged that the applicant had committed an offence under Section 494, I.P.C After recording the statement of the complainant and of some witnesses under Sections 200 and 202, Cr.P.C. the accused applicant was summoned to face trial. Thereafter the complainant led evidence under Section 244, Cr.P.C. and examined two witnesses, namely Shayam Narain Gupta P.W. 1, and Pattar P.W. 2. At the stage of framing charge, a preliminary objection was raised on behalf of the accused applicant on the ground that complaint on which the accused was being tried was a second complaint and that the complaint filed by Shayam Narain Gupta, who was maternal uncle of Lal Mani, was not maintainable as no leave of the Court had been obtained. The objection was dismissed by the learned Magistrate by the impugned order dated 21.3.1983 and the revision preferred against; the said order was dismissed by the learned Sessions Judge on 31.8.1985.
3. I have heard learned Counsel for the applicant and have perused the record. So far as the second complaint is concerned, it may be stated that first complaint was dismissed on 4.8.1982 on the ground that the complainant was not present and on the very next day the second complaint was filed. According to the complainant he had gone to call his Counsel when the case was called out and the complaint was dismissed in his absence. The order of dismissal was passed at a time prior to the summoning of the accused and, therefore, the dismissal of the complaint did not amount to an order of acquittal in favour of the accused applicant. The second complaint is, therefore, fully maintainable in law.
4. Learned Counsel has next contended that the complaint has been filed by Shayam Narain Gupta who was maternal uncle of Lal Mani, the first wife of the applicant, and as leave of the Court had not been taken, the complaint was not maintainable. The person aggrieved in this case would be Smt. Lal Mani being the first wife of the applicant.
5. The proviso (c) to Sub-section (1) of Section 198, Cr.P.C. reads as follows :
'(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, brother, sister, son or daughter or by her father's or mother's brother or sister or with the leave of the Court, by any other person related to her by blood, marriage or adoption.'
It clearly provides that where the person aggrieved by offence punishable under Section 494, I.P.C. is the wife, the complaint may be filed on her behalf by her mother's brother. The applicant being mother's brother of Lal Mani he was fully competent to file the complaint. It may be noticed that the expression with the leave of the Court would apply where the complaint has been filed by a person who has not been enumerated in the earlier part of Clause (c), viz. father, mother, brother, sister, son or daughter or father's brother or mother's brother or sister. When the complaint is filed by any other person related to by her marriage or adoption and is not one of those enumerated in the earlier part of Clause (c) of Sub-section (1) of Section 198, leave of Court would be required. In the present case, since the complaint has been filed by mother's brother, no leave of Court for filing the complaint is necessary.
6. Learned Counsel for the applicant has submitted that even in a case where the complaint is made by father on behalf of his daughter, leave of Court is necessary and in support of his submission he has placed reliance on Janardan Chaitu v. Guna Balkrishna, AIR 1962 Bom. 33, where it has been held that leave cannot be presumed or implied to have been granted and there should be a specific order granting leave. This case was decided in 1962 and the language used in Clause (c) of Sub-section (1) of Section 198, Cr.P.C. has undergone amendment in 1973 Code. In the present Code, the language is very clear and here the complaint is filed by mother's brother no leave of the Court is required.
7. It may also be mentioned that in Ram Prasad v. State, 1951 ALJ 214, it was held as follows:
'Where the leave has to be granted by the same Court which is to take cognizance of the offence and the Court entertains the complaint, the leave to file the complaint may be implied or presumed.'
8. The learned Single Judge of the Bombay High Court did not agree with the view taken by the Allahabad High Court in Ram Prasad's case. However, I am bound by the view taken by our Court in Ram Prasad (supra), and not by the view taken by the Bombay High Court. Since the cognizance of the offence has been taken, leave to file complaint can be presumed. I, therefore, find no illegality in the impugned orders.
9. The petition is, accordingly, dismissed. Stay order is vacated.