This is a reference by the learned 1st Additional Sessions Judge, Hyderabad recommending that a complaint filed by one Saeed Khan against the respondents 1 to 6 under section 497 of the P. P. C.
Read with sections 34 and 109 and now pending in the Court of the 2nd Extra Joint Civil Judge and 1st Class Magistrate, be quashed. The facts which have led up to the reference are that the respondent No. 7 one Saeed Khan filed a complaint in the Court of the City and S. D. M., Hyderabad on the 29th August 1970, alleging that respondent No. 1 has developed intimacy with one Mst.
Asghari wife of Jamil Ahmad. The complaint stated that the lady was the sister of the wife of the complainant and that she was under his care and custody on behalf of her husband and that he had caught her committing adultery with respondent No. I while respondents 2 to 6 were abettors of the offence. The complaint was filed in the Court of the City and S. D. M., Hyderabad and was forwarded to the Mukhtiar kar and 1st Class Magistrate for disposal according to law. The latter Magistrate recorded the statement of the complainant under section 200, Cr. P. C, and ordered a preliminary enquiry. For some reason that does not appear on the record the matter was then transferred to the 2nd Extra Joint Civil Judge arid' 1st Class Magistrate but some witnesses would appear to have been examined by the Mukhtiar kar and Ist Class Magistrate and ors, more witness being examined by the 2nd Extra Joint Civil Judge arid 1st Class Magistrate, Hyderabad on the 14th of October 1971, he passed an order stating his view that from the perusal of the complaint and the statement of the witnesses the offence, if any, would fall under section 497/34/109, P. P. C. And he, therefore, issued process against the accused persons.
2. The reference has been made upon the ground that no complaint of an offence under section 497 could be made except by the husband of the woman in question subject to the Exceptions provided in section 1-99 of the Cr.P.C. Which creates the bar. Now, section 199 reads in the following terms: "No Court shall take cognizance of an offence under section 497 or section 498 of the Pakistan Penal Coda, except upon a complaint made by the husband of the woman, or, in his absence (made with the leave of the Court), by some person who had care of such woman on his behalf at the time when such offence was committed: Provided that, where such husband is under the age of eighteen years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court make a, complaint on his behalf: Provided further that where such husband is serving in any of (the Armed Forces of Pakistan) 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, and where for any reason no complaint has been made by a person having care of the woman as aforesaid, some other person authorised by the husband in accordance with the provisions of subsection (1) of section 199-B may, with the leave of the Court, make a complaint on his behalf."
Admittedly in this case neither of the two provisos applies and therefore prima facie the complaint was not one in which the Court could take cognizance but before me on behalf of respondent No. 8, that is the complainant, it is claimed that the case falls under the Exception provided in the main part of the section itself, that is to say, that the woman was in the care of the complainant and that the complaint was made with the leave of the Court. Reliance is placed on in this connection on the case reported in AIR 1928 Sind 159 where it was held that the leave of the Court need not be express and if some person other than the husband had the care of the woman at the relevant time and if although he made no formal order the learned Judge had the fact in mind and had satisfied himself that leave ought to be granted and never--theless proceeded with the matter it should be inferred that there was such leave as the section contemplates. Now in that case there was no question but that the woman was temporarily in the care of the complainant in that case inasmuch as the husband had left the house for a visit to some other town and in the meantime his wife had been enticed; his nephew, the complainant having ascertained who had taken away the woman instead of waiting for his uncle's return filed a complaint. The Magistrate held a preliminary enquiry and it appears that from the deposition of the complainant that he satisfied himself as to what position the complainant occupied in the house of his uncle and therefore issued process. On the basis of these facts, the learned Judges in that case came to the conclusion that she was under the care of the complainant and that the Magistrate had, by implication, granted leave. Now this is case of the former Court of the Judicial Commissioner of Sind and, therefore, I am not technically bound by the decision in that case. Never the less as a successor Court the present High Court of Sind would treat the judgments of the Sind Judicial Commissioner's Court with respect and would not lightly depart from precedents of that Court unless there were good reasons on the contrary.
3. After having given my most anxious consideration to this case I regret that, despite the respect that I have for the Judges of that Court, I am unable to agree. The prohibition in section 191 is against the taking of the cognizance and the first act that the Magistrate does after taking cognizance is under section 200 to examine the complainant. He then either issues process or postpones the issuing of process until after he holds a preliminary enquiry. Whatever the learned Magistrate may then find in the preliminary enquiry cannot affect the question because leave must be granted before cognizance is taken and in the present case as indeed in the Sind case to which I have made reference cognizance was, therefore, taken before any acts were done from which leave could be inferred.
4. The position is even more complicated by the fact that in the present case the cognizance was taken by the Mukhtiar kar and 1st Class Magistrate, Hyderabad who partly conducted the preliminary enquiry which was finalized by the 2nd Extra Joint Civil Judge and 1st Class Magistrate, Hyderabad. Even if the facts were otherwise to justify it and I was to follow the Sind case, the question would be which was the Magistrate who granted leave to the complainant in this case. If it was the 2nd Extra Joint Civil Judge and Ist Class Magistrate it was not he who took cognizance and if it was the former Magistrate then it was not he who examined all the witnesses.
5. Curiously enough, however, the complaint itself begins by stating that it "is submitted with the leave of this Honour-able Court under section 199, Criminal Procedure Code". On its plain terms this would mean that leave had already been granted but such of course is not the case. Making some allowance for inaccurate language this would amount, at most, to a t prayer for such leave and in that case I would have expected the learned Magistrate first to enquire into those circumstances which would justify the grant of the leave and then to take cognizance. Admittedly that had not happened, in the present case.
6. There are, however, even other difficulties in the way of the com--plainant as has been pointed out before me by the learned counsel for respondents 1 to 6. As early as 1967 the lady had filed a suit for divorce which was decreed in 1968 and there is a certified copy of a judgment of this Court on the record of the Court below which shows that after the divorce was granted the case had come up even to this Court. Complaint was not filed until 1970. Whatever the merits of the divorce suit may have' been, it is clear therefore that in the year 1970 if the lady was living with her brother- in-law it was not because she had been entrusted to his care by the respondent No. 7, that is to say, her husband or her former husband as the case may be. Of course if we take into account the fact of divorce then there can be no question of an offence at all but, even if that) be not taken into account, she was clearly not in the custody of the complainant on behalf of her husband. Besides as I have already stated the leave contemplated by section 199 must be taken before cognizance is, taken and not after.
7. From whatever point of view, therefore, this case is looked at, the complaint was barred by section' 199 and; therefore, accepting the Reference made by the Additional Sessions Judge, I quash the proceedings against respondents I to 6 tinder section 497/34/109, P. P. C. Now pending in the Court of 2nd Extra-Joint Civil Judge and 1st Class Magistrate.
S. A. H.
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