John Beaumont, Kt., C.J.
1. This is an application in revision against a conviction of the accused by the Presidency Magistrate, 3rd Additional Court, under Section 498 of the Indian Penal Code. That section, so far as material, provides that 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, with intent that she may have illicit intercourse with any person, shall be punished.
2. Now, the evidence here is that the complainant and his wife had been married for some years, and that some six months before, the wife had left him the accused had been boarding with them. There is no evidence that the accused and the wife were on particularly friendly terms. The wife left her husband, and the accused left the house with her, having, according to her daughter, previously asked' the children to go out of the house by the back door, though I do not think that is a suspicious circumstance. The accused and the wife are now living together. There is no evidence that the accused enticed the wife away, and the question is whether he took away the wife within the meaning of Section 498. It is not very easy to say what 'taking sway' means, but I think there must be some influence, physical or moral, brought to bear by the accused to induce the wife to leave her husband in order that her leaving may amount to taking away by the accused, and there is no evidence in this case of any physical or moral persuasion on the part of the accused. The wife says that she left her husband, because he was ill-treating her. It is not enough, I think, to say that the wife could not have left her husband, unless she had somewhere else to go, and that it must be assumed, therefore, that the accused offered her a home, if she would leave her husband. There is no evidence of that. It is quite possible that if the wife had left her husband apart from the accused, she might have gone to her father's place or to some other relative, or she might have been in a position to earn her own living as a millhand. It is not possible to assume that she could not have left her husband, unless the accused influenced her.
3. The case, which comes nearest to the present case, is Hossaini Methor v. Emperor (1937) 38 Cr.L.J., 986, a decision of a bench of the Calcutta High Court, in which the facts were very similar to the facts in the present case, and the Court there said that to bring Section 498 into operation there must be some influence operating on the woman, or co-operating with her inclination at the time the final step is taken which causes a severance of the) woman from her husband, for the purpose of causing such step to be taken, I think that view is right, and I think here the evidence fails to establish that there was any influence brought to bear on; the wife to induce her to leave her husband, and in the absence of such evidence I do not think we are justified in a criminal case in inferring it.
4. The application will be allowed, the conviction set aside, and; the accused discharged. Bail bond cancelled.