1. The applicant has been convicted under Section 498, I.P.C., i.e. for keeping one Mt. Jagdei, the married wife of the complainant, in his keeping as his mistress.
2. Mt. Jagdei was a widow. The complainant says that after the death of her former husband the said woman made a second marriage with him. The woman denies this fact. There is no evidence in this case that the applicant took or enticed away the woman. All that the evidence shows is that the woman herself went to live with the applicant. This being so the chief element which constitutes the offence under Section 498 is wanting. Again my attention has not been directed to any evidence which could prove that the applicant is keeping the woman in his house for the purpose of an illicit intercourse with her. The woman is not willing to go with the complainant and all that the evidence on the record shows is that the appellant also helped the woman in her not being taken away by force by the complainant. In this way the utmost that can be said against the applicant is that he is in a way detaining the woman. It has, however, been held in the ruling reported in the case of Lachman Chamar v. Emperor (1920) 18 A.L.J. 311, that there can be no detention where the woman is living with a man of her own free will and refused to go back with her husband. The evidence on the record does not in my opinion prove the offence under Section 498, I.P.C., with which the accused has been charged and the conviction of the accused does not appear to be proper. Let the record be sent to the learned Magistrate for an explanation as to why the case should not be referred to the Hon'ble High Court with a recommendation that the conviction and the sentence passed on the applicant be set aside.
3. I am inclined to agree with the Sessions Judge. It does not much matter because the sentence has been served, but I formally accept the reference and set aside the conviction.