Semantic Analysis by spaCy
Parminder Kaur and ors. Vs. Joginder Kaur and anr.
Decided On : Feb-19-2004
Court : Punjab and Haryana
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No. 51269-M of 2002', 'appellant' => 'Parminder Kaur and ors.', 'authreffered' => '', 'casename' => 'Parminder Kaur and ors. Vs. Joginder Kaur and anr.', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. (3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.', 'caseanalysis' => null, 'casesref' => 'State of Haryana v. Ch. Bhajan Lal;', 'citingcases' => '', 'counselplain' => ' R.S. Aulakh, Adv.', 'counseldef' => ' Vikas Bahal, Adv. for Respondent No. 1 and; H.S. Grewal, DAG', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2004-02-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Nirmal Singh, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Nirmal Singh, J.</p><p style="text-align: justify;">1. The relevant facts for disposal of this petition are that Resham Singh was married to petitioner No. 1, Parminder Kaur. In the year 1989, the police of Police Station, Rahon, took Resham Singh in their custody from his house and had taken him to an unknown place, suspected him to be a terrorist involved in terrorist activities. Petitioner No. 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. The police had also not disclosed his arrest, detention or elimination by fake or genuine encounter. He has never met petitioner No. 1 or any other relative or friend. Therefore, Resham Singh is presumed to be dead as he is unheard for the last more than 7 years i.e. since 1989.</p><p style="text-align: justify;">2. Petitioner No. 1, keeping in view her own well being and better comfort of life and independent decision and without any pressure is now living with Inder Pal Singh, petitioner No. 2 at his house in Village Galoti, Tehsil and District Moga since 10-2-1998.</p><p style="text-align: justify;">3. Joginder Kaur, respondent, mother of Resham Singh, filed a complaint under Section 494, 120-B IPC against all the petitioners on the allegation that Resham Singh is still alive and he left the house about 3 years ago after completely fed up from petitioner No. 1.</p><p style="text-align: justify;">4. On notice of motion having been issued, separate replies have been filed by the respondents.</p><p style="text-align: justify;">5. In the reply filed by respondent No. 1, mother of Resham Singh, she has raised a preliminary objection that petition is not maintainable as the summoning order dated 7-7-2002, Annexure P-2, is a revisable order and the petitioners have to approach the learned Sessions Judge instead of filing the present petition. Respondent No. 1 further stated in the reply that the petition can be decided only after recording the evidence. Therefore, the petition under Section 482 Cr. P.C. is not maintainable. In reply, she also stated that she is competent to file the complaint against the petitioners being mother in law of petitioner No. 1.</p><p style="text-align: justify;">6. In reply filed by the State, it was denied that Resham Singh was ever taken into custody. The other averments made in the petition are also denied being false, wrong and baseless.</p><p style="text-align: justify;">7. I have heard learned counsel for the parties and carefully gone through the record,</p><p style="text-align: justify;">8. The important legal issue involved in this petition is whether a complaint under Section 494 IPC can be filed on behalf of the husband by any other person?</p><p style="text-align: justify;">9. Chapter XX of the Indian Penal Code relates to the prosecution for offence against the marriage. When any offence is committed under Chapter XX of the Indian Penal Code, the complaint is to be filed as per Section 198 Cr. P.C. Section 198 reads as under ;--</p><p style="text-align: justify;">'198. Prosecution for offences against marriage.-- (1) 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 : Provided that--</p><p style="text-align: justify;">(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;</p><p style="text-align: justify;">(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf;</p><p style="text-align: justify;">(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).</p><p style="text-align: justify;">(2) For the purposes of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code :</p><p style="text-align: justify;">Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his be-half.</p><p style="text-align: justify;">(3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.</p><p style="text-align: justify;">(4) The authorisation referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate, signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.</p><p style="text-align: justify;">(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.</p><p style="text-align: justify;">(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.</p><p style="text-align: justify;">(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.</p><p style="text-align: justify;">10. A perusal of this section shows that under this section, the complaint can be filed only by an 'aggrieved person'. In the Law Lexicon with legal maxims, the exact meaning of word 'aggrieved person' is as under :--</p><p style="text-align: justify;">'Aggrieved person. -- A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject matter supposed to be wrongly decided.'</p><p style="text-align: justify;">11. Further in the Judicial Dictionary, 13th Edition by K.J. Aiyar, the expression 'Aggrieved person' means a person who has got a legal grievance, i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffered some sort of disappointment. In view of this definition, any fanciful or sentimental grievance does not suffice. There must be injuria or a legal grievance.</p><p style="text-align: justify;">12. But under Sub-clause (c) of Section 198 Cr. P.C. there is an exception that when the wife is the aggrieved person, the complaint can be filed 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 person related to her by blood, marriage or adoption but in the case of husband, no other person, except the husband, is, the aggrieved person. The other person may have a sentimental grievance but legally he/ she is not an aggrieved person as has been laid down in G. Narasimhan v. T. V. Chokkappa, AIR 1972 SC 2609 : (1973 Cri LJ 52). In Raxaben v. State of Gujarat, 1992 Cri LJ 2946 (Guj), it has been held that husband is the only aggrieved person who can file a complaint and the Court cannot take cognizance of the offence and if the Court takes the cognizance, the same is without any jurisdiction.</p><p style="text-align: justify;">13. In view of the above discussion, it is clear that the cognizance taken by the learned Judicial Magistrate Ist Class, Nawashshr, is without jurisdiction and when the cognizance is without jurisdiction, then the complaint can be quashed even after the framing of the charge or at any stage. The Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) has also laid down guidelines where High Court can exercise inherent powers under Section 482 Cr. P.C. to prevent the abuse of process of law. However, this should be done sparingly and in rarest of rare cases. The guidelines are as under :</p><p style="text-align: justify;">'1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</p><p style="text-align: justify;">2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</p><p style="text-align: justify;">3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</p><p style="text-align: justify;">4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</p><p style="text-align: justify;">5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused,</p><p style="text-align: justify;">6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</p><p style="text-align: justify;">7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.</p><p style="text-align: justify;">14. As it has been noticed above, learned trial Court has taken the cognizance without any jurisdiction, therefore, continuation of the proceedings against the petitioners will be an abuse of the process of law.</p><p style="text-align: justify;">15. For the reasons mentioned above, the present petition is accepted and the complaint dated 3-4-1998, Annexure P-1 pending before Judicial Magistrate 1st Class, Nawashahr and all subsequent proceedings Including the summoning order dated 7-7-2000, Annexure P-2 are quashed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2004CriLJ2329', 'ratiodecidendi' => '', 'respondent' => 'Joginder Kaur and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '617114' ) ) $title_for_layout = 'Parminder Kaur and ors. Vs. Joginder Kaur and anr. 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No. 51269-M of 2002', 'appellant' => 'Parminder Kaur and ors.', 'authreffered' => '', 'casename' => 'Parminder Kaur and ors. Vs. Joginder Kaur and anr.', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. (3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.', 'caseanalysis' => null, 'casesref' => 'State of Haryana v. Ch. Bhajan Lal;', 'citingcases' => '', 'counselplain' => ' R.S. Aulakh, Adv.', 'counseldef' => ' Vikas Bahal, Adv. for Respondent No. 1 and; H.S. Grewal, DAG', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2004-02-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Nirmal Singh, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Nirmal Singh, J.</p><p style="text-align: justify;">1. The relevant facts for disposal of this petition are that Resham Singh was married to petitioner No. 1, Parminder Kaur. In the year 1989, the police of Police Station, Rahon, took Resham Singh in their custody from his house and had taken him to an unknown place, suspected him to be a terrorist involved in terrorist activities. Petitioner No. 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. The police had also not disclosed his arrest, detention or elimination by fake or genuine encounter. He has never met petitioner No. 1 or any other relative or friend. Therefore, Resham Singh is presumed to be dead as he is unheard for the last more than 7 years i.e. since 1989.</p><p style="text-align: justify;">2. Petitioner No. 1, keeping in view her own well being and better comfort of life and independent decision and without any pressure is now living with Inder Pal Singh, petitioner No. 2 at his house in Village Galoti, Tehsil and District Moga since 10-2-1998.</p><p style="text-align: justify;">3. Joginder Kaur, respondent, mother of Resham Singh, filed a complaint under Section 494, 120-B IPC against all the petitioners on the allegation that Resham Singh is still alive and he left the house about 3 years ago after completely fed up from petitioner No. 1.</p><p style="text-align: justify;">4. On notice of motion having been issued, separate replies have been filed by the respondents.</p><p style="text-align: justify;">5. In the reply filed by respondent No. 1, mother of Resham Singh, she has raised a preliminary objection that petition is not maintainable as the summoning order dated 7-7-2002, Annexure P-2, is a revisable order and the petitioners have to approach the learned Sessions Judge instead of filing the present petition. Respondent No. 1 further stated in the reply that the petition can be decided only after recording the evidence. Therefore, the petition under Section 482 Cr. P.C. is not maintainable. In reply, she also stated that she is competent to file the complaint against the petitioners being mother in law of petitioner No. 1.</p><p style="text-align: justify;">6. In reply filed by the State, it was denied that Resham Singh was ever taken into custody. The other averments made in the petition are also denied being false, wrong and baseless.</p><p style="text-align: justify;">7. I have heard learned counsel for the parties and carefully gone through the record,</p><p style="text-align: justify;">8. The important legal issue involved in this petition is whether a complaint under Section 494 IPC can be filed on behalf of the husband by any other person?</p><p style="text-align: justify;">9. Chapter XX of the Indian Penal Code relates to the prosecution for offence against the marriage. When any offence is committed under Chapter XX of the Indian Penal Code, the complaint is to be filed as per Section 198 Cr. P.C. Section 198 reads as under ;--</p><p style="text-align: justify;">'198. Prosecution for offences against marriage.-- (1) 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 : Provided that--</p><p style="text-align: justify;">(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;</p><p style="text-align: justify;">(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf;</p><p style="text-align: justify;">(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).</p><p style="text-align: justify;">(2) For the purposes of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code :</p><p style="text-align: justify;">Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his be-half.</p><p style="text-align: justify;">(3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.</p><p style="text-align: justify;">(4) The authorisation referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate, signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.</p><p style="text-align: justify;">(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.</p><p style="text-align: justify;">(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.</p><p style="text-align: justify;">(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.</p><p style="text-align: justify;">10. A perusal of this section shows that under this section, the complaint can be filed only by an 'aggrieved person'. In the Law Lexicon with legal maxims, the exact meaning of word 'aggrieved person' is as under :--</p><p style="text-align: justify;">'Aggrieved person. -- A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject matter supposed to be wrongly decided.'</p><p style="text-align: justify;">11. Further in the Judicial Dictionary, 13th Edition by K.J. Aiyar, the expression 'Aggrieved person' means a person who has got a legal grievance, i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffered some sort of disappointment. In view of this definition, any fanciful or sentimental grievance does not suffice. There must be injuria or a legal grievance.</p><p style="text-align: justify;">12. But under Sub-clause (c) of Section 198 Cr. P.C. there is an exception that when the wife is the aggrieved person, the complaint can be filed 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 person related to her by blood, marriage or adoption but in the case of husband, no other person, except the husband, is, the aggrieved person. The other person may have a sentimental grievance but legally he/ she is not an aggrieved person as has been laid down in G. Narasimhan v. T. V. Chokkappa, AIR 1972 SC 2609 : (1973 Cri LJ 52). In Raxaben v. State of Gujarat, 1992 Cri LJ 2946 (Guj), it has been held that husband is the only aggrieved person who can file a complaint and the Court cannot take cognizance of the offence and if the Court takes the cognizance, the same is without any jurisdiction.</p><p style="text-align: justify;">13. In view of the above discussion, it is clear that the cognizance taken by the learned Judicial Magistrate Ist Class, Nawashshr, is without jurisdiction and when the cognizance is without jurisdiction, then the complaint can be quashed even after the framing of the charge or at any stage. The Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) has also laid down guidelines where High Court can exercise inherent powers under Section 482 Cr. P.C. to prevent the abuse of process of law. However, this should be done sparingly and in rarest of rare cases. The guidelines are as under :</p><p style="text-align: justify;">'1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</p><p style="text-align: justify;">2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</p><p style="text-align: justify;">3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</p><p style="text-align: justify;">4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</p><p style="text-align: justify;">5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused,</p><p style="text-align: justify;">6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</p><p style="text-align: justify;">7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.</p><p style="text-align: justify;">14. As it has been noticed above, learned trial Court has taken the cognizance without any jurisdiction, therefore, continuation of the proceedings against the petitioners will be an abuse of the process of law.</p><p style="text-align: justify;">15. For the reasons mentioned above, the present petition is accepted and the complaint dated 3-4-1998, Annexure P-1 pending before Judicial Magistrate 1st Class, Nawashahr and all subsequent proceedings Including the summoning order dated 7-7-2000, Annexure P-2 are quashed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2004CriLJ2329', 'ratiodecidendi' => '', 'respondent' => 'Joginder Kaur and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '617114' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Aiyar', (int) 12 => 'G. Narasimhan v. T. V. Chokkappa', (int) 13 => 'jurisdiction.13', (int) 14 => 'Nawashshr', (int) 15 => 'Haryana v. Ch', (int) 16 => 'Bhajan Lal', (int) 17 => 'Nawashahr' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '1', (int) 3 => '1989.2', (int) 4 => '1', (int) 5 => '2', (int) 6 => '120', (int) 7 => '1.4', (int) 8 => '1', (int) 9 => '7', (int) 10 => '1', (int) 11 => '1.6', (int) 12 => '1', (int) 13 => '4', (int) 14 => '1', (int) 15 => '1', (int) 16 => '1', (int) 17 => '4', (int) 18 => '3-4-1998' ), 'DATE' => array( (int) 0 => 'the year 1989', (int) 1 => 'about 3 years ago', (int) 2 => '45 of 1860', (int) 3 => 'the age of eighteen years', (int) 4 => '45 of 1860', (int) 5 => 'the age of eighteen years', (int) 6 => '45 of 1860', (int) 7 => 'under fifteen years of age', (int) 8 => 'more than one year', (int) 9 => ''11', (int) 10 => '1973', (int) 11 => '1992', (int) 12 => '1992', (int) 13 => ''1', (int) 14 => '7-7-2000' ), 'ORG' => array( (int) 0 => 'Police Station, Rahon', (int) 1 => 'IPC', (int) 2 => 'fed', (int) 3 => 'State', (int) 4 => 'Court', (int) 5 => 'the Armed Forces of the Union', (int) 6 => 'Court', (int) 7 => 'Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'Commanding Officer', (int) 11 => 'the Law Lexicon', (int) 12 => 'the Judicial Dictionary', (int) 13 => 'Court', (int) 14 => 'AIR 1972', (int) 15 => 'SC', (int) 16 => 'Raxaben', (int) 17 => 'Cri LJ 2946', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'Judicial Magistrate Ist Class', (int) 21 => 'The Hon'ble Apex Court', (int) 22 => 'State', (int) 23 => 'AIR 1992', (int) 24 => 'High Court', (int) 25 => 'the First Information Report', (int) 26 => 'the First Information Report', (int) 27 => 'Magistrate', (int) 28 => 'FIR', (int) 29 => 'FIR', (int) 30 => 'Magistrate', (int) 31 => 'FIR', (int) 32 => 'Court', (int) 33 => 'Judicial Magistrate' ), 'QUANTITY' => array( (int) 0 => '10-2-1998.3' ), 'WORK_OF_ART' => array( (int) 0 => '13th Edition' ), 'PRODUCT' => array( (int) 0 => 'Cri LJ 52', (int) 1 => 'Cri LJ 527' ), 'LOC' => array( (int) 0 => 'F.I.R.' ) ), 'desc' => array( 'Judgement' => array( 'id' => '617114', 'acts' => 'Code of Criminal Procedure (CrPC) , 1974 - Sections 198 and 482; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 120B, 454 and 494', 'appealno' => 'Criminal Misc. No. 51269-M of 2002', 'appellant' => 'Parminder Kaur and ors.', 'authreffered' => '', 'casename' => 'Parminder Kaur and ors. Vs. Joginder Kaur and anr.', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. (3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.', 'caseanalysis' => null, 'casesref' => 'State of Haryana v. Ch. Bhajan Lal;', 'citingcases' => '', 'counselplain' => ' R.S. Aulakh, Adv.', 'counseldef' => ' Vikas Bahal, Adv. for Respondent No. 1 and; H.S. Grewal, DAG', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2004-02-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Nirmal Singh, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Nirmal Singh, J.</p><p style="text-align: justify;">1. The relevant facts for disposal of this petition are that Resham Singh was married to petitioner No. 1, Parminder Kaur. In the year 1989, the police of Police Station, Rahon, took Resham Singh in their custody from his house and had taken him to an unknown place, suspected him to be a terrorist involved in terrorist activities. Petitioner No. 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. The police had also not disclosed his arrest, detention or elimination by fake or genuine encounter. He has never met petitioner No. 1 or any other relative or friend. Therefore, Resham Singh is presumed to be dead as he is unheard for the last more than 7 years i.e. since 1989.</p><p style="text-align: justify;">2. Petitioner No. 1, keeping in view her own well being and better comfort of life and independent decision and without any pressure is now living with Inder Pal Singh, petitioner No. 2 at his house in Village Galoti, Tehsil and District Moga since 10-2-1998.</p><p style="text-align: justify;">3. Joginder Kaur, respondent, mother of Resham Singh, filed a complaint under Section 494, 120-B IPC against all the petitioners on the allegation that Resham Singh is still alive and he left the house about 3 years ago after completely fed up from petitioner No. 1.</p><p style="text-align: justify;">4. On notice of motion having been issued, separate replies have been filed by the respondents.</p><p style="text-align: justify;">5. In the reply filed by respondent No. 1, mother of Resham Singh, she has raised a preliminary objection that petition is not maintainable as the summoning order dated 7-7-2002, Annexure P-2, is a revisable order and the petitioners have to approach the learned Sessions Judge instead of filing the present petition. Respondent No. 1 further stated in the reply that the petition can be decided only after recording the evidence. Therefore, the petition under Section 482 Cr. P.C. is not maintainable. In reply, she also stated that she is competent to file the complaint against the petitioners being mother in law of petitioner No. 1.</p><p style="text-align: justify;">6. In reply filed by the State, it was denied that Resham Singh was ever taken into custody. The other averments made in the petition are also denied being false, wrong and baseless.</p><p style="text-align: justify;">7. I have heard learned counsel for the parties and carefully gone through the record,</p><p style="text-align: justify;">8. The important legal issue involved in this petition is whether a complaint under Section 494 IPC can be filed on behalf of the husband by any other person?</p><p style="text-align: justify;">9. Chapter XX of the Indian Penal Code relates to the prosecution for offence against the marriage. When any offence is committed under Chapter XX of the Indian Penal Code, the complaint is to be filed as per Section 198 Cr. P.C. Section 198 reads as under ;--</p><p style="text-align: justify;">'198. Prosecution for offences against marriage.-- (1) 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 : Provided that--</p><p style="text-align: justify;">(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;</p><p style="text-align: justify;">(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf;</p><p style="text-align: justify;">(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).</p><p style="text-align: justify;">(2) For the purposes of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code :</p><p style="text-align: justify;">Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his be-half.</p><p style="text-align: justify;">(3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.</p><p style="text-align: justify;">(4) The authorisation referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate, signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.</p><p style="text-align: justify;">(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.</p><p style="text-align: justify;">(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.</p><p style="text-align: justify;">(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.</p><p style="text-align: justify;">10. A perusal of this section shows that under this section, the complaint can be filed only by an 'aggrieved person'. In the Law Lexicon with legal maxims, the exact meaning of word 'aggrieved person' is as under :--</p><p style="text-align: justify;">'Aggrieved person. -- A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject matter supposed to be wrongly decided.'</p><p style="text-align: justify;">11. Further in the Judicial Dictionary, 13th Edition by K.J. Aiyar, the expression 'Aggrieved person' means a person who has got a legal grievance, i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffered some sort of disappointment. In view of this definition, any fanciful or sentimental grievance does not suffice. There must be injuria or a legal grievance.</p><p style="text-align: justify;">12. But under Sub-clause (c) of Section 198 Cr. P.C. there is an exception that when the wife is the aggrieved person, the complaint can be filed 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 person related to her by blood, marriage or adoption but in the case of husband, no other person, except the husband, is, the aggrieved person. The other person may have a sentimental grievance but legally he/ she is not an aggrieved person as has been laid down in G. Narasimhan v. T. V. Chokkappa, AIR 1972 SC 2609 : (1973 Cri LJ 52). In Raxaben v. State of Gujarat, 1992 Cri LJ 2946 (Guj), it has been held that husband is the only aggrieved person who can file a complaint and the Court cannot take cognizance of the offence and if the Court takes the cognizance, the same is without any jurisdiction.</p><p style="text-align: justify;">13. In view of the above discussion, it is clear that the cognizance taken by the learned Judicial Magistrate Ist Class, Nawashshr, is without jurisdiction and when the cognizance is without jurisdiction, then the complaint can be quashed even after the framing of the charge or at any stage. The Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) has also laid down guidelines where High Court can exercise inherent powers under Section 482 Cr. P.C. to prevent the abuse of process of law. However, this should be done sparingly and in rarest of rare cases. The guidelines are as under :</p><p style="text-align: justify;">'1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</p><p style="text-align: justify;">2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</p><p style="text-align: justify;">3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</p><p style="text-align: justify;">4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</p><p style="text-align: justify;">5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused,</p><p style="text-align: justify;">6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</p><p style="text-align: justify;">7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.</p><p style="text-align: justify;">14. As it has been noticed above, learned trial Court has taken the cognizance without any jurisdiction, therefore, continuation of the proceedings against the petitioners will be an abuse of the process of law.</p><p style="text-align: justify;">15. For the reasons mentioned above, the present petition is accepted and the complaint dated 3-4-1998, Annexure P-1 pending before Judicial Magistrate 1st Class, Nawashahr and all subsequent proceedings Including the summoning order dated 7-7-2000, Annexure P-2 are quashed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2004CriLJ2329', 'ratiodecidendi' => '', 'respondent' => 'Joginder Kaur and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '617114' ) ) $title_for_layout = 'Parminder Kaur and ors. Vs. Joginder Kaur and anr. Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 494', (int) 1 => 'Section 482 Cr', (int) 2 => 'Section 494 IPC', (int) 3 => 'the Indian Penal Code', (int) 4 => 'Chapter XX', (int) 5 => 'the Indian Penal Code', (int) 6 => 'Section 198', (int) 7 => 'Chapter XX', (int) 8 => 'the Indian Penal Code', (int) 9 => 'Section 494', (int) 10 => 'Section 495', (int) 11 => 'the Indian Penal Code', (int) 12 => 'Section 497 or Section 498', (int) 13 => 'Section 376', (int) 14 => 'the Indian Penal Code', (int) 15 => 'Section 198 Cr', (int) 16 => 'Section 482', (int) 17 => 'Section 156(1', (int) 18 => 'Section 155(2', (int) 19 => 'Section 155(2' ), 'GPE' => array( (int) 0 => 'Singh', (int) 1 => 'Village Galoti', (int) 2 => 'Tehsil', (int) 3 => 'District Moga', (int) 4 => 'P.C.', (int) 5 => 'P.C.', (int) 6 => 'Gujarat', (int) 7 => 'P.C.' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'P-1' ), 'PERSON' => array( (int) 0 => 'Resham Singh', (int) 1 => 'Kaur', (int) 2 => 'Resham Singh', (int) 3 => 'Resham Singh', (int) 4 => 'Resham Singh', (int) 5 => 'Inder Pal Singh', (int) 6 => 'Joginder Kaur', (int) 7 => 'Resham Singh', (int) 8 => 'Resham Singh', (int) 9 => 'Resham Singh', (int) 10 => 'Resham Singh', (int) 11 => 'K.J. Aiyar', (int) 12 => 'G. Narasimhan v. T. V. Chokkappa', (int) 13 => 'jurisdiction.13', (int) 14 => 'Nawashshr', (int) 15 => 'Haryana v. Ch', (int) 16 => 'Bhajan Lal', (int) 17 => 'Nawashahr' ), 'CARDINAL' => array( (int) 0 => '1', (int) 1 => '1', (int) 2 => '1', (int) 3 => '1989.2', (int) 4 => '1', (int) 5 => '2', (int) 6 => '120', (int) 7 => '1.4', (int) 8 => '1', (int) 9 => '7', (int) 10 => '1', (int) 11 => '1.6', (int) 12 => '1', (int) 13 => '4', (int) 14 => '1', (int) 15 => '1', (int) 16 => '1', (int) 17 => '4', (int) 18 => '3-4-1998' ), 'DATE' => array( (int) 0 => 'the year 1989', (int) 1 => 'about 3 years ago', (int) 2 => '45 of 1860', (int) 3 => 'the age of eighteen years', (int) 4 => '45 of 1860', (int) 5 => 'the age of eighteen years', (int) 6 => '45 of 1860', (int) 7 => 'under fifteen years of age', (int) 8 => 'more than one year', (int) 9 => ''11', (int) 10 => '1973', (int) 11 => '1992', (int) 12 => '1992', (int) 13 => ''1', (int) 14 => '7-7-2000' ), 'ORG' => array( (int) 0 => 'Police Station, Rahon', (int) 1 => 'IPC', (int) 2 => 'fed', (int) 3 => 'State', (int) 4 => 'Court', (int) 5 => 'the Armed Forces of the Union', (int) 6 => 'Court', (int) 7 => 'Court', (int) 8 => 'Court', (int) 9 => 'Court', (int) 10 => 'Commanding Officer', (int) 11 => 'the Law Lexicon', (int) 12 => 'the Judicial Dictionary', (int) 13 => 'Court', (int) 14 => 'AIR 1972', (int) 15 => 'SC', (int) 16 => 'Raxaben', (int) 17 => 'Cri LJ 2946', (int) 18 => 'Court', (int) 19 => 'Court', (int) 20 => 'Judicial Magistrate Ist Class', (int) 21 => 'The Hon'ble Apex Court', (int) 22 => 'State', (int) 23 => 'AIR 1992', (int) 24 => 'High Court', (int) 25 => 'the First Information Report', (int) 26 => 'the First Information Report', (int) 27 => 'Magistrate', (int) 28 => 'FIR', (int) 29 => 'FIR', (int) 30 => 'Magistrate', (int) 31 => 'FIR', (int) 32 => 'Court', (int) 33 => 'Judicial Magistrate' ), 'QUANTITY' => array( (int) 0 => '10-2-1998.3' ), 'WORK_OF_ART' => array( (int) 0 => '13th Edition' ), 'PRODUCT' => array( (int) 0 => 'Cri LJ 52', (int) 1 => 'Cri LJ 527' ), 'LOC' => array( (int) 0 => 'F.I.R.' ) ) $desc = array( 'Judgement' => array( 'id' => '617114', 'acts' => 'Code of Criminal Procedure (CrPC) , 1974 - Sections 198 and 482; <a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 120B, 454 and 494', 'appealno' => 'Criminal Misc. No. 51269-M of 2002', 'appellant' => 'Parminder Kaur and ors.', 'authreffered' => '', 'casename' => 'Parminder Kaur and ors. Vs. Joginder Kaur and anr.', 'casenote' => ' - Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section 110A in the C.P.C., by 2002 Amendment Act, no Letters Patent Appeal is maintainable against judgment/order/decree passed by a Single Judge of a High Court. A right of appeal, even though a vested one, can be taken away by law. It is pertinent to note that Section 100-A introduced by 2002 Amendment of the Code starts with a non obstante clause. The purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. The legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. It is well settled that the definition of judgment in Section 2(9) of C.P.C., is much wider and more liberal, Intermediary or interlocutory judgment fall in the category of orders referred to Clause (a) to (w) of Order 43, Rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. Amended Section 100-A of the Code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High Court, no further appeal shall lie. Even otherwise, the word judgment as defined under Section 2(9) means a statement given by a Judge on the grounds of a decree or order. Thus the contention that against an order passed by a Single Judge in an appeal filed under Section 104 C.P.C., a further appeal lies to a Division Bench cannot be accepted. The newly incorporated Section 100A in clear and specific terms prohibits further appeal against the decree and judgment or order of a Single Judge to a Division Bench notwithstanding anything contained in the Letters Patent. The Letters Patent which provides for further appeal to a Division Bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a Single Judge. It has to be kept in mind that the special statute only provide for an Appeal to the High Court. It has not made any provision for filing appeal to a Division Bench against the judgment or decree or order of a Single Judge. No Letters Patent Appeal shall lie against a judgment/order passed by a Single Judge in an appeal arising out of a proceeding under a Special Act. Sections 100-A [As inserted by Act 22 of 2002] & 104:[Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Writ Appeal Held, A Writ Appeal shall lie against judgment/orders passed by Single Judge in a writ petition filed under Article 226 of the Constitution of India. In a writ application filed under Articles 226 and 227 of Constitution, if any order/judgment/decree is passed in exercise of jurisdiction under Article 226, a writ appeal will lie. But, no writ appeal will lie against a judgment/order/decree passed by a Single Judge in exercising powers of superintendence under Article 227 of the Constitution. - 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. (3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.', 'caseanalysis' => null, 'casesref' => 'State of Haryana v. Ch. Bhajan Lal;', 'citingcases' => '', 'counselplain' => ' R.S. Aulakh, Adv.', 'counseldef' => ' Vikas Bahal, Adv. for Respondent No. 1 and; H.S. Grewal, DAG', 'court' => 'Punjab and Haryana', 'court_type' => 'HC', 'decidedon' => '2004-02-19', 'deposition' => 'Petition allowed', 'favorof' => null, 'findings' => null, 'judge' => ' Nirmal Singh, J.', 'judgement' => 'ORDER<p style="text-align: justify;">Nirmal Singh, J.</p><p style="text-align: justify;">1. The relevant facts for disposal of this petition are that Resham Singh was married to petitioner No. 1, Parminder Kaur. In the year 1989, the police of Police Station, Rahon, took Resham Singh in their custody from his house and had taken him to an unknown place, suspected him to be a terrorist involved in terrorist activities. Petitioner No. 1 alongwith his entire family, relatives and friends made their best efforts to locate and to get Resham Singh released from the police but they could, not succeed and his whereabouts were not known. The police had also not disclosed his arrest, detention or elimination by fake or genuine encounter. He has never met petitioner No. 1 or any other relative or friend. Therefore, Resham Singh is presumed to be dead as he is unheard for the last more than 7 years i.e. since 1989.</p><p style="text-align: justify;">2. Petitioner No. 1, keeping in view her own well being and better comfort of life and independent decision and without any pressure is now living with Inder Pal Singh, petitioner No. 2 at his house in Village Galoti, Tehsil and District Moga since 10-2-1998.</p><p style="text-align: justify;">3. Joginder Kaur, respondent, mother of Resham Singh, filed a complaint under Section 494, 120-B IPC against all the petitioners on the allegation that Resham Singh is still alive and he left the house about 3 years ago after completely fed up from petitioner No. 1.</p><p style="text-align: justify;">4. On notice of motion having been issued, separate replies have been filed by the respondents.</p><p style="text-align: justify;">5. In the reply filed by respondent No. 1, mother of Resham Singh, she has raised a preliminary objection that petition is not maintainable as the summoning order dated 7-7-2002, Annexure P-2, is a revisable order and the petitioners have to approach the learned Sessions Judge instead of filing the present petition. Respondent No. 1 further stated in the reply that the petition can be decided only after recording the evidence. Therefore, the petition under Section 482 Cr. P.C. is not maintainable. In reply, she also stated that she is competent to file the complaint against the petitioners being mother in law of petitioner No. 1.</p><p style="text-align: justify;">6. In reply filed by the State, it was denied that Resham Singh was ever taken into custody. The other averments made in the petition are also denied being false, wrong and baseless.</p><p style="text-align: justify;">7. I have heard learned counsel for the parties and carefully gone through the record,</p><p style="text-align: justify;">8. The important legal issue involved in this petition is whether a complaint under Section 494 IPC can be filed on behalf of the husband by any other person?</p><p style="text-align: justify;">9. Chapter XX of the Indian Penal Code relates to the prosecution for offence against the marriage. When any offence is committed under Chapter XX of the Indian Penal Code, the complaint is to be filed as per Section 198 Cr. P.C. Section 198 reads as under ;--</p><p style="text-align: justify;">'198. Prosecution for offences against marriage.-- (1) 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 : Provided that--</p><p style="text-align: justify;">(a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;</p><p style="text-align: justify;">(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of Sub-section (4) may make a complaint on his behalf;</p><p style="text-align: justify;">(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).</p><p style="text-align: justify;">(2) For the purposes of Sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code :</p><p style="text-align: justify;">Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his be-half.</p><p style="text-align: justify;">(3) When in any case falling under Clause (a) of the proviso to Sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.</p><p style="text-align: justify;">(4) The authorisation referred to in Clause (b) of the proviso to Sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate, signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.</p><p style="text-align: justify;">(5) Any document purporting to be such an authorisation and complying with the provisions of Sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.</p><p style="text-align: justify;">(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.</p><p style="text-align: justify;">(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.</p><p style="text-align: justify;">10. A perusal of this section shows that under this section, the complaint can be filed only by an 'aggrieved person'. In the Law Lexicon with legal maxims, the exact meaning of word 'aggrieved person' is as under :--</p><p style="text-align: justify;">'Aggrieved person. -- A person can be said to be aggrieved, if apart from the general interest such a person, as a member of the public, may have, he has a particular or special interest in the subject matter supposed to be wrongly decided.'</p><p style="text-align: justify;">11. Further in the Judicial Dictionary, 13th Edition by K.J. Aiyar, the expression 'Aggrieved person' means a person who has got a legal grievance, i.e. a person is wrongfully deprived of anything to which he is legally entitled and not merely a person who suffered some sort of disappointment. In view of this definition, any fanciful or sentimental grievance does not suffice. There must be injuria or a legal grievance.</p><p style="text-align: justify;">12. But under Sub-clause (c) of Section 198 Cr. P.C. there is an exception that when the wife is the aggrieved person, the complaint can be filed 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 person related to her by blood, marriage or adoption but in the case of husband, no other person, except the husband, is, the aggrieved person. The other person may have a sentimental grievance but legally he/ she is not an aggrieved person as has been laid down in G. Narasimhan v. T. V. Chokkappa, AIR 1972 SC 2609 : (1973 Cri LJ 52). In Raxaben v. State of Gujarat, 1992 Cri LJ 2946 (Guj), it has been held that husband is the only aggrieved person who can file a complaint and the Court cannot take cognizance of the offence and if the Court takes the cognizance, the same is without any jurisdiction.</p><p style="text-align: justify;">13. In view of the above discussion, it is clear that the cognizance taken by the learned Judicial Magistrate Ist Class, Nawashshr, is without jurisdiction and when the cognizance is without jurisdiction, then the complaint can be quashed even after the framing of the charge or at any stage. The Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 : (1992 Cri LJ 527) has also laid down guidelines where High Court can exercise inherent powers under Section 482 Cr. P.C. to prevent the abuse of process of law. However, this should be done sparingly and in rarest of rare cases. The guidelines are as under :</p><p style="text-align: justify;">'1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.</p><p style="text-align: justify;">2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.</p><p style="text-align: justify;">3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.</p><p style="text-align: justify;">4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.</p><p style="text-align: justify;">5) Where the allegation made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused,</p><p style="text-align: justify;">6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.</p><p style="text-align: justify;">7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.</p><p style="text-align: justify;">14. As it has been noticed above, learned trial Court has taken the cognizance without any jurisdiction, therefore, continuation of the proceedings against the petitioners will be an abuse of the process of law.</p><p style="text-align: justify;">15. For the reasons mentioned above, the present petition is accepted and the complaint dated 3-4-1998, Annexure P-1 pending before Judicial Magistrate 1st Class, Nawashahr and all subsequent proceedings Including the summoning order dated 7-7-2000, Annexure P-2 are quashed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '2004CriLJ2329', 'ratiodecidendi' => '', 'respondent' => 'Joginder Kaur and anr.', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '617114' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 494, Section 482 Cr, Section 494 IPC, the Indian Penal Code, Chapter XX, the Indian Penal Code, Section 198, Chapter XX, the Indian Penal Code, Section 494, Section 495, the Indian Penal Code, Section 497 or Section 498, Section 376, the Indian Penal Code, Section 198 Cr, Section 482, Section 156(1, Section 155(2, Section 155(2
GPE: Singh, Village Galoti, Tehsil, District Moga, P.C., P.C., Gujarat, P.C.
NORP: J.1, P-1
PERSON: Resham Singh, Kaur, Resham Singh, Resham Singh, Resham Singh, Inder Pal Singh, Joginder Kaur, Resham Singh, Resham Singh, Resham Singh, Resham Singh, K.J. Aiyar, G. Narasimhan v. T. V. Chokkappa, jurisdiction.13, Nawashshr, Haryana v. Ch, Bhajan Lal, Nawashahr
CARDINAL: 1, 1, 1, 1989.2, 1, 2, 120, 1.4, 1, 7, 1, 1.6, 1, 4, 1, 1, 1, 4, 3-4-1998
DATE: the year 1989, about 3 years ago, 45 of 1860, the age of eighteen years, 45 of 1860, the age of eighteen years, 45 of 1860, under fifteen years of age, more than one year, '11, 1973, 1992, 1992, '1, 7-7-2000
ORG: Police Station, Rahon, IPC, fed, State, Court, the Armed Forces of the Union, Court, Court, Court, Court, Commanding Officer, the Law Lexicon, the Judicial Dictionary, Court, AIR 1972, SC, Raxaben, Cri LJ 2946, Court, Court, Judicial Magistrate Ist Class, The Hon'ble Apex Court, State, AIR 1992, High Court, the First Information Report, the First Information Report, Magistrate, FIR, FIR, Magistrate, FIR, Court, Judicial Magistrate
QUANTITY: 10-2-1998.3
WORK_OF_ART: 13th Edition
PRODUCT: Cri LJ 52, Cri LJ 527
LOC: F.I.R.