The Judgment of the Court was as follows:—
Two Petitioners have been convicted under sec. 498 of the Indian Penal Code and each has been sentenced to pay certain fine. The charge against them was that they concealed or detained Rajia Bibi, wife of the complainant, with intent that she might have illicit intercourse with some person. The ground pressed in this Rule is that there being no evidence of detention or concealment the conviction cannot stand. The woman has been found to be aged about 36 and there was some question raised about claims as to her property. The findings of fact are that she had left her husband's house and was found to be in the house of the Petitioner Maularakha and that she was visited there by the other Petitioner Mobarak. From the circumstances, the Courts below have drawn the inference that “Rajia clearly had no motive other than an immoral one to leave her husband.” She herself deposed in favour of the defence. The evidence does not make out a case of concealment at all. The question is whether “detention” has been proved as against either of the Petitioners. The word “detains” has been sought to be explained in some cases. In my judgment, the words “conceals or detains” in the second part of sec. 498 of the Indian Penal Code have to be explained with reference to the words “takes or entices away” occurring in the first part of that section. In all these cases whether there was consent on the part of the woman or not is not material. So far as the word “detains” concerned, it seems to me that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she liked to do so. This is consistent with the decided cases to which I have been referred, namely, Hossaini Methor… v. Emperor (2), an unreported judgment of this Court in Criminal Revision Case No. 618 of 1935; and Emperor v. Mahiji Fula…(Accused)* (3). The learned Advocate for the other side has drawn my attention to a case of the Patna High Court, Banarsi Raut… v. Emperor (4). But there also the decision was based on the question whether there was such an inducement or persuasion of the woman as would, come within the meaning of the word “detention.” It seems to me that the facts found in this case do not show that the woman was not a free agent. Therefore, the charge against the two Petitioners cannot be said to have been proved.
The convictions therefore must be set aside and the fines, if paid, will be refunded.
C.C