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Criminal Miscellaneous Application No. 1128 of 1978, decided on 7th August, 1979.

--‑‑S. 199‑A read with Penal Code (XLV of 1860), S. 498‑Cognizance of offence ‑‑‑ Husband of enticed woman ailing in hospital and woman's brother having her custody on behalf of her husband First information report lodged by woman's brother under S. 498/34‑Police proceeding on basis of F. I. R. and submitting, challan Court, held, competent to take cognizance of matter.‑[Cog nizance of offence].

--‑-S. 561‑A‑Quashment of proceedings‑Police submitting challan under S. 498, P.P.C., a non‑cognizable offence, without having obtained order for investigation from a Magistrate‑Challan, held, suffered from infirmity and proceedings quashed in circumstances -Penal Code (XLV of 1860), S. 498.

Hussain Bakhsh v. State P L D 1963 Lah. 46 ref.

--‑‑S. 561‑A‑ Quashment of proceedings‑F. I. R. lodged after a delay of 21 days without reasonable explanation not showing ‑even slightest allegation of any attempt on part of petitioner or intention of illicit intercourse with abductee, so to attract provisions of S. 498 or‑366, P. P.C‑Allegations by allegedly enticed woman of severe beat ing by her husband and turning her but of house also levelled in suit for' dissolution‑ of marriage against husband filed a day before filing of F.I.R.‑F.I.R. seemingly lodged‑ to bring back woman to com plainant's household‑Allegation of illicit intercourse or. even of intention of illicit intercourse being absent in F.I.R., ingredients of offence under S. 498 or S. 366, .P.P.C:, held, not made out‑proceedings quashed, circumstances‑Penal Code (XLV of 1860), Ss. 498 & 366.

Syed Madad Ali Shah for Appellant.

Agha Ghulam Ali for the State.

Dates hearing : 4th and 7th August 1979. .

This is an application under section 561‑A, Cr. P. C. filed by three applicants for quashment of proceedings pending against them in the Court of Resident Magistrate, Tando Bagho at Hyderabad under section 498/34, P. P. C. The case started under a Police challan, the F. 1. R. of the case was lodged by one Ghulam Sarwar on 15th June, 1978 wherein he had alleged that his sister Nasim was married to Ramzan and Ramzan and Nasim used to live with the complainant. He further stated that his brother‑in‑law met an accident and was in the hospital at Jamshoro and that on 24th May, 1978 the.tpree accused namely Bux Ali, Haji Ghazi Khan and Mst. Zxbunnisa came to the house of the complainant and had told the complainant that they had gone to the hospital to see complain ant's brother‑in‑law Ramzan and Ramzan had desired them to bring his wife Nasim to him. Since those persons were on visiting terms with the complainant, therefore, complainant allowed ,them to take his sister Nasim with them. But when the complainant went himself to hospital he was informed by his brother‑in‑law Ramzan that 1)e had not sent for his wife Nasim. The complainant, thereafter tried to recover his sister Mst. Nasim from the accused but he did not succeed and thereafter, he lodged the F. I. R. after about 20 days at Cantt. Police Station, Hyderabad.

The learned counsel for the applicant has' submitted that the Court was not competent to take cognizance of an offence under section 498/34, P. P. C. unless the report had been submitted by the police officer on the complaint of the husband of .the woman or by some person who had care of such woman at the time when such offence had taken place. The counsel relied upon section 199‑A of Cr. P. C. which reads as under :‑ '

199‑A. Objection by lawful guardian to complaint by person other than person aggrieved.‑When in any case falling under section 198 or section 199, the person on whose behalf the complaint is sought to be made is under the age of eighteen years or is a lunatic, and the person applying for leave has not been appointed or declared by competent authority to be the guardian of the person of the said minor or lunatic and the Court is satisfied that there is a guardian so appointed or declared,, notice, shall be given to such guardian and the Court shall before .granting the application, give him a reasonable opportunity of objecting to the granting thereof."

However, I .am of the view that the Court was competent to take, cognizance of this matter as it was a Police challan and Police had proceeded on the basis of F. I. R. lodged by the complainant who was evidently the brother of the woman Nasim and who was at the relevant time having the custody of the said Mst. Nasim on behalf, of her husband who was ailing in the hospital. Therefore, this submission of the counsel has no force.

Mr. Madad All Shah next contended that section 498, P. P. C. is a non‑cognizable offence as given in the II Schedule of Cr. P. C. Non- cognizable offence is described under section 4 of Cr. P. C. as "one where police cannot arrest a person without warrant". Counsel points out that according to the definition of section 4(l) of Cr. P. C. cognizable offence is one where Police can arrest a person without a warrant and hence since in an offence under section 498, P. P. C. no arrest can be made without warrant as shown in Schedule II of Cr, P. C., therefore, it is a non‑cogniz able offence. Counsel further points out that according to section 155, Cr. P. C. the police cannot investigate a non‑cognizable offence without the permission of the Magistrate. Counsel made a statement that in this case no permission had been granted by the Court to the Police to investi gate non‑cognizable offence. I enquired from Mr. Ghulam Ali Agha, learned counsel for the State if there was any permission sought by Police for investigation in this case or if the permission was granted by Magistrate as a matter of fact. But Mr. Ghulam Ali Agha was not able to find from the record of the case if such permission had ever been granted. The counsel for the applicants relied upon P L D 1963 Lah. 46, where Mr. Justice Sardar Muhammad 1qbal had held that where the Police have in vestigated a non‑cognizable case without order of Magistrate then the proceedings in Court on the Police Officer's report were illegal and without jurisdiction and the case was quashed.

Since in this case the Police has submitted a challan in respect of non =cognizable case without having obtained the order from the Magistrate of investigating into this case, therefore, there was no valid investigation and the challan submitted by the Police suffers from infirmity and hence the Learned Magistrate was not competent to entertain that challan.

Moreover, learned counsel for the applicants points out that F. 1. R. m this case states that the offence took place on 24th May, 1978 while the F. 1. R. was lodged on 15th June, 1978 after a delay of 21 days without a reasonable explanation of delay which makes the F. I. R. very doubtful and not worthy of being relied upon. Further, submission is that in the said F. I. R. there is not even the slightest allegation of any attempt or intention of illicit intercourse, and therefore, the provisions of either section 498, P. P. C. or section 366, P. P. C. are not attracted. The counsel has also pointed out that the said Mst. Nasim who is alleged to have been enticed away has filed the Family Suit No. 217/1978 for dissolution o marriage against Mohammad Ramzan before the Civil Judge, Hyderabad on 14th June, 1978, A day before the filing of the F. I. R. by Ghulam Sarwar. In the plaint of that suit, a copy of which has been filed, Mst. Nasim had alleged serious allegations against Mohammad Ramzan and had alleged that 4 months before on 14th June, 1978 she had been beaten by her husband Mohammad Ramzan and had been turned out of the house. This being the position, the F. I. R. filed by Ghulam Sarwar seems to have been motivated to bring back Mst. Nasim to their own household. In any case there being no allegation of illicit intercourse or even an allegation or contention of illicit intercourse in the FA. R., the ingredients of offence under section‑ 498 or 366 P. P. C. have not been made out. In these circumstances, further continuation of the proceedings would be an abuse of the process of the Court. The proceedings are therefore, quashed.

Proceedings quashed.

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