A. B. MURGOD, J. ( 1 ) THE REVISION PETITIONERS HAVE CHALLENGED THE ORDER DATED 27-2-1989 PASSED BY THE LEARNED JMFC, HOSPET, IN CC. NO. 1071 of 1989 ORDERING PROCESS AND SUMMONS TO THEM. ( 2 ) THE RESPONDENT SMT. RENUKA, FILED A PRIVATE COMPLAINT ON 16-1-1989 BEFORE THE LEARNED ADDITIONAL MUNSIFF AND JMFC, hospet. ON THAT DATE, THE LEARNED MAGISTRATE ORDERED REGISTERING the CASE AND REFERRING IT TO POLICE SI, KAMALAPUR, UNDER SECTION 156 (3) CR. P. C. ON 27-2-1989 THE PSI, FILED A REPORT AFTER investigating THE CASE REFERRED TO HIM AND AFTER PERUSING THE report WITH CONNECTED MATERIAL AND STATEMENTS, THE LEARNED magistrate DIRECTED REGISTERING THE CASE AGAINST THE PETITIONERS and ISSUING SUMMONS TO THEM. THIS ORDER IS UNDER CHALLENGE before THIS COURT. ( 3 ) THE MAIN GROUND OF ATTACK IS THAT THE LEARNED MAGISTRATE COULD NOT HAVE TAKEN COGNIZANCE ON THE POLICE REPORT AS THE SAME is PROHIBITED UNDER SECTION 198 CR. P. C. SECTION 198 (1) READS AS under:"198 (1) NO COURT SHALL TAKE COGNIZANCE OF AN OFFENCE punishable UNDER CHAPTER XX OF THE INDIAN PENAL CODE 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 THE COMMANDING OFFICER AS precluding 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. ( 4 ) MERE PERUSAL OF SUB-SECTION (1) SHOWS THAT IT PROHIBITS A COURT FROM TAKING COGNIZANCE OF AN OFFENCE PUNISHABLE UNDER chapter XX IPC, EXCEPT UPON A COMPLAINT FILED BY THE AGGRIEVED person. THE OFFENCE UNDER SECTION 494 IPC IS COVERED IN CHAPTER xx IPC. IN THE CASE ON HAND, THE COMPLAINT HAS BEEN FILED BY THE respondent WIFE. ( 4 ) MERE PERUSAL OF SUB-SECTION (1) SHOWS THAT IT PROHIBITS A COURT FROM TAKING COGNIZANCE OF AN OFFENCE PUNISHABLE UNDER chapter XX IPC, EXCEPT UPON A COMPLAINT FILED BY THE AGGRIEVED person. THE OFFENCE UNDER SECTION 494 IPC IS COVERED IN CHAPTER xx IPC. IN THE CASE ON HAND, THE COMPLAINT HAS BEEN FILED BY THE respondent WIFE. THAT COMPLAINT AS DEFINED UNDER SECTION 2 (D) cr. P. C. WAS FILED BEFORE THE LEARNED MAGISTRATE. THE LEARNED magistrate HAS TO PROCEED AS PER CHAPTER XV CR. P. C. THEREFORE the LEARNED MAGISTRATE HAS TO TAKE COGNIZANCE, RECORD SWORN statement OF THE COMPLAINANT AND THE WITNESSES AND THEN proceed TO ISSUE PROCESS IN CASE HE FINDS MATERIAL FOR THE SAME. THAT HAS NOT BEEN DONE IN THE CASE ON HAND. THE LEARNED magistrate HAS PROCEEDED TO REFER THE COMPLAINT TO THE POLICE FOR investigation AND REPORT UNDER SECTION 156 (3) CR. P. C. HE COULD have DONE SO IN CASE OF COGNIZABLE OFFENCE. THEREFORE HIS referring THE COMPLAINT TO THE POLICE IS ILLEGAL. 5. PROVISIONS OF SECTION 198 (1) CR. P. C. REFERRED TO ABOVE MAKE it CLEAR THAT IT IS OBLIGATORY ON THE PART OF THE LEARNED MAGISTRATE is PROHIBITED UNDER SECTION 198 CR. P. C. SECTION 198 (1) READS AS under:"198 (1) NO COURT SHALL TAKE COGNIZANCE OF AN OFFENCE punishable UNDER CHAPTER XX OF THE INDIAN PENAL CODE 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 THE COMMANDING OFFICER AS precluding 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. 4. 4. MERE PERUSAL OF SUB-SECTION (1) SHOWS THAT IT PROHIBITS A court FROM TAKING COGNIZANCE OF AN OFFENCE PUNISHABLE UNDER chapter XX IPC, EXCEPT UPON A COMPLAINT FILED BY THE AGGRIEVED person. THE OFFENCE UNDER SECTION 494 IPC IS COVERED IN CHAPTER xx IPC. IN THE CASE ON HAND, THE COMPLAINT HAS BEEN FILED BY THE respondent WIFE. THAT COMPLAINT AS DEFINED UNDER SECTION 2 (D) cr. P. C. WAS FILED BEFORE THE LEARNED MAGISTRATE. THE LEARNED magistrate HAS TO PROCEED AS PER CHAPTER XV CR. P. C. THEREFORE the LEARNED MAGISTRATE HAS TO TAKE COGNIZANCE, RECORD SWORN statement OF THE COMPLAINANT AND THE WITNESSES AND THEN proceed TO ISSUE PROCESS IN CASE HE FINDS MATERIAL FOR THE SAME. THAT HAS NOT BEEN DONE IN THE CASE ON HAND. THE LEARNED magistrate HAS PROCEEDED TO REFER THE COMPLAINT TO THE POLICE FOR investigation AND REPORT UNDER SECTION 156 (3) CR. P. C, HE COULD have DONE SO IN CASE OF COGNIZABLE OFFENCE. THEREFORE HIS referring THE COMPLAINT TO THE POLICE IS ILLEGAL. ( 5 ) PROVISIONS OF SECTION 198 (1) CR. P. C. REFERRED TO ABOVE MAKEIT CLEAR THAT IT IS OBLIGATORY ON THE PART OF THE LEARNED MAGISTRATE to TAKE COGNIZANCE IN RESPECT OF AN OFFENCE COVERED UNDER chapter XX OF THE IPC ONLY ON A COMPLAINT WHICH DOES NOT include THE CHARGE-SHEET BY THE POLICE. THEREFORE, THE ORDER issuing PROCESS AGAINST THE PETITIONERS IS BAD IN LAW, AND NEEDS TO BE SET ASIDE. ( 6 ) REVISION PETITION IS ALLOWED. THE IMPUGNED ORDER DIRECTING THE PROCESS AND SUMMONS AGAINST THE PETITIONERS IS SET ASIDE. THE LEARNED MAGISTRATE IS DIRECTED TO DEAL WITH THE COMPLAINANT of THE RESPONDENT UNDER CHAPTER XV CR. P. C. RECORDS CALLED FOR from THE LEARNED MAGISTRATE SHALL BE REMITTED TO HIM AT THE earliest. THE LEARNED MAGISTRATE SHALL CALL THE CASE ON 10-4-1995. --- *** --- .