Kendall, J - (1.)This is an appeal by Jagdamba Prasad, Babu Ram, Ganga Sahai and Uman Shanker against their convictions by the Additional Sessions Judge of Aligarh of an offence under Section 498, I.P.C., and their sentences to various terms of imprisonment under that section. The appeal must be allowed on a legal ground which finds no place in the memorandum of appeal. The appellants were prosecuted by the police as. a result of a report which was made under Section 366-A of the Indian Penal Code, and they were charged under that section. They have however been convicted under Section 498, although no complaint was made by the husbands of the women in respect of whom the offence is said to have been committed as required by Section 199 of the Criminal P. C..
(2.)This difficulty was considered by the learned Additional Sessions Judge, who overruled the objection raised on behalf of the appellants, holding that as there had been a report under Section 366-A, I.P.C., and as the husbands had come forward to give evidence the apparent defect in procedure had been cured. In coming to this decision he relied on the case of Jatra Shekh V/s. Reazat Shekh (1893) 20 Cal 483., and also a recent decision by a, single Judge of this Court. In the case of Empress of India V/s. Kalla (1883) 5 All 233, it was held by a single Judge of this Court that where the accused had been prosecuted for rape, it was not open to the Court to convict him of adultery when no complaint of adultery had been made by the husband. In the course of that decision Straight, J., remarked: It by no means follows as a necessary consequence-, that because a husband may wish to punish a person who has committed rape upon his wife, that is, who has had connexion with her against her consent, he will desire to continue proceedings when it turns out that she has been a willing and consenting party to the act.
(3.)The same process of reasoning applies where a report has been made of abduction and the offence found to have been commmitted is not abduction but only the minor offence under Section 498 of the Indian Penal Code. In Section 238 of the Criminal Procedure Code it has been laid clown that where a person is charged with a major offence but the evidence only proves, the commissions of a minor offence, he may be convicted of the minor offence although he is not charged with it. But in Clause (3) an exception is made to this general rule, namely: Nothing in this section shall be deemed to authorise a conviction of any offence referred to in Section 198 or Section 199 when no complaint has been made as required by that section.