1. This is an appeal by Jagdamba Prasad, Babu Ram, Ganga Sahai and Uman Shanker against their convictions by the Additional Sessions Judge of Aligarh of an offence under Section 498, I.P.C., and their sentences to various terms of imprisonment under that section. The appeal must be allowed on a legal ground which finds no place in the memorandum of appeal. The appellants were prosecuted by the police as. a result of a report which was made under Section 366-A of the Indian Penal Code, and they were charged under that section. They have however been convicted under Section 498, although no complaint was made by the husbands of the women in respect of whom the offence is said to have been committed as required by Section 199 of the Code of Criminal Procedure.
2. This difficulty was considered by the learned Additional Sessions Judge, who overruled the objection raised on behalf of the appellants, holding that as there had been a report under Section 366-A, I.P.C., and as the husbands had come forward to give evidence the apparent defect in procedure had been cured. In coming to this decision he relied on the case of Jatra Shekh v. Reazat Shekh (1893) 20 Cal 483., and also a recent decision by a, single Judge of this Court. In the case of Empress of India v. Kalla (1883) 5 All 233, it was held by a single Judge of this Court that where the accused had been prosecuted for rape, it was not open to the Court to convict him of adultery when no complaint of adultery had been made by the husband. In the course of that decision Straight, J., remarked:
It by no means follows as a necessary consequence-, that because a husband may wish to punish a person who has committed rape upon his wife, that is, who has had connexion with her against her consent, he will desire to continue proceedings when it turns out that she has been a willing and consenting party to the act.
3. The same process of reasoning applies where a report has been made of abduction and the offence found to have been commmitted is not abduction but only the minor offence under Section 498 of the Indian Penal Code. In Section 238 of the Criminal Procedure Code it has been laid clown that where a person is charged with a major offence but the evidence only proves, the commissions of a minor offence, he may be convicted of the minor offence although he is not charged with it. But in Clause (3) an exception is made to this general rule, namely:
Nothing in this section shall be deemed to authorise a conviction of any offence' referred to in Section 198 or Section 199 when no complaint has been made as required by that section.
4. The decision of the Cancutta Bench, which has been relied on by the Sessions Judge, has not been followed in a later case, namely, Chemon Garo v. Emperor (1902) 29 Cal 415, where it was decided that when a person has been committed to Sessions on a. charge preferred by a husband under Section 376 of the Indian Penal Code and the husband appears as a witness for the prosecution of the offence of rape, it could not be held that he had made a complaint of adultery within the meaning of Section 199 of the Criminal Procedure Code and that the Court could not convict the accused under Section 497 of the Indian Penal Code. Subsequently a Full Bench of the Calcutta High Court in the case of Tara Prasad v. Emperor (1903) 30 Cal 910, gave judgment on the two questions referred to them, namely: (1) is the word 'complaint' in Section 199 of the Criminal Procedure Code, limited to 'complaint' as defined in Section 4 of the Criminal Procedure Code? (2) Where a, complaint is made by a husband of an offence under Section 366 or Section 376, Penal Code, can a charge be added and a conviction be had under Section 498 of the Indian Penal Code? The first question was decided by the Bench in the affirmative, a,nd it followed therefore that the second had to be answered in the negative. A similar view has been taken by the Madras High Court in the case of Bangaru Asari v. Emperor (1904) 27 Mad 61, in which the decision of Mr. Justice Straight reported in Empress v. Kallu (1883) 5 All 233, was followed and approved. I have not been referred to any decision of a Bench, of the Allahabad. High Court on the exact point raised in the present case, but the preponderance of authority both of the High Courts of Calcutta and Madras is strongly in favour of the present appellants, and though single Judges of this Court have not always followed the decision of Mr. Justice Straight in Empress v. Kallu (1883) 5 All 233, I feel that I am fully justified in holding that it may be considered still to be good law.
5. The appeal is therefore allowed on this legal ground, and it is unnecessary for me to consider the facts of the case. I set aside the order of conviction and the sentences passed by the Additional Sessions Judge, and direct that the appellants be acquitted and released. As they are on bail, their sureties may be discharged.