1. The petitioner has been convicted for an offence under Section 498, Penal Code, by the First Class Magistrate, Ramanagaram, and sentenced to undergo rigorous imprisonment for a period of six months. On appeal, the conviction and sentence have been confirmed. It is against that judgment, the revision to this Court is preferred by the petitioner.
2. Both the lower Courts have considered the evidence in detail and reached the conclusion. A few salient features relating to the case may be stated in order to test the appreciation of evidence. Shivalingappa, the petitioner, is alleged to have enticed away one Nanjamma, the wife of the complainant, and detained her at Bangalore with intent to have illicit intercourse with her. The complainant, the husband of the said Nanjamma, who is examined as P. W. 8 has sworn to the fact that the accused was frequenting his house and talking to his wife in familiar terms; in consequence thereof he had expressly prohibited him from visiting his house. In the complaint petition, marked Exhibit P-2, a detailed account of the relationship that existed previously between the accused and the complainant’s wife has been recounted and, it is stated that, he (the complainant) straight way suspected the accused soon after he found his wife missing.
3. The principal witness in the case is Nanjamma herself who is examined as p. W. 1. Her account of the incident is clear and convincing. She deposes that the accused was visiting her now and then and chatting rather intimately with her. She further gives a detailed history as to how she was tempted by the offer of jewels and lands which ultimately induced her to leave her husband’s house and follow the accused. She has also spoken to the fact of the accused having removed her in a car to Bangalore and kept in a house near the Mental Hospital for about 20 days. P. W. 2 deposes that the accused and P. W. 1 were living in particular rooms at Bangalore and this fact is fully supported by the evidence of P. W. 6. There is, thus, clear and cogent evidence to show that the accused has enticed away P. W. 1 and that with intent to have illicit intercourse. This is proved beyond doubt by the fact that they lived as man and wife at Bangalore for a number of days.
4. The defence evidence is only directed to prove some ill will between the complainant and the father of the accused. One defence witness is examined to show that the husband and wife were constantly querrelling and P. W. 1 left the house of her own accord after one such quarrel. The evidence is not only inconclusive but also insufficient to rebut the convincing case made out by the prosecution evidence.
5. Sri Deva Doss, the learned Counsel for the accused, contended that the evidence regarding the actual enticing away of P. W. 1 is that of P. W. 1 herself which stands uncorroborated and is insufficient to base a conviction upon. In support of this position, he relied upon a decision in ‘Sachinder Rai v. Emperor, AIR (26) 1939 Pat 536 wherein it has been held that in sexual offences, the failure of the Judge to warn the jury of the danger of convicting the accused on uncorroborated testimony of a girl amounts to misdirection “particularly when the girl has made hopelessly- inconsistent statements and shown herself to be an unscrupulous liar”. The qualification extracted from the decision is very significant and there is nothing on record in this case to show that P. W. 1 is “an unscrupulous liar” or a woman of either a bad character or of a depraved nature. This decision does not appear to support the argument of the learned Counsel.
6. The next contention is that the intention of the accused is not clearly proved. The evidence about the intention has to be gathered from the surrounding circumstances. In ‘Jnanendra Nath v. Kshitish Chandra’, 39 Cal W N 1280, it has been observed thus
“The fact that Janendra and the girl stayed together at night at Surobala’s house is sufficient to show that there was criminal intent within the meaning of the section”.
In the same case, it has also been held that the fact that the girl went away of her own accord is immaterial to constitute an offence under Section 498, Penal Code. I am of opinion that the lower Courts are amply justified in holding that the accused is guilty as it is proved beyond doubt that he enticed away the wife of the complainant who was under her husband’s protection and detained her with intent to have illicit intercourse.
7. The learned Advocate for the accused next urged that the conviction in this case under Section 498, Penal Code, is illegal as the Court had no jurisdiction to enquire into the offence except on the complaint of a specified person as required under Section 199, Criminal P. C. This objection takes us to the history of the complaint. One Shivallngappa presented a complaint petition to the Magistrate on 8-11-1949 for taking action against the accused and his father for offences under Sections 379, 497 and 498, Penal Code, for having enticed away his wile Nanjamma with jewels and money. After recording the sworn statement of the complainant the Magistrate endorsed upon the petition as follows :
“As petition allegations disclose offence cognizable In nature, I refer the petition under Ss. 155 and 156, Criminal P. C., to concerned police to investigate and submit report in respect of all offences alleged. Await report by 24/11.”
The police, after investigation, placed a charge-sheet on 13-1-1950 when process was issued to the accused. Section 199 embodies one of the exceptions to the general rule that a prosecution could be initiated by any person for, it provides that no Court shall take cognizance of an offence under Section 497 or 498, except upon a complaint made by the husband of the woman.
8. It is argued that since the Magistrate referred the petition to the police under Sections 155 and 156, Criminal P. C., he did not take cognizance of the offence upon the complaint by the husband but must be deemed to have taken cognizance of the same on the report of the police when process was issued to the accused. The word ‘Complaint’ is defined in Section 4(1)(h), Criminal P. C., as an allegation made to a Magistrate with a view to his taking action that some person has committed an offence but it does not include the report of a police officer. The requirements of a valid complaint are therefore that (1) the facts alleged should ‘prima facie’ constitute an offence and (2) the facts should be brought to the notice of the Magistrate with a view to his taking action ‘Queen Empress v. Sham Lall’, Vide 14 Gal 707 (F. B.) It is not doubted that the allegations in the complaint petition presented to the Court disclose an offence and, in fact, in the complaint itself a specific mention is made that one of the offences alleged to have been committed is punishable under Section 498. The Magistrate may take cognizance of an offence in either of the three specified cases mentioned in Section 190 of the Code. It is true that the expression ‘to take cognizance’ has not been defined anywhere in the Code; but the expression ‘taking cognizance’ is interpreted to mean ‘taking legal notice of the matter and the Magistrate applying his mind to the suspected commission of the offence”. The question raised for consideration is whether the Magistrate by referring the petition before him to the police has failed to take cognisance of the complaint.
9. Chapter XIV, Criminal P. C., deals with information to the police and their powers to investigate. Section 155 relates to the inform all on in non-cognizable cases and prohibits the police officer from investigating into a non-cognizable case without the orders of a Magistrate. Section 156 deals with investigation into cognizable cases and Clause (3) enables the Magistrate, empowered under Section 190, to order such investigation. The complaint in the present case comprises allegations constituting both cognizable and non-cognizable offences and the Magistrate has evidently referred the petition for investigation as it disclosed a cognizable offence also. In such a case, the reference to the police to do what independently of the Magistrates they have the power to do but which they might not have done i.e. to investigate a cognizable offence, has only reference to a stage previous to that of taking cognizance of the offence. On the other hand a Magistrate may take cognizance under Section 190 (1) (a), Criminal P. C. of an offence upon receiving complaint of facts which constituted an offence; Chapter XVI of the Code provides the procedure regarding complaints to Magistrate. Under Section 200 of the Code, a Magistrate taking cognizance of an offence, shall at once examine the complainant on oath, and the terms of Section 200 imply that the Magistrate should have taken cognizance of an offence before he proceeds to examine the complainant on oath. In a recent decision of the Supreme Court ‘R. R. Chari v. State of Uttar Pradesh, Kama C. J. referred with the approval to the statement of Das Gupta J. in ‘Supdt. & Remembrancer of Legal Affairs West Bengal v. Abani Kumar Banerjee’, thus.
"When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter (Chapter XVI) but for taking action of some other kind e.g. ordering investigation under Section 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence." Das Gupta J. observes in the Calcutta case following the decisions in 'Dr. Robiul Hossain v. K. K. Ram', 82 Cal L Jour 222 and 'Pulin Behari Ghosh v. The King', 53 Cal W N 653 that "When a petition of complaint is field before a Magistrate, the Magistrate may take cognizance under Section 190(1)(a), Criminal P. C., and proceed to examine the complainant under Section 200 and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of Section 156(3), Criminal P. C."
It is undisputed that the Magistrate is not bound to take cognizance of an offence merely because a petition of complaint is filed before him; he may straightway dismiss the complaint or send it to the police for investigation. But when he applies his mind and proceeds to examine the complainant under Section 200, Criminal P.C., he is deemed to have taken cognizance of the complaint, in such a case he must proceed further as indicated in the subsequent sections of Chapter XVI. In the present case, the fact that the Magistrate has taken judicial notice of, and applied his mind to, the contents of the complaint, is reflected in the reason he has recorded for making a reference to the police to the effect that the complaint discloses an offence of a cognizable nature. Before making the reference he has taken the sworn statement of the complainant which must necessarily have been done under Section 200, Criminal P.O. The action under Section 200 implies that the Magistrate had taken cognizance of the complaint. The procedure thus adopted by the Magistrate in having referred the matter to the police for investigation after recording the sworn statement should in effect be taken to be under Section 202, Criminal P. C., and not under, Sections 155 and 156 which reference is undoubtedly irregular. The complaint which remained on the file and formed the basis for initiating the proceedings satisfies the requirements of Section 199, Criminal P.C. In view of the circumstances of this case under which the Magistrate has examined the-complaint, I feel no doubt that he has taken cognizance of the complaint and initiated the proceedings on the complaint of the husband himself. The point, therefore, raised by the learned Advocate is without substance.
10. There remains the question of sentence. The object of Section 498, Penal Code, is not so much to protect the husband as to inflict punishment on those who interfere with the sacred relation on marriage vide In re, 'Rathana Padayachi', '17 Cr. L J 363 at p 364 (Mad.) In the present case, there are no extenuating circumstances to consider the rigorous imprisonment for six months as being severe or excessive. 11. In the result, I see no reason to interfere with the conviction and sentence passed by the learned trial Magistrate and upheld by the learned Sessions Judge. The revision petition is accordingly dismissed. The petitioner will surrender to ball and undergo the sentence. 12. Revision dismissed.