BASHIR MOHAMMAD Vs. PEER KHAN

JUDGEMENT

(1.) THE brief facts of this case are that accused Mst. Jannat is the married wife of complainant Peer Khan. She had been married to him some 15 years ago. Subsequently Peer Khan fell ill and was admitted to Baran Hospital. Accused Bashir Mohammed, brother of Peer Khan, developed illicit connection with Mst. Jannat during the illness of her husband. Jannat started living with Bashir. Peer Khan, therefore, made a complaint in the court of Sub-Divisional Magistrate, Baran, under sections 497 and 498, I. P. C. , THE Sub Divisional Magistrate by his order, dated November 6, 1970, discharged accused Bashir Mohammad and Mst. Jannat. A revision petition was presented to the court of Additional Sessions Judge, Baran, against the above order. THE relevant portion of the order of learned Additional Sessions Judge runs as below.- "this evidence is sufficient for proceeding with the accused persons under section 498, I. P. C. because from this evidence a prima facie case is made out against both the accused persons. " Both Mst. Jannat and Bashir Mohammad felt aggrieved against the above order and have taken this revision application in this Court. THE revision-petition was admitted only in respect of Mst. Jannat.

(2.) THE only legal point which merits consideration is whether Mst. Jannat can be held liable for the offence under S. 498, I. P. C. In the case of adultery it is distinctly enacted in S. 497, I. P. C. , that a wife is not punishable as an abettor. It is, therefore, inconsistent to punish her as an abettor of the minor offence under S. 498, I, P. C. See in Re:balambal (1 ). Abetment can, as given is S. 107, I. P. G. , be constituted (1) by instigating a person to commit an offence; or (2) by engaging in a conspiracy to commit it; or (3) by intentionally aiding a person to commit it. Abetment implies a certain degree of activity in the abettor. Enticement denotes a state of passivity on the part of the woman and as such none of the ingredients of S. 107, I. P. C. , is likely to be attracted.