R.S. Pathak, C.J.
1. The Chief Judicial Magistrate, Dharamsala has charged the oeti-tioner with an offence under Section 498 of the Indian Penal Code of having taken away Zinat Akhtar, whom he knew or had reason to believe to be the wife of Samuel Akhtar, from her husband's house with intent that she might have illicit intercourse with him.
2. The charge was framed on a complaint by Samuel Akhtar under Sections 497 and 498 of the Code against the accused. The complaint was lodeed on Julv 24 1967- It was alleged that Zinat Akhtar, subsequently known as Sneh Mala, was his legally married wife, that thev had four children of whom two survived, one a daughter ased 16 vears old and the other a son about 10 vears old. It was said that the accused who had known Zinat Akhtar previously as the legally wedded wife of the complainant, induced her to leave the house of her husband on October 14, 1965. It was alleged that he had taken her awav with the intent to have illicit intercourse with her. It was further alleeed by the complainant that he had reported her departure to the police but as the whereabouts of the accused and Zinat Akhtar could not be ascertained the proceedings had to be dropped. But on June 11. 1967. it was said the complainant met the accused and Zinat Akhtar at Bombay and learned that the accused was keeping her with him and giving out that she was his wife. There were further allegations that the accused was having sexual intercourse with her and that he was also offering her to different persons for that purpose for pecuniary sain. The complainant further alleged that although he had reauest-ed Zinat Akhtar to accompany him she had declined to do so at the instance and instigation of the accused and, therefore the accused could be said to be detaining her-
3.' The accused applied in revision under Section 435 of the Code of Criminal Procedure, and the learned Sessions Judge, Kangra Division at Dharamsala has recommended the case to this Court for auashing the charge.
4. Before the Chief Judicial Magistrate the complainant examined Gian Chand P. W. 2, Chuni Lai Solomon, P. W. 3, Beniamin Petrus. P. W. 4, Emanuel Den P. W. 5, Munshi Ram P. W. 6 Amrit Lai Nagina P. W. 7 and Assa Singh P. W. 8. The learned Sessions Judge has examined the evidence on the record. He observes that the complainant and Zinat Akhtar had not been living in harmonv. that she was interested in music and intended to stav in Bombay with the children, and that perceiving that she was determined to do so the complainant abandoned all obiection and informed her accordingly. According to the learned Sessions Judge the testimony of Gian Chand PW-2 and Munshi Ram PW 6 does not indicate that the accused took Zinat Akhtar awav from the house of the complainant, that Chuni Lai Solomon PW. 3 and Beniamin Petrus PW. 4 who said that thev had seen the accused and Zinat Akhtar together, were merely chance witnesses, and that the testimony of Emanuel Den PW. 5 concerning the accused and Zinat Akhtar related to a period prior to the alleged taking awav of the woman. He has expressed the opinion that the evidence of the witnesses in particular of the complainant Amrit Lai Nagina and Assa Singh does not make out that Zinat Akhtar was taken awav by the accused nor does it disclose that any influence proceeded from the accused and operated on the woman or cooperated with her inclination at the time when she decided to sever her association with her husband and leave his house.
5. The first contention of Shri S. Malhotra, learned Counsel for the complainant is that the learned Sessions Judge has erred in assuming that only 9 witnesses were intended to be produced by the complainant when in fact a list of 29 witnesses was filed originally. It seems that the complainant filed a list of 29 witnesses with the complaint. Thereafter, he filed a fresh list of 9 witnesses. From the record it appears plainly that he had decided to produce those 9 witnesses only. No other witnesses were Proposed at that stage nor, indeed, were any Dro-duced. Therefore no fault can be found if the learned Sessions Judge confined himself to the testimony of those 9 witnesses only-
6. It is next contended by the complainant that the learned Sessions Judge had no iurisdiction to embark upon an appreciation of the evidence on the record- It is urged that in the exercise of revisional iurisdiction he had merely to see whether the order of the Chief iudi-cial Magistrate was vitiated by any ille-salitv or irregularity. It seems to me that when the learned Sessions Judge examined the material on the record he was entitled to do so for the purDose of determining whether there was a real case for trial. the obiect of a preliminary inauirv was explained by Mahmood. J. in the matter of the petition of Luchman v. Jwala ILR (18831 5 All 161 as follows:
The object of the law in providing that the enquirv shall be held by the Magistrate before the accused has to undergo a trial in the Court of Sessions seems to be to prevent the commitment of cases in which there is no reasonable ground for conviction. This provision of law is calculated, on the one hand, to savp the subiects from prolonged anxiety of undergoing trial for offences not brought home to them: and, on the other hand to save the time of the Court of Sessions from being wasted over cases in which the charge is obviouslv not supported by such evidence as would iustifv a conviction.
The Magistrate should see whether there is a prima facie case made out. and if after examining the evidence he is satisfied that it is not trustworthy and that a conviction will not result, he is entitled to record a finding that the witness cannot be believed and that a conviction will not follow: Tarapada Biswas v. Kali-pada Ghose. ILR (1924) 51 Cal 849 : (1925) 26 Cri LJ 117). At the same time, the Magistrate must bear in mind that it is not his function to consider the probabilities and the evidence in the case as if he is a trying Court: Chinnammal v. Konda Reddi AIR 1927 Mad 277 : (28 Cri LJ 120).
7. In the present case, the learned Sessions Judge refused to believe the testimony of some of the witnesses on the ground that they werp chance witnesses or that because of the surrounding circumstances it was not otherwise possible to believe them. While doing so, it is apparent that he kept closelv before him the obiec't of the enauirv, namely whether the evidence made out a case for trial and his entire reasoning is devoted to a decision on the point.
8. In any event, as I shall presently show, even if the testimony of the prosecution witnesses is accepted- it seems to me that there is no case for trial under Section 498 of the Indian Penal Code.
9. Section 498 provides: 'Whoever takes or entices away a woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman shall be punished with imprisonment of either description for a term which may extend to 2 years, or with fine or with both'. From the evidence on the record, it appears that the complainant and his wife visited Bombay in 19o9 and there his wife expressed a desire to learn singing' For that purpose he made arrangements with one Sant Ram Raian of Andheri in Bombay. Shp staved back and continued there for some time and then he wrote to her to ffo back to Palampur. It appears that meanwhile she had developed intimacy with the accused. the complainant learned of this in November 1963. He instituted a suit for divorce against the wife, but the proceedins ended in a compromise. She left for Bombay against the will of her husband, and there is little evidence of his attempting to secure her returm. On the contrary in a letter dated July 16. 1965 (Ex-DA), he wrote to her that while hp was not willing to leavp his iob, he was prepared to render her whatever service and assistance she desired from him that she had complete liberty to take the children with her or to keep them at Simla and he did not want that she should 'finish her life'. In fact he advised her that it was better if she kept the children at Bombav, and whereas the bov could stav with her the daughter should be admitted in a boarding house and subseauentlv sent to college. He added: 'May God give you all the comforts, which.vou can only get in Bombay; as for this poor man, he has already got away from your path so as not to obstruct you in the fulfilment of any of your desires'. As the learned Sessions Judge has observed, it is clear that the wife was determined to lead an independent life at Bombay, that the complainant had lost all control over her and had given up hope of their living together. There is confirmation of this attitude from a subseauent letter Ex. DB. The next circumstance in the seauence of events, is his filing a report on February 28, 1966 against Amrit Lai Naeina to the effect that the latter had taken awav his wife and his children. It is admitted that Amrit Lai Nagina was on visiting terms in the household and used to plav the harmonium while Zinat Akhtar used to sing. It is difficult to fathom the promptings of the complainant's mind at this stage. Shortly thereafter on Julv 24, 1967, he lodged the complaint, out of which this case arises that his wife had been taken awav by the accused on October 14 1965, from Palampur to Bombav without his consent. It may be pointed out. as the learned Sessions Judge has observed, that on October 14, 1965, when Zinat Akhtar is said to have been taken awav by the accused the complainant was not present at all at Palampur.
10. learned Counsel for the complainant concedes that it is not possible to infer from the evidence on the record that the accused had taken or enticed away Zinat Akhtar from the complainant. But, he urges, the evidence sufficiently makes out a case that the accused detained Zinat Akhtar with intent that she should have illicit intercoursp with him- He savs that although she could be said to be living in Bombay of her own free will, she had been siven a place to stay in by the accused and that, learned Counsel savs. makes out a case of persuasion or influence sufficient for a findine that the accused was detaining her. Reliance is placed on Alameir v. State of Bihar : 1959CriLJ527 . In that case the Supreme Court construing the expression 'detain' in Section 498 observed:
detain must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the reauisitp intention. Such keeping back may be by force, but it need not be by force. It can be the the result of persuasion, allurement or blandishments which may either have caused the willingness of the woman or may have encouraaed. or co-operated with, her initial inclination to leave her husband.
From the material placed before me by learned Counsel I am unable to hold that the case falls within the scone of that rule. Zinat Akhtar went to Bombav and moved by the ambition to become an artiste she decided to settle there. This was as long ago as 1959. The letter of July 16. 1965 written by the complainant discloses that he had abandoned all hope of expecting her to return. When that is so, it is not possible to appreciate how subsequently on October 14. 1965. the date mentioned in the complaint the accused can be said to have exercised some influence on her which persuaded her to leave her husband or to continue to remain awav from him. learned Counsel for the complainant says that the accused had offered her a residence and that amounted to such influence. The contention must be negatived. It was not a factor which influenced her to stav awav from her husband. She had decided on settling down in Bombav as an artiste, and had lone aao parted company with her husband. He had refused to ioin her at Bombav. She had given up every intention, and he had siven up every hope of their living together- by providing a residence for her the accused did not introduce any influence persuading her to stav awav from the husband. Zinat Akhtar was. interested in the film world and therefore was anxious to keep up with the accused who was apparentlv reputed to be a film producer. There is nothing to suggest that when the accused and Zinat Akhtar came together in Bombay, it was primarily because of his intent that she should havp illicit intercourse with him. If thev lived together and had illicit intercourse, that could conceivably have been incidental to a relationship alreadv established between them, a relationship which took its essential substance from the fact that he was reputed to be a film producer and she was anxious to be an artiste in the film world.
In order to iustifv the charge under Section 498 it is necessary that the accused could be said to have detained Zinat Akhtar, and to have detained her with the intent that she may have illicit intercourse with him. The persuasion. allurement or blandishments necessarv to make out such detention must be with the intent to such illicit intercourse In my opinion there is no evidence on the record to iustifv such a conclusion.
11. So far as the testimony of the remaining witnesses is concerned who sav that thev had seen the accused and Zinat Akhtar travelling together, there is nothing there which can be said to strengthen the case against the accused. The testimonv of Emanual Den alleging that the accused and Zinat Akhtar had been sleeping together does not take the case any further. Moreover it refers to the year 1964 which falls before the date on which the complaint proceeds-
12 learned Counsel for the complainant has referred to the note made by the Court during the examination of Amrit Lai Nagina about the filing of some documents summoned from Zinat Akhtar and filed by a lawyer on her behalf. He urges that those documents are not admissible and therefore should not bp considered while deciding whether there is a case for trial. There is nothing to indicate what those documents are. and certainly there is nothing to suupest that they include Ex. DA and Ex. DB mentioned above.
13. In my iudement the learned Sessions Judge is right in taking the view that the order framing the charge is not sustainablp and that the charge deserves to be Quashed.
14. Accordingly, the revision application is allowed, the recommendation of the learned Sessions Judge is accepted, and the charge framed against the accused under Section 498 of the Indian Penal Code is quashed.