HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. Mahavir Singh Tyagi, Sr. Advocate assisted by Mr. Chandra Prakash

202 Cr.P.C., the learned trial court summoned the respondent no.2 under Sections 389, 493, 494 and 497 IPC and respondent no.3 under Sections 493 and 494 IPC vide order dated 20.03.2015. Against this summoning order, respondent 1 nos.2 and 3 preferred a revision in the court of learned Additional Sessions Judge who by the impugned order set aside the summoning order on the grounds that the present applicant/complainant has no locus to file the complaint as per the provisions enumerated under Section 198 Cr.P.C. It is against this order, the applicant is before this Hon’ble Court.

3. The learned counsel for the applicant submitted that the learned Revisional Court traversed beyond its jurisdiction while passing the impugned order and did not give any finding regarding the cognizance taken under Section 389 IPC against the respondent no.2 and set aside the summoning order dated 20.03.2015 as a whole.

4. The learned counsel for the applicant further submits that the present applicant/complainant is the father of respondent no.3 and is entitled to file a complaint under Section 198 (1)(c) Cr.P.C. and therefore, the impugned order is liable to be set aside.

5. Per contra, the learned State Counsel supported the impugned order stating that the learned Revisional Court has rightly set aside the summoning order passed by learned trial court as the present applicant/complainant has no locus to file the complaint as per the bar enumerated under Section 198 Cr.P.C.

6. Having heard the learned counsel for the parties and after perusal of material available on record and after perusing the impugned revisional order and bare provision of 2 Section 198 Cr.P.C. which for convenience is herein quoted below:- ”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— (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; (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; (c) where the person aggrieved by an offence punishable under section [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]. (2) For the purpose 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; 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 behalf.”

7. After perusal of the record, it transpires that respondent no.3 is a female and has been surprisingly summoned under Section 493 of IPC, which only punishes a man and she has been also summoned under Section 494 IPC which provides culpability to a person who marries in the life time of his wife or husband. As it is an admitted case that respondent no.3 was never married before, therefore, she could not have been guilty under Section 494 Cr.P.C. 3 Therefore, this Court is of the considered opinion that the revisional court has rightly set aside the summoning order passed by learned trial court against respondent no.3.

8. As far as summons to respondent no.2 concerned, they are based upon complaint filed by the applicant which as a matter of law and after bare perusal of Section 198 Cr.P.C. was barred by law, as Section 198(2) Cr.P.C. clearly enumerates that a complaint under Section 497 IPC can only be filed by the husband. The complainant in the present case is the father of respondent no.3 and not her husband. Moreover, Section 198 (1)(c) Cr.P.C. clearly enumerates that a complaint under Section 494 IPC can only be filed by the wife or on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s, brother or sister, with the leave of the Court, by any other person related to her by blood, marriage or adoption. In this particular case, the person aggrieved would have been the first wife of respondent no.2 and the applicant is admittedly not her father. Therefore, the revisional court rightly set aside the summoning order passed by the learned trial court on the ground of want of locus. Moreover, Section 198(1) Cr.P.C. also bars any other person except the person aggrieved to file a complaint for an offence under Chapter XX of the Indian Penal Code, therefore, the summons under Section 493 IPC was also rightly set aside.

9. As far as, the summons under Section 389 IPC to respondent no.2 is concerned, this Court after going through the statements of the witnesses and the complainant recorded 4 under Sections 200 and 202 Cr.P.C. is of the opinion that there exists a prima facie case the truth of which can only be found out after a proper trial. The judgment and order impugned passed by learned Additional Session Judge, Laksar is quashed to that extent, therefore, the trial court is permitted to continue the proceedings under the aforesaid section 389 IPC as per the law.

9. Accordingly, the present C-482 application is partly allowed. Ravi (Pankaj Purohit, J.) 19.09.2025 5