Prinsep and O’Kinealy, JJ.
1. This is a case of adultery and enticing away a married woman with criminal intent under Sections 497 and 498 * of the Penal Code. After hearing the entire evidence for the prosecution, the Magistrate discharged the accused, on the ground that the evidence was not sufficient to justify the framing of a charge. The Sessions Judge, however, on an application made to him, has, under Section 437 of the Code of Criminal Procedure, directed a further enquiry to be held. The Sessions Judge, at the same time, admits that the prosecution has failed to prove the fact of marriage on which this case depends. It is not alleged that any evidence was tendered by the prosecution, and not taken by the Magistrate. But the Sessions Judge seems to think that the wife, whom the complainant, the husband, refused to call as a witness, should have been examined by the Court, and on the supposition that if the case be retried a different complexion might be put on it, he has thought proper to order a retrial by another Magistrate.
2. In dealing with this matter we think we should consider whether we should have granted such an application, if it had been made to us. We have no doubt that it would not have been regarded by us favourably, and that we should certainly not have reopened the ease. We cannot, therefore, but find that in ordering a further enquiry, or rather a retrial, the Judge has not exercised a proper discretion. The order is therefore set aside.
*Enticing or taking away or detaining with a criminal intent a married woman.
[Section 498:–Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. ]