1. The applicant, Bhopan, applies in revision against his conviction under Section 498, Penal Code. The charge against him is that ha was detaining Mt. Bhagwati, wife of Chhotey complainant, with the intention that she may have illicit intercourse with him. This is not the first complaint filed by Chhotey against the applicant. Once before this, Chhotey had filed a complaint against the applicant under the same Section 498, Penal Code and in that prosecution Bhopan was acquitted. Inspite of this previous history Mt. Bhagwati, who is a young woman of 25 years, has been unwilling to live with the complainant. The applicant pleaded not guilty to the charge and the case set up on his behalf was that be was not detaining Mt. Bhagwati.
2. The learned Additional Sessions Judge, who heard the appeal, has found the charge proved against the applicant in the following words:
The evidence adduced by the prosecution fully proved that the woman was the lawfully wedded wife of Chhotey complainant. She was being kept by the accused in his own kotha with the object of having sexual intercourse with her, knowing her to be the lawfully wedded wife of the complainant. He was, therefore, guilty of an offence of detaining the lawfully wedded wife of another person, knowing her to be go, with the above object.
3. It is contended before me that upon these facts it cannot be held that the applicant was detaining Mt. Bhagwati within the meaning of Section 498, Penal Code.
4. The word 'detain' means to keep back and consequently implies some positive act on the part of the person accused of detaining. It is not necessary that detention should be brought about' by physical restraint. It may be brought about even by blandishments and allurements, something akin to 'enticement', mentioned in the first part of the section. There must be either physical restraint or some influence exercised by the accused on the mind of the woman, inducing her to keep away from her husband. But where a woman of her own free will desires to keep away from her husband and to stay with the accused, there can be no detention in any sense of that word. Once the free will of the woman is established, any help or assistance rendered by the accused cannot be regarded to constitute detention, Providing maintenance, affording shelter and rendering assistance in various ways are no doubt matters which are relevant as evidence of allurement and inducement, but they are by no means conclusive. The problem that has to be ultimately determined in every case always remains, whether the woman was a free agent or whether she wag being influenced by the accused.
5. I have examined the entire evidence in this case and it does not go beyond this that the complainant asked the applicant to send Mt. Bhagwati to him, but the applicant did not do so, and that Mt. Bhagwati had been found to be present in the applicant's kotha or she had been found sitting on the same charpoy as the applicant. Mt. Bhagwati was examined as a witness in the case and she stated that she did not want to go to Chhotey because he ill-treated her. She even went so far as to say that she was not living with the applicant but was living in a separate kotha which was opposite to the kotha of the applicant. It is thus clear that Mt. Bhagwati is, herself, unwilling to go to the complain, ant Chhotey, and no inducement or allurement was required to detain her. There is no evidence whatsoever in this case of any allurement, blandishment or enticement practised by the applicant on Mt. Bhagwati to influence her mind to stay with the applicant and not to go to her husband. In the absence of any such evidence it is impossible to hold that the applicant was detaining Mt. Bhagwati within the meaning of Section 498, Penal Code. I am, therefore, of the opinion that the charge against the applicant has not been substantiated by the evidence on the record.
6. I, therefore, allow this application in revision, and set aside the conviction and sentence passed upon the applicant. He need not surrender to his bail. His bail bonds are cancelled.