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Advocates
  • For the Appellant: A.R. Somnath Iyer, P.S. Devdas, Advocates.
Judges
  • Balakrishnaiya, J.
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Citation Codes
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Advocates
  • For the Appellant: A.R. Somnath Iyer, P.S. Devdas, Advocates.
Judges
  • Balakrishnaiya, J.
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Smart Summary

Factual and Procedural Background

The petitioner, Shivalingappa, was convicted under Section 498 of the Penal Code by the First Class Magistrate, Ramanagaram, and sentenced to rigorous imprisonment for six months. The conviction and sentence were affirmed on appeal. The petitioner preferred a revision petition to this Court challenging that judgment.

The substantive factual allegation is that the petitioner enticed away Nanjamma (the complainant's wife) and detained her in Bangalore with intent to have illicit intercourse. The complainant (examined as P.W.8) testified that the accused frequented his house and behaved familiarly with his wife; he had prohibited the accused from visiting. The principal prosecution witness, Nanjamma (P.W.1), gave a detailed account that the accused visited her repeatedly, tempted her by offering jewels and lands, removed her by car to Bangalore and kept her in a house near the Mental Hospital for about twenty days. P.W.2 and P.W.6 provided evidence that the accused and P.W.1 lived together at particular rooms in Bangalore for some days.

Defence evidence aimed to show ill will between the complainant and the accused's father and included one witness asserting that the husband and wife frequently quarreled and that P.W.1 left home of her own accord. This defensive evidence was regarded by the courts below as inconclusive and insufficient to rebut the prosecution case.

Procedural chronology relevant to the jurisdictional issue: a complaint petition was presented by Shivalingappa on 8-11-1949; the Magistrate recorded a sworn statement and endorsed a reference to the police under Sections 155 and 156, Criminal P.C., to investigate and asked for a report by 24/11. The police submitted a charge-sheet on 13-1-1950, and process was issued to the accused.

Legal Issues Presented

  1. Whether the conviction under Section 498, Penal Code, was supportable on the evidence—in particular whether P.W.1's testimony was sufficiently corroborated to sustain conviction and whether the accused's intention to have illicit intercourse was proved.
  2. Whether the Magistrate had jurisdiction under Section 199, Criminal P.C. (which restricts cognizance of offences under Sections 497 and 498 to complaints made by the husband) when the complaint was referred to the police under Sections 155 and 156 and a charge-sheet followed.
  3. Whether the sentence of rigorous imprisonment for six months was excessive in the circumstances of the case.

Arguments of the Parties

Appellant's (Accused's) Arguments

  • The appellant's counsel contended that the evidence of actual enticing away of P.W.1 rests essentially on the uncorroborated testimony of P.W.1 and is therefore insufficient to sustain a conviction in a sexual/enticing case. Reliance was placed on Sachinder Rai v. Emperor (A.I.R (26) 1939 Pat 536) for the proposition that a judge must warn the jury of the danger of convicting on uncorroborated testimony where the witness is inconsistent or an "unscrupulous liar".
  • It was argued that the intention of the accused to have illicit intercourse was not clearly proved and that such intention must be gathered from surrounding circumstances.
  • The appellant challenged jurisdiction under Section 199 Criminal P.C., arguing that because the Magistrate referred the petition to the police under Sections 155 and 156, he did not take cognizance of the offence on the husband's complaint and the proceedings must be deemed to have been initiated on the police report (which, the appellant contended, would not satisfy Section 199).

Prosecution's Case / Position as Reflected in the Opinion

  • The prosecution relied on the testimony of P.W.1 (Nanjamma) as clear and convincing, supported by the complainant (P.W.8) and corroborated by P.W.2 and P.W.6 who testified to the accused and P.W.1 living together at Bangalore. The totality of this evidence showed enticement and detention with intent to have illicit intercourse.
  • On jurisdiction, the prosecution pointed to the Magistrate's examination of the complainant on oath and the recorded endorsement that the petition disclosed a cognizable offence, contending that the Magistrate had in fact taken cognizance under Section 190 and that the complaint satisfied the requirements of Section 199.
  • As to sentence, the prosecution considered the statutory object of Section 498 and the absence of extenuating circumstances to justify interference with the six-month rigorous imprisonment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sachinder Rai v. Emperor, A.I.R (26) 1939 Pat 536 The danger of convicting on the uncorroborated testimony of a girl in sexual offences and the requirement that a judge warn the jury particularly where the girl made hopelessly inconsistent statements or is an "unscrupulous liar". The Court considered the authority but distinguished it: there was nothing on the record to show P.W.1 was an "unscrupulous liar" or of bad character, so Sachinder Rai did not support the appellant's contention of insufficient corroboration.
Jnanendra Nath v. Kshitish Chandra, 39 Cal WN 1280 That the fact of the accused and the girl staying together at night is sufficient to show criminal intent within the meaning of the relevant section; and that the girl's having gone away of her own accord is immaterial to constitute an offence under S.498. The Court applied this principle to hold that the accused's living with P.W.1 in Bangalore for several days established the requisite intent to have illicit intercourse.
Queen Empress v. Sham Lall, 14 Cal 707 (F.B) The requirements of a valid complaint to a Magistrate: (1) facts alleged should prima facie constitute an offence and (2) facts should be brought to the Magistrate's notice with a view to his taking action. The Court relied on this to analyze whether the petition presented on 8-11-1949 satisfied the requirement that the husband (complainant) brought facts to the Magistrate's notice so as to constitute a complaint under S.199.
Supdt. & Remembrancer of Legal Affairs West Bengal v. Abani Kumar Banerjee, A.I.R (37) 1950 Cal 437 Statement that when a Magistrate applies his mind for ordering investigation under S.156(3) or for actions other than proceeding under the complaints chapter, he cannot be said to have taken cognizance of the offence. The Court quoted this passage (approval noted in R.R. Chari) and used it to distinguish situations where a Magistrate merely orders investigation from those where he takes cognizance by examining the complainant under S.200.
R.R. Chari v. State Of Uttar Pradesh, A.I.R (38) 1951 SC 207 Approval and reference to the principle that a Magistrate who applies his mind to matters such as ordering investigation under S.156(3) is not necessarily taking cognizance for the purposes of Chapter XVI. The Supreme Court decision was cited to support the proposition that it is the Magistrate's application of mind and the procedure adopted (e.g., examination under S.200) that determine whether cognizance was taken.
Dr. Robiul Hossain v. K.K. Ram, 82 Cal L Jour 222; Pulin Behari Ghosh v. The King, 53 Cal WN 653 Authorities recognizing that upon a petition of complaint a Magistrate may either take cognizance under S.190(1)(a) and proceed under Chapter XVI or may not take cognizance and instead send it to the police for investigation under S.156(3). These were cited (via a Calcutta judgment) for the general proposition that the magistrate has an option to proceed under Chapter XVI or to refer for investigation, a distinction central to the jurisdictional analysis in this case.
In re Rathana Padayachi, 17 Cr. L.J 363 (Mad.) That the object of S.498 is not so much to protect the husband as to punish those who interfere with the sacred relation of marriage. The Court invoked this to explain the legislative object of S.498 and to support refusal to reduce the sentence in the absence of extenuating circumstances.

Court's Reasoning and Analysis

The Court undertook a two-fold analysis—first of the factual evidence and sufficiency for conviction under S.498, and second of the jurisdictional contention under S.199 Criminal P.C.

On evidence and intent:

  • The Court summarized the prosecution evidence: P.W.1 (Nanjamma) gave a detailed, clear, and convincing account of being tempted by jewels and lands, being removed by car to Bangalore, and being kept for about twenty days. P.W.2 and P.W.6 corroborated that the accused and P.W.1 lived together at particular rooms in Bangalore; the complainant (P.W.8) testified about the accused's familiarity with the wife. The Court concluded there was "clear and cogent" evidence proving enticement and detention with intent to have illicit intercourse, supported by the fact they lived as man and wife for several days.
  • The Court addressed the defence assertion that P.W.1's evidence was uncorroborated and relied on Sachinder Rai. It applied the qualification from that case—warning about convicting on uncorroborated testimony where the witness is shown to be inconsistent or an "unscrupulous liar"—and found no material on record to show P.W.1 was an unscrupulous liar or of bad character. Thus Sachinder Rai did not undermine the conviction.
  • On the element of intent, the Court relied on Jnanendra Nath to hold that staying together at night and living together is sufficient circumstantial evidence of criminal intent; the Court also noted that the girl's having gone away of her own accord is immaterial to constituting an offence under S.498.
  • The Court regarded the defence evidence (ill will between parties and a single witness of quarrels) as inconclusive and insufficient to rebut the prosecution's convincing case.

On jurisdiction under Section 199 and the Magistrate's action:

  • Section 199 was noted to restrict cognizance of offences under S.497 and S.498 to complaints made by the husband. The pivotal question was whether the Magistrate "took cognizance" on the husband's complaint or whether the proceedings were deemed to have been initiated on the police report after referral under Ss.155 and 156.
  • The Court examined the Magistrate's conduct: the Magistrate recorded the sworn statement of the complainant and endorsed the petition with an instruction to the police to investigate on the ground that the petition disclosed a cognizable offence. The Court observed that examination of the complainant on oath is the procedure under S.200, and that taking such sworn statement implies the Magistrate had applied his mind and taken cognizance.
  • Relying on authorities (including Queen Empress v. Sham Lall, the Calcutta decisions, and R.R. Chari), the Court drew the distinction that a Magistrate who simply orders investigation (for example, under S.156(3)) without applying his mind for the purposes of proceeding under Chapter XVI has not taken cognizance. Conversely, where he examines the complainant under S.200 he is deemed to have taken cognizance and should proceed under Chapter XVI. In this case, the Court found that the Magistrate had in effect taken cognizance and that the later reference to the police should be treated as action under S.202 (sending for inquiry) rather than a mere irregular reference under Ss.155 and 156.
  • Accordingly, the complaint satisfied the requirements of S.199 since the Magistrate had initiated proceedings on the husband's complaint.

On sentence:

  • The Court noted that the object of S.498 is to punish those interfering with the marital relation and, finding no extenuating circumstances, concluded that the sentence of six months' rigorous imprisonment was not excessive.

Holding and Implications

Holding: Revision dismissed. The Court found no reason to interfere with the conviction and six months' rigorous imprisonment imposed by the trial Magistrate and affirmed by the Sessions Judge.

Immediate consequences for the parties:

  • The petition is dismissed and the petitioner is directed to surrender to bail and undergo the sentence imposed.

Broader implications:

The opinion applied established authorities concerning corroboration in sexual/enticement cases, the inference of intent from cohabitation, and the legal distinction between a Magistrate merely ordering police investigation and a Magistrate taking cognizance by examining the complainant under S.200. The Court did not indicate that it was laying down any new principle of law; it resolved the case by applying existing precedents and principles to the facts before it.

Show full summary ...

    Venkataramana, Accused- v. Government Of Mysore

    1. The petitioner has been convicted for an offence under S. 498, Penal Code, by the First Class Magistrate, Ramanagaram, and sentenced to undergo rigorous imprisonment for a period of six months. On appeal, the conviction and sentence have been confirmed. It is against that judgment, the revision to this Court is preferred by the petitioner.

    2. Both the lower Courts have considered the evidence in detail and reached the conclusion. A few salient features relating to the case may be stated in order to test the appreciation of evidence. Shivalingappa, the petitioner, is alleged to have enticed away one Nanjamma, the wife of the complainant, and detained her at Bangalore with intent to have illicit intercourse with her. The complainant, the husband of the said Nanjamma, who is examined as P.W 8 has sworn to the fact that the accused was frequenting his house and talking to his wife in familiar terms; in consequence thereof he had expressly prohibited him from visiting his house. In the complaint petition, marked Exhibit P-2, a detailed account of the relationship that existed previously between the accused and the complainant's wife has been recounted and, it is stated that, he (the complainant) straight way suspected the accused soon after he found his wife missing. The principal witness in the case is Nanjamma herself who is examined as P.W 1. Her account of the incident is clear and convincing. She deposes that the accused was visiting her now and then and chatting rather intimately with her. She further gives a detailed history as to how she was tempted by the offer of jewels and lands which ultimately induced her to leave her husband's house and follow the accused. She has, also spoken to the fact of the accused having removed her in a car to Bangalore and kept in a house near the Mental Hospital for about 20 days. P.W 2 deposes that the accused and P.W 1 were living in particular rooms at Bangalore and this fact is fully supported by the evidence of P.W 6. There is, thus, clear and cogent evidence to show that the accused has enticed away P.W 1 and that with intent to have illicit intercourse. This is proved beyond doubt by the fact that they lived as man and wife at Bangalore for a number of days.

    3. The defence evidence is only directed to prove some ill will between the complainant and the father of the accused. One defence witness is examined to show that the husband and wife were constantly querrelling and P.W 1 left the house of her own accord after one such quarrel. The evidences is not only inconclusive but also insufficient to rebut the convincing case made out by the prosecution evidence.

    4. Sri Deva Doss, the learned Counsel for the accused, contended that the evidence regarding the actual enticing away of P.W 1 is that of P.W 1 herself which stands uncorroborated and is insufficient to base a conviction upon. In support of this position, he relied upon a decision in ‘Sachinder Rai v. Emperor’, A.I.R (26) 1939 Pat 536 wherein it has been held that in sexual offences, the failure of the Judge to warn the jury of the danger of convicting the accused on uncorroborated testimony of a girl amounts to misdirection “particularly when the girl has made hopelessly inconsistent statements and shown herself to be an unscrupulous liar”. The qualification extracted from the decision is very significant and there is nothing on record in this case to show that P.W 1 is “an unscrupulous liar” or a woman of either a bad character or of a depraved nature. This decision does not appear to support the argument of the learned Counsel.

    5. The next contention is that the intention of the accused is not clearly proved. The evidence about the intention has to be gathered from the surrounding circumstances. In ‘Jnanendra Nath v. Kshitish Chandra’, 39 Cal WN 1280, it has been observed thus

    “The fact that Janendra and the girl stayed together at night at Surobala's house is sufficient to show that there was criminal intent within the meaning of the section”.

    6. In the same case, it has also been held that the fact that the girl went away of her own accord is immaterial to constitute an offence under S. 498, Penal Code. I am of opinion that the lower Courts are amply justified in holding that the accused is guilty as it is proved beyond doubt that he enticed away the wife of the complainant who was under her husband's protection and detained her with intent to have illicit intercourse.

    7. The learned Advocate for the accused next urged that the conviction in this case under S. 498, Penal Code, is illegal as the Court had no jurisdiction to enquire into the offence except on the complaint of a specified person as required under S. 199, Criminal P.C This objection takes us to the history of the complaint. One Shivalingappa presented a complaint petition to the Magistrate on 8-11-1949 for taking action against the accused and his father for offences under Ss. 379, 497 and 498, Penal Code, for having enticed away his wife Nanjamma with jewels and money. After recording the sworn statement of the complainant the Magistrate endorsed upon the petition as follows:

    “As petition allegations disclose offence cognizable in nature, I refer the petition under Ss. 155 and 156, Criminal P.C, to concerned police to investigate and submit report in respect of all offences alleged. Await report by 24/11.”

    8. The police, after investigation, placed a charge-sheet on 13-1-1950 when process was issued to the accused. S. 199 embodies one of the exceptions to the general rule that a prosecution could be initiated by any person for, it provides that no Court shall take cognizance of an offence under S. 497 or 498, except upon a complaint made by the husband of the woman.

    9. It is argued that since the Magistrate referred the petition to the police under Ss. 155 and 156, Criminal P.C, he did not take cognizance of the offence upon the complaint by the husband but must be deemed to have taken cognizance of the same on the report of the police when process was issued to the accused. The word ‘Complaint’ is defined in S. 4(1)(h), Criminal P.C, as an allegation made to a Magistrate with a view to his taking action that some person has committed an offence but it does not include the report of a police officer. The requirements of a valid complaint are therefore that (1) the facts alleged should ‘prima facie’ constitute an offence and (2) the facts should be brought to the notice of the Magistrate with a view to his taking action ‘Queen Empress v. Sham Lall’, Vide 14 Cal 707 (F.B) It is not doubted that the allegations in the complaint petition presented to the Court disclose an offence and, in fact, in the complaint itself a specific mention is made that one of the offences alleged to have been committed is punishable under S. 498. The Magistrate may take cognizance of an offence in either of the three specified cases mentioned in S. 190 of the Code. It is true that the expression ‘to take cognizance’ has not been defined anywhere in the Code; but the expression ‘taking cognizance’ is interpreted to mean ‘taking legal notice of the matter and the Magistrate applying his mind to the suspected commission of the offence’. The question raised for consideration is whether the Magistrate by referring the petition before him to the police has failed to take cognizance of the complaint.

    10. Chapter XIV, Criminal P.C, deals with information to the police and their powers to investigate. Section 155 relates to the information in non-cognizable cases and prohibits the police officer from investigating into a non-cognizable case without the orders of a Magistrate. Section 156 deals with investigation into cognizable cases and Cl. (3) enables the Magistrate, empowered under S. 190, to order such investigation. The complaint in the present case comprises allegations constituting both cognizable and non-cognizable offences and the Magistrate has evidently referred the petition for investigation as it disclosed a cognizable offence also. In such a case, the reference to the police to do what independently of the Magistrates they have the power to do but which they might not have done i.e to investigate a cognizable offence, has only reference to a stage previous to that of taking cognizance of the offence. On the other hand a Magistrate may take cognizance under S. 190(1)(a), Criminal P.C of an offence upon receiving complaint of facts which constituted an offence; Chapter XVI of the Code provides the procedure regarding complaints to Magistrate. Under S. 200 of the Code, a Magistrate taking cognizance of an offence, shall at once examine the complainant on oath, and the terms of S. 200 imply that the Magistrate should have taken cognizance of an offence before he proceeds to examine the complainant on oath. In a recent decision of the Supreme court ‘R.R Chari v. State Of Uttar Pradesh’, A.I.R (38) 1951 SC 207 Kania C.J referred with the approval to the statement of Das Gupta J. in ‘Supdt. & Remembrancer of Legal Affairs West Bengal v. Abani Kumar Banerjee’, A.I.R (37) 1950 Cal 437 thus.

    “When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter (Chapter XVI) but for taking action of some other kind e.g ordering investigation under S. 156(3) or issuing a search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence.”

    11. Das Gupta J. observes in the Calcutta case following the decisions in ‘Dr. Robiul Hossain v. K.K Ram’, 82 Cal L Jour 222 and ‘Pulin Behari Ghosh v. The King’, 53 Cal WN 653 that

    “When a petition of complaint is field before a Magistrate, the Magistrate may take cognizance under S. 190(1)(a), Criminal P.C, and proceed to examine the complainant under S. 200 and thereafter proceed according to the subsequent sections of the Code, or in the alternative, may not take cognizance and may instead send it to the police for investigation under the provisions of S. 156(3), Criminal P.C”

    12. It is undisputed that the Magistrate is not bound to take cognizance of an offence merely because a petition of complaint is filed before him; he may straightway dismiss the complaint or send it to the police for investigation. But when he applies his mind and proceeds to examine the complainant under S. 200, Criminal P.C, he is deemed to have taken cognizance of the complaint. In such a case he must proceed further as indicated in the subsequent sections of Chapter XVI. In the present case, the fact that the Magistrate has taken judicial notice of, and applied his mind to, the contents of the complaint, is reflected in the reason he has recorded for making a reference to the police to the effect that the complaint discloses an offence of a cognizable nature. Before making the reference he has taken the sworn statement of the complainant which must necessarily have been done under S. 200, Criminal P.C The action under S. 200 implies that the Magistrate had taken cognizance of the complaint. The procedure thus adopted by the Magistrate in having referred the matter to the police for investigation after recording the sworn statement should in effect be taken to be under S. 202, Criminal P.C, and not under Ss. 155 and 156 which reference is undoubtedly irregular. The complaint which remained on the file and formed the basis for initiating the proceedings satisfies the requirements of S. 199, Criminal P.C In view of the circumstances of this case under which the Magistrate has examined the complaint, I feel no doubt that he has taken cognizance of the complaint and initiated the proceedings on the complaint of the husband himself. The point, therefore, raised by the learned Advocate is without substance. There remains the question of sentence. The, object of S. 498, Penal Code, is not so much to protect the husband as to inflict punishment on those who interfere with the sacred relation off marriage vide In re, ‘Rathana Padayachi’, ‘17 Cr. L.J 363 at p 364 (Mad.) In the present case, there are no extenuating circumstances to consider the rigorous imprisonment for six months as being severe or excessive.

    13. In the result, I see no reason to interfere with the conviction and sentence passed by the learned trial Magistrate and upheld by the learned Sessions Judge. The revision petition is accordingly dismissed. The petitioner will surrender to bail and undergo the sentence.

    V.S.B
    Revision dismissed.

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    Comments

    Venkataramana, Accused- v. Government Of Mysore
    (Aug 17, 1951)