RUDRAPPA Vs. BASAPPA

JUDGEMENT

(1.) This revision by the accused Nos. 1 and 3 in C.C. No. 38 of 80 on the file of the Munsiff & J.M.F.C. Harapanahalli, is directed against the order dated 6-2-1980, of issue of process against them for the offence under Section 498, I.P.C.

(2.) That was a case instituted on a private complaint. In the first instance, when the respondent made a complaint before the magistrate alleging the commission of the offence under S. 498 IPC against the petitioners and two others, the learned Magistrate without taking cognizance of the offence referred the complaint to the Police for investigation as provided under Section 156(3) Cr.P.C. On receipt of the complaint, the Police registered a case in Crime No. 18 of 79 and issued F.I.R., to the Court and took up investigation. After completing the investigations, the Police submitted a 'B' Summary Report. It appears the complainant protested the acceptance of the 'B' Summary Report. The learned Magistrate therefore, after gearing the Advocate appearing for the complainant, proceeded to record the sworn statement of the complainant and two witnesses examined by him in support of the complaint and after considering the same as also the investigation papers submitted by the Police, he being of the view that there was a prima facie case as against the two petitioners for the offence under Section 498, directed to issue process. It is the correctness of said order of issue of process that is sought to be challenged in this revision petition.

(3.) It may be mentioned here that in the complaint made to the Magistrate, the wife of the complainant, who was said to have been abducted from the house of the complainant, was also arrayed as A-2. One other person in whose house A-2 was found residing was arrayed as A-4. The allegations in the complaint are : though the complainant suspecting illicit intimacy between A-1 and his wife - A-2, had warned A-1 not to visit is house, but on a particular day, when he was absent from the house, A-1 and A-3 went to his house, and enticed away is wife from his house and took her in a bus towards Itigi, detained in the house of A-4, and all attempts made by him to bring her back had failed. In fact A-2 was refusing to go back to his house. But there is absolutely nothing in the statement of the complainant to show that she had been enticed away from the house; on the other hand his own say was that she left the house saying that she would go to the house of her parents. Of the two witnesses examined by the complainant, P.W. 3 claims to have seen A-2 going with A-1 and A-3 in the bus bound to Itigi. There is nothing in his evidence to show that A-2 also left the house with A-1 and A-3, who were earlier allegedly seen going to her house in the absence of the complainant. However, both, P.Ws. 2 and 3, stated that when ultimately she was found in the house of A-4 and was asked to go to her husband's house she refused to go. Thus, there is absolutely nothing in the sworn statement of the complainant and the witnesses that A-2 was enticed to leave the house. On the other hand, the allegations in the complaint and sworn statement of the complainant and the witnesses showed that A-2, who was a grown up woman and mother of 5 children had left the house of her own, may be because she had illicit intimacy with A-1, which the complainant was suspecting. Neither the complainant nor the witnesses say that A-2 was taken or enticed away from the house with the intention of having sexual intercourse with her on concealing or detaining her against her will. As a matter of fact, the statement to which a reference is made showed that A-2 herself refused to go back to the house of her husband. Therefore, none of the ingredients of the offence under S. 498 were present. Thus, if the learned Magistrate having refused to accept the 'B' summary report, was wrong in referring to the Police statement while directing to the issue of process, the facts stated in the complaint and statements of the complainant and the two witnesses did not disclose the offence under Section 498, I.P.C.