Alamgir & Another v. The State of Bihar

GAJENDRA.GADKA.R, J.-Tbis criminal appeal raisesG11jelldr111•tliM J. a short question a.bout the construction of the word " detains " occurring in s. 498 of the Indian Penal Code. It a.rises in this way. The two appellants were charged before the trial magistrate under s. 498 of the Code in that on or a.bout October 27, 1952, at the village Moha.nia they w~ongfully detained Met.

466 SUPHEME COURT REPORTS [1959] Supp. '938 Rahmatia, the legally married wife of the c.omplainant Alamgir Saklu Mian, when they knew or had reason to believe Ano""' that she was the. wedded wife of the complainant and v. was under his protection, with intent to have illicit Thi State of intercourse with her. The prosecution case was that

Bih•r Mst. Rahmatia had disappeared from her husband's G•i••dragadkar 1. house on October 21, 1952; the complainant made

search for her for several days but was not able to trace 'her whereabouts. Ultimately he filed a com-plaint at the police station after he was informed by Shakoor Mian (P. W. 4) that he had seen the complain-ant's wife at the house of the two appellants. The complainant then went to the house of the appellants along with Shakoor Mian (P. W. 4), Musa Mian (P. W. 2) and Suleman Mian (P. W. 3); they saw the woman in the house of the appellants whereupon the complainant asked appellant No. 1 Alamgir to let his wife go with him but appellant No. 1 told him that he had married her and appellant No. 2 warned him to get away and said that, if he persisted, he would be driven out.. This story is corroborated by the three companions.of the complainant.

The appellants denied the charge. They pleaded that the complainant had not validly married the woman and that she had not been detained by them. Accord-ing to them, the wolll)l.n was tired of living with the complainant and that she had voluntarily and of her free will come to stay with the appellants.

The learned trial magistrate believed the prosecution evidence, rejected the pleas raised by the defence, con-victed the appellants of the charge framed and sen-tenced them to undergo simple imprisonment for two months each. This order of conviction and sentence was challenged by the appellants by their appeal before the court of sessions. The appellate court con-firmed the conviction of the appellants but reduced their sentence from simple imprisonment for two months to a fine of Rs. 50 or in default simple impri-sonment for one month each. The appellants then moved the High Court at Patna in its revisional juris-diction. When the revisional application came to be heard before Choudhary, J., the learned judge thought that the appellate court should not have reduced the '958 sentence imposed on the appellants by the trial magis-trate and so he issued a notice against the appellants Alomgir c;. Another calling upon them to show cause why their sentence v. should not be enhanced. This notice and the main The State of revisional application were ultimately heard by Bihor Ramaswamy and Imam, JJ., who confirmed the order .

of conviction and enhanced the sentence against both Ga;endragadkar J. the appellants by ordering that each of them should suWer six months' rigorous imprisonment. An applica-tion made by the appellants to the High Court for a certificate to appeal to this Court was rejected. The appellants then applied for and obtained special leave to appeal to this Court. That is how this appeal has come before us for final disposal.

On behalf of the appellants, Mr. B. K. Saran has urged that the evidence in the case clearly shows that the woman was dissatisfied with her husband and had left his house and protection voluntarily and of her free will. If having thus left the house she came to stay with the appellants and they allowed her to stay with them, it cannot be said that they have detained her within the meaning of s. 498. According to him, the word " detains " used in s. 498 must necessarily imply that the woman detained is unwilling to stay with the accused and has been compelled so to stay with him against her will and desire. It is difficult to imagine that, if a woman is willing to stay with a person, it can be said that the person has detained her. That is not the plain grammatical meaning of the word "detains". It is this argument which calls for our consideration in the present appeal.

At the outset it would be relevant to remember that s. 498 occurs in Ch. XX of the Indian Penal Code which deals with offences, relating to marriage. The provisions of s. 498, like those of s. 497, are intended to protect the rights of the husband and not those of the wife. The gist of the offence under s. 498 appears tci be the deprivation of the husband of bis custody and bis proper control over bis wife with the object of having illicit intercourse with her. In this connection it would be material to compare and contrast the

provisions of s. 498 with those of s. 366 of the Code. Section 366 deals with cases where the woman kidnap-Alanigir ped or abducted is an unwilling party and does not

Anothtr respond to the criminal intention of the accused. In v.

The State of these cases the accused intends to compel the victim

Bihar afterwards to marry any person against her will or to

force or seduce her to illicit intercourse. In other G•jmdr•gadkar .f. words s. 366 is intended to protect women from such

abduction or kidnapping. If it is shown that the woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction or kidnapping, it may prima facie be a good defence to a charge under s. 366. On the other hand s. 498 is intended to protect not the rights of the wife but those of her husband; and so prima facie the consent of the wife to deprive her husband of his proper control over her would not be material. It is the infringement of the rights of the husband coupled with the intention of illicit. intercourse that is the essential ingredient of the offence under s. 498. Incidentally it may be pointed out that the offence under s. 498 is a minor offence as compared with the offence under s. 366.

The policy underlying the provisions of s. 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual tights and o_bligations under marriage. Indeed Mr. Saran vehe-mently argued before us that it was time that ss. 497 and 498 were deleted from the Penal Code. That, however, is a question of policy with which courts are not concerned. It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the acoused should be preferred ; but in construing the relevant words, it is obviously necessary to have due regard to the context in which they have been used ; and, as we will presently point out, it is the context in which the word "detains" has been used in s. 498 that is substantially against the construction for which the appellant contends.

Section 498 provides:

(I) S.C.R. SUPREME couwr ltEPORTS 469

"Whoever takes or entices away auy woman r958 who is and whom be knows or bas reason to believe to be the wife of any other man, from that man, or from &A~a::;,~:.:, any person having the ca.re of her on behalf of that v. man, with intent that she may have illicit intel'Course l'he State of with any person, or conceals or detains with that intent Bi/Jar any such woman, shall be punished with imprisonment . of either description for a term which may extend to Ga;mdragadhar f. two years, or with fine, or with both. "

It would be noticed that there are three ingredients of the section. The offender must take or entice away or conceal or detain the wife of another person from such person or from any other person having the cu.re of her on behalf of the said person. He must kuow or has reason to believe that the woman is the wife of another person ; and the taking, enticing, concealing or detaining of the woman must be with intent that she may have illicit intercourse with any person. It is clear that if the intention of illicit intercourse is not proved the presence of the first two ingredients would not be enough to sustain the charge under s. 498. lt is only if the said intention is proved that it becomes necessary to consider whether the two other ingredients are proved or not.

It is plain that four different kinds of cases are con-templated by the section. A woman· may be taken away or enticed away or concealed or detained .. There is no doubt that when the latter part of the section refers to any such woman, it does not mean any woman who is taken or enticed away as described in the first part, but it refers to any woman who is and whom the offender knows or has reason to believe to be the wife of any other man. It is not seriously disputed that in the first three classes of cases the consent of the womau would not matter if it is shown that the said consent is induced or encour-aged by the offonder by words ..or acts or otherwise.

Whether or not any influence proceeding from the offender has operated on the mind of the woman or has co-operated with or encouraged her inclinations would always be a question of fact. If, on evidence, the court is satisfied that the act of the woman in •9.sB leaving her husband was caused either by the influ-

ence of allurement or blandishments proceeding from &A~::;,;::. the offender, that may be enough to bring his case

v. within either of the three classes of cases men-n State of tioned by s. 498. In this connection, when the

Bihar consent or the free will of the woman is relied upon in - defence, it is necessary to examine whether such alleg-G•J•ndragadka• f. ed consent or free will was not due to allurement or

blandishments or encouragement proceeding from the offender.

It is, however, urged that, when the latter part of the section speaks of detention, it must prime. facie refer to the detention of a. woman a.gs.inst her will. It ma.y be conceded that the word "detains" ma.y denote detention of a person against his or her will; but in the context of the section it is impossible to give this meaning to the said word. If the object of the section had been to protect the wife such a construction would obviously ha.ve been appropriate; but, since the object of the section is to protect the rights of the husband, it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for her willingness has not detained her. Detention in the context must mean keeping back a - wife from her husband or any other persOil having the care of her on behalf of her husband with the requisite intention. Such keeping back may be by force; but it need not be by force. lt can be the result of persuasion, a.llurement or blandish·- ments which may either have caused the willingness of the woman, or may have encouraged, or co-operated with, her initial inclination, to leave her husband. It seems to us that if the willingness of the wife is immaterial and it cannot be a defence in cases falling under the first three categories mentioned in s. 498, it cannot be treated as. material factor in dealing with the last category of case of detention mentioned in the said section. Therefore, we are satisfied that the High Court was right in holding that the charge of detention has been proved against appellant No. 1 inasmuch as both the courts of facts have found that he had offered to marry Mst. Rahmatia and thereby i958 either persuaded or encouraged her to leave her hus-band's house. It may be that Rahmatia was dissatis-Alamgir fied with her husband and wanted voluntarily to leave & Anoth•r v. her husband ; but, on the evidence, it has been held The state of that she must have been encouraged or induced not to Rihar go back to her husband because she knew that she . - would find ready shelter and protection with appellant Ga;endragadkar f. No. land she must have looked forward to marry him. In fa.ct appellant No. 1 claims to have married her. Thus there can be no doubt that he intended to have illicit sexual intercourse with her. That is the effect of concurrent findings of fact recorded against appellant No. 1; and it would not be open to him to challenge their correctness or propriety in the present appeal.

This section has been the subject-matter of several judicial decisions and it appears that, except for a few notes of dissent, there is a fair amount of unanimity of judicial opinion in favour of the construction which we feel inclined to place on the word "detains" in s. 498.

It is, however, true that the relevant decisions, to some of which we would presently refer disclose a striking difference of approach in dealing with questions of fact. It would appear that though the relevant por-tion of the section has received the same construction In dealing with same or similar facts, the learned judges have differed in. their conclusion as to whether the accused person had been guilty of conduct which would bring his case within s. 498. This, however, is a difference in the method of approaching evidence and assessing its effects. It would be futile and even improper to consider whether a particular conclusion drawn from the specific evidence adduced in the case was right or not. What is important in such cases is to see how the section has been construed and, as we have just indicated, in the matter of construction there appears a fair amount of unanimity. Let us now refer to some of the decisions cited before us.

In 1868, the Madras High Court held in Sundara Dass Tevan (1) that depriving the husband of his r958 proper control of his wife for the purpose of illicit inter-

course is the gist of the offence h just as it is the offence Alamgir of taking away a wi1e .c under t e same section; and a

Anoth"

v. detention occasioning such deprivation may be brought n. State of about simply by the influence of allurement and

Bihar blandishment. On the facts of the case, however, the d-dk court was not satisfied tliat the accused had offered •;•• ••ca "' 1 ·any such allurement or blandishment and so the order

of conviction passed against the appellant was quash-ed. It appears that the construction put by the Madras High Court on s. 498 in this case has been generally accepted in the said High Court (Vide Ramaswamy Udayar v. Raju Udayar(') ).

The Bombay High Court has taken the same view in Emperor v. Jan Mahomed ('). It was held by the High Court that the offence contemplated by s. 498 is complete if it appears that the accused went away with the woman in such a manner as to deprive her husband of the control of his wife; the fact that the woman accompanied the accused of her own free will does not diminish the criminality of the act. Even in this case, the court was unable to discover any evid-ence, direct or indirect, about the intention of the accused or any allurement or blandishment offered by him and so the order of conviction passed against the accnsed was set aside. This question came to be con-sidered by the said High Court again in Emperor v. Mahiji Fula. ('). Mr. Justice Broomfield who delivered the main judgment of the Bench has expressed the view that "the word 'detains ' means, by deprivation, and according to the ordinary use of the language • keeps back' " ; and he adds that "there may be various ways of keeping back. It need not necessari-ly be by physical force. It may be by persuasion or, as the Court" (Madras High Court) "has observed in this particular case " (Sundara Dass Thevan (')) "by allurement or blandishment". On the facts, how-ever, it appeared to the trial court that the conduct of the accused did not bring his case within the mischief of s. 498. The wife of the complainant had been taken

(1) A.LR. (1953) Mad. 333. (2) (1902) IV Born. L.R. 435. (3) (1933) l.L.R. 58 Born. 88, 92. (4) (1868) IV Mad, H.C.R. 20. away by her brother and she was subsequently r958 married by natra marriage to the accused. The com-plainant learnt about this incident and went to the c,.A~::'a~!:, accused to ask him to allow his wife to go back v. to him. On seeing the compl&.inant and his friends The State of the accused came out with a dharia and threatened Bihar the complainant and his companions who then re- . - turned to their village. The 9onduct of the accused Ga1endragadkar J. when the complainant approached him, it was said, cannot necessarily indicate that . the accused had detained the woman. This was the view taken by the trial court who acquitted the accused; on appeal the High Court saw no reason to differ and so the order of acquittal was confirmed by it. Divatia, J., who deli-vered the concurring judgment apparently differed from Broomfield, J., in regard to the construction of the word "detains". He" agreed that the scheme of R. 498 showed that though the woman may be perfect-ly willing to go with the man the offence of ta.king or enticing away would occur because it simply consists of ta.king or enticing away a woman without anything more; but according to him, in the latter part of the section, which speaks of concealing or detaining the woman, the woman would be de~ained only if she is prevented from going in any quarter where she wantR to go. In our opinion, this construction is not sound.

It is not easy to see how the act of concealing the woman would necess.~rily import any considerations of the consent of the woman ; besides, according to Diva-tia, J., himself, the woman's consent would be irrele-vant in the cases of taking or enticing her a.way. If that be so, it is difficult to make her consent relevant and decisive in dealing with the cases of detention.

Unfortunately the learned judge does not appear to have appreciated the fact that the primary and the sole object of s. 498 is to protect the husband's rights and not the rights of the wife. If it is shown that the woman's inclination to stay away from her husband was either instigated or encouraged by the offender, she can be said to have boen detained or kept away from her husband within the meaning of the section

474 SUPREl\IE COURT REPOR.TS [1959] Supp. though at the time of the detention she may be willing to stay with the offender. The same view has been Al•mgir expressed by Broomfield and Sen, J J., in Emperor v. Another Ram Narayan Baburao Kapur(!) and by Beaumont v. J., J., The Slate of C. and Sen, in Mahadeo Rama v. Emperor('). We

l:Jihar may point out that in both these cases the court was

not satisfied that the accused was in fact shown to G•j•nd .. gadkar j. have detained the woman.

The Calcutta High Court appears to have put a similar construction on the word "detention". In Prithi Missir v. Haralc Nath Singh(') it has been held by the said High Court that "the word 'detention' is ejusdem generis with enticement and concealment. It does not imply that the woman is being kept against . her will but there must be evidence to show that the

accused did something which had the effect of prevent-ing the woman from returning to her husband". On the merits, however, the court held that the learned trial magistrate had not come to any definite finding of fact. In fact it did not appear that the accused was keeping the complainant's wife as his mistress; and on the whole, the court was not satisfied that the accused was responsible for the conduct of the com-plainant's wife for leaving her husband's house and so detenGion was held not proved against the accused. In Mabaralc Sheikh v. Ahmed N ewaz (') the same High Court held that there can be no detention of a woman within the meaning of s. 498, second part, if the woman ·is an absolutely free agent to go away from the person charged whenever she likes. It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she likes to do so ; and in support of this view they have referred to some of the decisions which we have already considered. ·with respect, it appears that the effect of the earlier decisions has not been properly considered and the findings of fact recorded in the said decisions are assumed to lend colour to, and modify, the construction of the section

(!) (1937) 39 Born. L.R. 61. (2) A.LR. (1943) Bom. 179. (3) l.L.R. (1q37] 1 Cal. 166. (4) (1939) 43 C.\V.:N. ~::?o. adopted by them. Besides, the relevant observations 1958 apiJear to be obiter because, on the facts, it was found l in this case that t h e woman was not a f• ree agent anc Alamgir & Another so the charge agai11st the accused under s. 498 was v. held established. In Bipad Bhanjan Sarkar v. Emper-rhc state of or (1), Henderson and Khundkar, JJ., have considered Bina• the word "detains" in the same manner as we have - cone. l H owever, as In · many ot h er cases, . th' is case Gajendra•adkar • 111 also, the court found that there was absolutely nothing to show that the accused had done anything which could bring his case within the mischief of s. 498.

The Patna High Court, in Banarsi Raut v. Emper-or (2), has held that providing shelter to a married woman is such an inducement as to amount to deten-tion within the meaning of s. 498. This case shows that where a married woman was found living in the house of the accused for some time and sexual inter-course between them had been established, the court was inclined to draw the inference that there was per-suasion or inducement of the woman as would come within the meaning of the word " detention ". This is a case on the other side of the line where on facts the inference was drawn against the accused.

'fhe Lahore High Court has taken a similar view as early as 1913 in Bansi Lal v. The Crown (3). The court has held that where the accused had provided a house for the woman where she stayed after deserting her husband under the protection of the accused as his mistress, it was active conduct on his part which was sufficient to bring him within the terms o.f s. 498. In 1939, however, a Division Bench of the Lahore High Court has taken a contrary view in Harnam Singh v.

Emperor (4). In this case the rev isional application filed by Harnam Singh against his conviction under s. 498 was first argued before Din Muhammad, J., who referred it to a Division Bench because he thought that the question of law raised was of some import-ance. In his referring judgment the learned judge mentioned some of the relevant decisions to which his a.ttentiou wa.1:1 drawn and indicated his own view that I (t) I.L.R. [1940} 2 Cal. 93. (2) A.l.R. (1938) Pat. 432.

\3) (1913) XIV Punjab L. R. 1o66. (4) A.l.R. (1939) Lah. 295.

the word "detains " would naturally imply some overt Alamgfr act on the part of the person who detains in relation Another to the person detained. He thought that mere v. blandishment would not constitute any relevant fact.Jr The Stote 01 in the matter of detention. The matter was then

lliliar __ p l ace d b efore a D ivision Bench consisting of Young, Gajendrugadk•r J.C. J., and Blacker, J. Unfortunately the judgment of

the Division Bench does not discuss the question of the construction of s. 498 ; it merely records the conclu-sion of the court in these words: "In our opinion, the word "detains " clearly implies some act on the part of the accused by which the woman's movements are restrained and this again implies unwillingness on her part. Detention cannot include persuasion by means of blandishments or similar indu,cements which would leave the woman.free to go if she wished". The learn-ed judges also added that they were of the opinion that the word " detains " cannot be reasonably construed as having reference to the husband. ~n our opinbn, these observations do not correctly represent the true purport and effect of the provisions of s. 498.

The position, therefore, is that, on the findings of fa.ct ma.de by the lower courts against appellant No. I it must be held that he has been rightly convicted under s. 498.

That takes us to the q.uestion of sentence imposed on him by the High Court in its revisions.I jurisdiction. We are satisfied that the High Court was not justified in directing appellant No. I to suffer rigorous imprison-ment for six months by way of enhancement of the sentence. It is unnecessary to emphasise that the question of sentence is normally in the discretion of the trial judge. It is for the trial judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a give11 case. The High Court undoubtedly has jurisdiction to enhance such sentence under s. 439 of the Code of Criminal Procedure; but this jurisdiction can be pro-perly exercised only if the High Court is satisfied tha.6 tho sentence imposed by the trial judge is unduly lenient, or, that, in passing the order of sentence, the trial judge had manifestly failed to consider the relevant facts. It may bo that the High Court thought 1958 that the appellate order passed by the i:iessions Judge Alamgir modifying the original sentence was wrong, and in & Anoih•• that sense, the issue of notice under s. 439 of the Code v. of Criminal Procedure against appellant No. 1 to show 1·hc state of cause why his sentence should not be enhanced may J:Jihar have . been justified; but, in enhancing the sentence, . --dk the High Court should, we think, have restored the Ga;cndraga ar sentence passed by the trial judge himself. It is true that, in enhancing the sentence, the High Court has observed that "women in this country, whether chaste or unchaste, must be protected and that it is the duty of the court to see that they are given sufficient pro-tection". We arc inclined to think that the considera-tion set out in this observation is really not very helpful and not decisive because, as we have already observed, s. 498 does not purport to protect the rig_hts of women but it safeguards the rights of husbands.

Besides, in the present case, it is clear that Mst.

Rahmatia, who is a woman of loose moral character, was dissatisfied with the complainant, who is her second husband, and was willing to marry appellant No. l. In such a case, though appellant No. 1 is guiit,y under s. 498, it is difficult to accept the view of the High Court that the sentence of two months' simple imprisonment' ·imposed on him by the trial court was sri unduly or manifestly lenient as not to meet the ends of justice. It would not be right for the appellate court to interfere with the order of sentence passed by the trial court merely on the ground that if it had tried the case it would have imposed a slightly higher or heavier sentence. We would accordingly modify the order of sentence passed against appellant No. 1 by reducing it to that of simple imprisonment for two months.

The case of appellant No. 2 is clearly different from that of appellant No. l. The findings of fact recorded by the courts below do not implicate appellant No. 2 in the act of persuasion or offering blandishments or inducements to Mst. Rahmatia. The only evidence against this appellant is that when the complainant went to take away his wife appellant No. 2 threatened

him. The record shows that appelfant No. 2 is the brother of appellant No. I; and, if knowing that Alan:gir ltahmatia had married his brother, appellant No. 2 AnoJhcr v. told the complainant to walk away, that cannot legally The State of justify the inference that he m11st have offered any

/Jiht1r inducement, blandishment or allurement to Rahmatia

for leaving the protection of her husband and refusing Gajendragadluir · 1 ·to return to him. Indeed the courts below have not

considered the case of this appellant separately on its own merits at all. In our opinion, the conviction of appellant No. 2 is not supported by any evidence on the record. The result is the appeal preferred by appellant No. 2 is allowed, the order of conviction and sentence passed against him is set aside and he is ordered to be acquitted and discharged.

Appeal of appellant No. 1 d·ismissed. Appeal of appellant No. 2 allowed.

THAKUR RAGHUBIR SINGH AND OTHERS

v.

N ove111ber I 4.

THE STATE OF AJ"fER (NOW ltA.JASTHAN)

AND OTHERS

(and connected petitions) (S. R. DAS, c. J., N. H. BHAGWATI, ll. P. SINHA, K. SuBBA RAO and K. N. \VANCHOO, JJ.) Land Reform-Abolition of Intermediaries-Validity of Enact-mrnt-Competcncy of Legislature-Liability to rernmptir"' of jagir esfates-Ajmer Abolition of Intermediaries and La11d J«forms Act, 1955 (Ajmer III of z955), ss. 8, 38-Cot1slil11tiot1 of India, Scvrnth Schedule, List I, entry 33, List JI, miry 36, List III, e11lry 42.

Section 4 of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955, provided for vesting of all estates held by intermediaries, as defined in the Act, in the State from a <late to be notified, and the petitioners who were affected th ere by filed petition~ under Art. 32 of the Constitution of India chal-lenging the Yalidity of the Act and, in particular, ss. 8 and 38 of the Act on the grounds that (r) entry 36 of List II of the

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 187 of 1956.

Appeal by special leave from the judgment and order dated December 7, 1955, of the Patna. High Court in Criminal Revision No. 875 of 1954, a.rising out of the judgment a.nd order dated Ma.y 31, 1954, of the Court of the Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of 1953.

B. K. Saran a.nd K. L. Mehta, for the appellants.

R. H. Dhebar and T. M. Sen, for the respondent.

1958. November 14. The Judgment of the Court was delivered by