P L D 1962 (W (PLP)

"Charge or information, name of offence and circumstances connected with it in concise detail and under what section of law charged." In this particular column there is no, information as to the nature of the offence charged or of the circumstances connected with it. All that appears in this column are the figures 380, 498 and 411.

2. It is further urged by the learned advocate appearing on behalf of the applicants that the provisions of section 190 (1) (b) of the Code of Criminal Procedure have also not been complied with in this case. This subsection required that a District Magis trate or a Sub‑divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence upon a report in writing of such facts made by any police officer. Obviously, the report referred to in this subsection is the report mentioned previously in section 173 (1) (a) and the argument is that if this report as described in section 173 (1) (a) is not before a Magistrate then he cannot take valid and legal cognizance of the case referred to therein.

3. In support of these contentions the learned advocate for the applicants has referred me to a number of reported cases, the first of which is In re. Shivlingappa Bhagappa (A I R 1930 Bom. 372). The facts of that case are fairly similar to the facts of the present case, and it was also contended in that case on behalf of the petitioner, firstly: that no report had been made to the Court as required by section 173, Cr. P. C., and, secondly : that if the charge‑sheet in the case is to be regarded as report, it is not a valid report under section 190 (1) (b), because it fails to set out the statement of facts which would constitute the offence with which the petitioner is being charged. It was found as a fact in the Bombay case that the police in filling up column 7 of the charge- sheet only mentioned the sections of the I. P. C. but gave no details or circumstances or description. This column is headed as under :‑ "The charge or information, name of offence and circum stances connected with it in concise detail and under what section of the Penal Code charged." Their Lordships went on to state :‑ "Plainly, therefore, the provisions of section 173 of the Code, which require that the nature of the information should be stated, and those of section 190 (1)(b), which require that the facts con stituting the offences should be stated, have been disregarded." In view of this their Lordships quashed the proceedings resulting from this defective charge‑sheet. A later case referred to by the learned advocate for the applicants is Aghor Ch. Dev Barma v. Government of Tripura (A I R 1952 Trip. 14). In that case it was held that where a Magistrate took cognizance on the charge‑sheet submitted by a police officer which merely referred to the first information report but did not contain the statement of facts constituting the offences nor did It conform to the provisions of section 173 (1) (a), Cr. P. C. that the taking cognizance of the case on the basis of such a defective charge‑sheet was illegal the defect was not curable under section 537 ; and the proceedings should be quashed. In a still more recent case referred to, Badamilal Ramdhan and others v. The State (A I R 1955 Bhop. 20), it was held that where the report of the police officer in the case failed to comply with either the provisions of section 173 (1) (a) or section 190 (1) (6), Cr. P. C., the cognizance taken by the Magistrate on such report was illegal and even ultra vires. The legal defect was such as could not be cured by section 537, Cr. P. C.

4. In view of the imperative provisions of section 173 (1) (a) of the Code of Criminal Procedure I am of the opinion that failure to comply with this mandatory provision renders the cognizance taken in this particular case by the learned Magistrate illegal and invalid, and on this ground alone the proceed. In the Court of the learned Magistrate must be quashed.

5. There is, however, a second point urged by the learned advocate on behalf of the accused and that is that inasmuch as the charge‑sheet filed by the police contains the charge under section 498, P. P. C., and there is on record no complaint by the husband of the woman concerned, by reason of section 199, Cr. P. C. no Court can take cognizance of this offence. In support of this argument the learned advocate for the defence relied upon a case reported in Emperor v. Imankhan Rasulkhan (13 Cr. L J 287). In that case the accused was charged in the first instance with offences under sections 366 and 379 of the Penal Code and later after the complainant, who was the husband of the woman, had been examined as a witness, as a result of certain statements made by him in his deposition amounting to an offence under section 498 a fresh charge under section 498 was added against the accused. The trial Court acquitted the accused on charges under sections 366 and 379 but convicted him under section

498. It was held that the conviction was bad and ought to be set aside, because the Court could not take cognizance of the offence under section 498, as there was no complaint by the husband and that the statement of the husband as a witness could not be said to be a complaint within the meaning of clause (h) of section 4 of the Criminal Procedure Code.

6. Mr. Shamsuddin appearing on behalf of the A. A. G. concedes the first point argued by the learned advocate for the applicants but with regard to his second contention concerning absence of a formal complaint by the husband under section 199 Cr. P. C. Mr. Shamsuddin does not accept this second argument. He contends that inasmuch as the charge‑sheet discloses two cognizable offences under sections 380 and 411, P. P. C. and one non -cognizable offence under section 498 the police were justified under the provisions of section 156 (2), Cr. P. C. in sending up one charge against the three applicants containing all three sections.

7. I have considered the argument of the learned advocates and while I accept their contentions with regard to the first point urged and have already held above that the proceedings on that G score alone must be quashed in the Court below ; with regard to the second point I am in agreement with the contention of Mr. Shamsuddin. This second point is of purely academic importance because the learned advocate for the applicants having succeeded on the first point, does not press the second.

8. In the result this application is allowed and the proceed ings, arising out of the charge‑sheet in this case together with the charge‑sheet now pending in the Court of the Sub‑Judge and F. C. M. Kotri, are quashed. K. B. A. Application allowed.