1. In this case a rule was issued calling upon the District Magistrate to show cause why an order of the learned Assistant Sessions Judge adding a charge should not be set aside, on the following ground:
That the learned Subdivisional Officer having dismissed the complaint under Sections 497 and 498, I. P.C., and the learned District Magistrate having in effect ordered a further enquiry into the complaint and no further enquiry having in fact been held the joinder of a charge under Sections 497 and 498 in the Court of Sessions is not warranted by law.
2. The facts of this case are peculiar. On 20th June 1928 a complaint was lodged by one Mathur Rajbanshi against the petitioner Abdul Karim Shah and a person named Mahamed Hossein saying that his wife Kahabani Baishnabani had been enticed away. A case under Section 498 was started, but was compounded, and the accused were acquitted. While that case was pending the Sub-Inspector of Police submitted a report suggesting the institution of proceedings under Section 107, Criminal P.C., alleging that there was a . likelihood of a breach of the peace over the custody of this woman. But the husband stated that there was no likelihood of a breach of the peace because he had settled the previous case by compromise. In spite of this statement the learned Subdivisional Officer refused to drop the proceedings saying that he wanted to see the woman and to be satisfied that a proper settlement had been arrived at. Upon that the husband stated that he could not produce his wife as she was unwell, and that he had no further enmity with the other party and that he was a poor cultivator and did not want to be harassed,. Thereupon the Subdivisional Officer made an order saying that he had reason to suspect that the wife was being coerced and that an offence under Section 366 had been committed, and he issued a warrant for the production of the woman. On 5th November 1928 the husband filed a complaint against the present two petitioners and Mahamed Hossein alleging that his wife had been abducted by them on 31st August 1928 namely on the date next after the date of compromise already referred to. On 23rd November the woman was produced, and she stated that she had been secreted by her husband, also that she had been abducted by the accused some three months before. On 7th December the officer-in-charge recorded:
The complainant is not taking any interest in the case.
3. On 28th January 1929 the woman was produced and the order recorded is that she refused to go back to her husband. Then on 31st January the order recorded is:
The woman is now in hajat having failed to produce proper bail of the husband
and that a new case had been started by the police on a fresh incident relating to the abduction. While all this was going on, on 1st December 1928 the husband stated that his wife had been released from hajat on a bail of Eg. 200 in the pending abduction case, and that in the early hours of the morning he suddenly found eight or nine persons taking his wife away, among whom were Abdul Karim and Mahamed Hossein. In connexion with this latter case the petitioners and two others namely Mahamed Hossein and one Nazaruddin Sarkar were arrested. On 12th February 1929 a charge sheet was submitted by the Sub-Inspector and the case under Section 107 was dropped. When they moved the learned Sessions Judge for bail the learned Judge released them on bail with these remarks:
A third case of abduction which purports to say that the woman was taken away against her will must be treated with great suspicion.
4. On 3rd February 1929 the Subdivisional Officer transferred both the cases (consolidated) to the Deputy Magistrate for disposal. Then on 27th May 1929 the surety of the woman stated that the woman had disappeared. The Magistrate recorded an order saying that the husband refused to give any assistance in finding her, and that from his attitude it seemed that he did not take any interest in the case, and that the evidence indicated that the woman was of a bad character and was siding with the man who for the time being had got possession of her. After all this an application was made to withdraw the complaint and this was allowed. While this police case under Section 366 was pending the husband instituted a complaint under Sections 497 and 498 in respect of the occurrence of 1st December 1928 and the learned Sub-divisional Officer having examined the complainant stated:
It is very much belated. The occurrence alleged took place a year before and dismissed the complaint under Section 203, Criminal P.C. Thereupon the husband moved the 'learned District Magistrate and he without giving any notice to the petitioners to show cause, set aside the order of dismissal of the Subdivisional Officer with the remark that the facts of the case were known to him, and he admitted the petition and forwarded it to the trying Magistrate for disposal. He heard both sides regarding the legality of including a charge under Section 498 and stated that in his opinion there was no law under which the trying Court could entertain petitions filed before another Magistrate in regard to a case or enquiry pending before it, and that moreover the so-called complaints made before him after the close of the evidence were not really complaints as understood under the law but were simply petitions,
and he decided to commit the accused to the Sessions on a charge under Section 266, I. P.C., and refused to commit them under Sections 497 and 499 saying that if the learned Sessions Judge thought fit he could add the charge himself. Both these orders seem to have been irregular. The District Magistrate had no right to make the order he did without giving the petitioners an opportunity to show cause. The trying Magistrate seems to have refused to carry out the order of a superior Court. On 7th July 1930 the petitioners and two others were committed to the Sessions under Section 366 before the learned Assistant Sessions Judge of Malda. The Public Prosecutor than asked to be allowed to join or add charges under Sections 497 and 498. The learned Judge, in spite of the petitioners' objection, said that he would allow the said charges to be added. But at the petitioners' request ho gave them time to move this Court.
5. The facts which I have detailed indicate that there are many things in this case which are not at all satisfactory. The case under Section 366 has to be tried, and possibly a future case under Sections 497 and 498. For these reasons it is undesirable that we should say any more about the evidence which may be produced by the husband in either or both of these cases. It is desirable in view of the circumstances to which we have alluded that the matter should be completely thrashed out. It appears to us that the learned advocate for the petitioners is right in the contention which he has raised. Section 199, Criminal P. C, provides that no Court shall take cognizance of an offence under Section 497, Section 498 except upon a complaint made by the husband of the woman and the word 'complaint' is defined in Section 4 (h) as an allegation made orally or in writing to a Magistrate under this Code. It seems to us that what is intended by Section 199 is that there should be a complaint by the husband followed by the ordinary procedure of enquiry before a committing Magistrate. Otherwise no charge under this section should be enquired into or should be heard by the Sessions Court.
6. Mr. Khundkar has referred us to Section 226 which gives the Court, or in the case of a High Court, the Clerk of the Crown, power to frame charges or add to or alter the existing charges, 'which at first sight seems to give power to the Sessions Judge to add charge under Section 497 or 498 as is suggested in this case. We are satisfied however, that the section does not provide the Sessions Judge with such power. The illustrations show that the only new charges or additions or alterations which may be made, are those which can be said to be supported by the evidence which is relevant to the charge already made, Illus. 2, for example, shows that a charge of fabricating false evidence may be added to a charge, of forging a valuable security. It is obvious that some evidence will be relevant to both charges. Illus. 3 shows that if there is a charge of receiving stolen property knowing it to be stolen, and during the trial counterfeit coin is found in the possession of the accused, a charge of possessing counterfeit coin cannot be added --the reason obviously being that the evidence which is relevant to the charge of receiving stolen property is totally different from that on a charge of counterfeiting coin.
7. Similarly in the present case the evidence which is relevant to the charge of adultery under the section to which we have referred is totally different to the evidence which is relevant to the charge of abduction under Section 366. The defence to the latter charge may be one of consent, and it may be that the petitioners had prepared themselves to meet the charge by such a defence. But when a man is suddenly confronted with a charge of adultery, which depends in the first place upon evidence going to show that there was a lawful marriage, he might be put in great difficulty in having to meet such a case of which he had had no notice before, and which he might not have been prepared to meet. Our view of this section is confirmed by the fact that when Section 238 was amended Sub-section (3) was added excluding Sections 198 and 199 from the provisions of Section 238. For these reasons we think that the most satisfactory course will be to send this complaint under Sections 497 and 498 to the Sub-divisional Officer to be enquired into by him in the usual way after which he will commit the petitioners to the Sessions or not or will dispose of the case as he thinks fit.
8. It appears that the learned Sessions Judge did not make an order allowing the charges to be added. He simply adjourned the case and gave time to those who had appeared for the petitioners to move this Court. There is therefore no order of his which it is necessary to set aside. The Sessions trial will proceed on the charge under Section 366. There must not be any charge added under Section 497 or under Section 498. To that extent the rule is made absolute.