P L D 1965 Azad J & K 38 (PLP)

MUHAMMAD SHARIF, J.‑A challan was put up against the accused‑respondents by the police in the Court of Mr. G. D. Ashai, A. D. M., Muzaffarabad for offences under sections 497/498 and 317, A. P. C. The learned A. D. M. by his order dated 29‑10‑62, declined to take cognizance of offences under sections 497/498, A. P. C. because there was no formal complaint by the husband and, in the opinion of the learned Magistrate, section 199, Cr. P. C., was a bar to his taking cognizance of these offences under section 190, Cr. P. C. The learned Magistrate repelled the contention of the P. D. S. P. that the offences under sections 497/498, A. P. C. having been made cognizable in Azad Kashmir, there was no necessity of a complaint by the husband. In this case the brother of the husband had lodged a report with the police and after investigations a challan had been put up. The learned Magistrate refused to take cognizance without passing an order either of acquittal or conviction. The Government has now come up in revision against the said order. The Criminal Law Amendment Act of 1948, which is pertinent to this case is reproduced below: "(1) This Act may be called the Criminal Law Amendment Act of 1948. (2) It shall extend to the whole of the territories under the Azad Jammu & Kashmir Government. (3) This Act shall be deemed to amend the provisions of the Azad Kashmir Penal Code and Criminal Procedure Code to the extent to which there is anything repugnant or contrary to the provisions of this Act. (4) In cases under sections 497, 498 of the Azad Kashmir Penal Code the wife shall be punishable as an abettor. (5) All offences under sections 493, 494, 495, 496, 497 and 498 of the Azad Kashmir Penal Code shall be cognisable, bailable and compoundable. (6) It shall not be necessary that the Courts shall take cognizance of offences under sections 493, 494, 495, 496, 497 and 498 of the Azad Kashmir Penal Code on the complaint of the aggrieved person only. (7) All offences under sections 493, 494, 495, 496., 497 and 498 of the Azad Kashmir Penal Code may be compounded by the person aggrieved and by no one else." The Amendment Act of 1948, amends the provisions of the Azad Kashmir Penal Code and Criminal Procedure Code to the extent to which they are repugnant or contrary to the provisions of this Act. By virtue of section 5 of the Amendment Act all offences under sections 497/498, A. P. C., were made cognizable, bailable and compoundable. By section 7 of the Criminal Law Amendment Act of 1950, offences under sections 497/498, A. P. C. of the Azad Kashmir Penal Code were declared to be non‑bailable subject to the provisions of sections 497/498 of the Criminal Pro cedure Code. So at present offences under sections 497/498, A. P. C. are not only cognizable but non‑bailable also. Section 6 of the Amendment Act of 1948, clearly provides that it shall not be necessary that the Court shall take cognizance of offences under sections 493 to 498, A. P. C. of the Azad Kashmir Penal Code on the complaint of the aggrieved person only. Section 199, Cr. P. C. provides that no Court shall take cognizance of an offence under section 497 or 498 of the Penal Code, 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. Section 6 of the Amendment Act of 1948, shall be deemed to have amended the provisions of section 199, Cr. P. C., as is laid down in section 3 of the Amendment Act. Having read the Amendment Act of 1948, the learned counsel for the accused‑respondents frankly conceded that he could not support the order of the learned Magistrate which is the subject of revision. The challan was put up not only for offences under sections 497 and 498 but also for an offence under section 317, A. P. C. The offence under section 317, A. P. C. is cognizable and there is no provision in the Criminal Procedure Code, requiring a complaint by any particular person for such an offence. We fail to understand why the learned Magistrate refused to take cognizance of the offence under section 317, A. P. C. even if he thought that he was debarred from taking cognizance of offences under sections 497 and 498, A. P. C., in view of the provisions of section 199, Cr. P. C. If he could not take cognizance of offences under sections 497 and 498, A. P. C. i.e. should have proceeded with the case under section 317, A. P. C. The learned Magistrate was wrong in refusing to take cognizance of offences under sections 497 and 498, A. P. C. Section 6 of the Amendment Act was quite clear on the subject and it appears that the police prosecutor and the learned Magistrate had not the Criminal Law Amendment Act of 1948 before them when the order under revision was passed. The revision petition is accepted and the order of the learned Magistrate dated 29‑10‑62, is set aside. The case is remanded back to the trial Court with the direction to take cognizance in the case. K. B. A. Petition accepted.