Mool Chand vs Hari Shanker

K. Narayan, J.—The applicants have approached this Court against an order dated 27.4.1994 rendered by Chief Judicial Magistrate, Oral District Jalaun in case No. 2740 of 1993.

It appears that one Hart Shanker has brought some complaint u/s 498A, I.P.C. and certain other consequential reliefs. Hart Shanker is said to be the uncle of opposite party No. 2 Smt. Yashoda, the person who might be said to be the aggrieved one. The argument of the learned Counsel for the applicant is that the uncle cannot bring a complaint for an alleged offence u/s 498A, I.P.C. in view of Section 198A, Code of Criminal Procedure and, therefore, the court cannot take cognizance for a proper appreciation of the argument advanced by the learned Counsel for the applicants. Section 198A, Code of Criminal Procedure may be reproduced below:

No Court shall take cognizance of an offence punishable u/s 498A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father's or mother's brother's sister or with the leave of the Court by any other person related to her by blood, marriage or adoption.

It need hardly be said that an uncle is always father's brother or mother's brother. As to whether he can really bring a complaint or not and whether these mentioned earlier, that is, mother's brother and father's brother would exclude the uncles or not are questions of fact which may have to be gone into by the trial Court and it cannot be said that the complaint brought is per se not maintainable. When facts have to be gone into naturally the applicants should have first approached the court concerned by appearing in person on summons or other process of law and obtain decision and thereafter if need be approach the higher courts. These things can be considered only in appropriate proceedings, by the trial court itself. However, at the same time it seems reasonable that the applicants should not be unnecessarily harassed since the issue of notice etc. is bound to take unnecessary time, it is considered proper that the modification may be made in the order without hearing the Respondents, that is, opposite party No. 2.

This application is accordingly disposed of with direction that the objections relating to bar u/s 198A, Code of Criminal Procedure may be raised before the Magistrate and if an objection is raised, it shall be disposed of as a preliminary one and till disposal of the objection, they shall be allowed bail on submission of personal bond only and may also be permitted to be represented by the counsel with the exemption of personal appearance if they so pray, on condition which the Magistrate may fix.

With the above observation, this application is disposed of.