JUDGMENT 1. This is an appeal by two accused who have been convicted on a unanimous verdict under Ss. 366 and 498, Penal Code. 2. The girl in question Padmabati Debi is evidently somewhat near the borderline age of 16. The learned Judge has dealt with the alternative charges against the accused of kidnapping and abduction. We may note that the alternatives are framed in one charge and that it is desirable that there should be separate charges in the alternative for these offences. The special features of the case are (1) that the girl's own relations did not bring the matter to the notice of the police. This was done by one Ambika Charan Mondal, a local school master, and this some seven days after the alleged occurrence; (2) that the girl when examined by the investigating officer told him that she had been having intercourses with the two accused and had left the house of her husband's brother Adhir at night by arrangement with them. 3. According to the learned Judge's charge, the learned lawyer at first submitted that the defence case was that the girl had been raped by relations of one Sk. Golap (P. W. 3); but at a subsequent stage it was stated on behalf of the defence that she was carrying on an intrigue with the accused and had voluntarily eloped with them, that the girl had given false evidence in Court and the statement made to the investigating officer recorded by him represented the whole truth. 4. So far as the question of age is concerned, the principal witness is Capt. Mukherjee. Our criticism of the learned Judge's charge in this respect is that he has failed to point out that if the evidence of this witness is carefully examined he has not in fact really deposed that the girl is under 16 years of age. All he has stated is that the girl is between 15 and 16 years of age and he has qualified this with an admission In our opinion we fix the age as between 15 and 16 or like that. There may be 1 to 3 months more or less but not to the extent of 6 months. All he has stated is that the girl is between 15 and 16 years of age and he has qualified this with an admission In our opinion we fix the age as between 15 and 16 or like that. There may be 1 to 3 months more or less but not to the extent of 6 months. This seems to us to amount to an admission that the girl might be anything upto 16 years and five months odd or some five months below the age of 15. The ambiguity in the evidence perhaps to some extent may be due to the fault of cross-examining lawyer, but in view of the fundamental importance of the question of age it was the duty of the learned Additional Sessions Judge to have obtained the evidence of the witness with the utmost precision and to have had it brought out clearly whether the witness was prepared to stake his opinion that the girl could not be of the age of 16 or over. 5. It will be seen that owing to the fact of the girl's statement to the police the accused were in some difficulty with respect to the two charges of kidnapping and abduction. The girl's statement to the police could be used clearly under S. 162, Criminal P. C., to contradict her statement in Court and would show that she had made a statement which, in our opinion, would entirely exonerate the accused of any guilt on a charge of abduction. The learned Judge in dealing with this matter has, it would seem to us, sought to suggest that the effect of the statement did not go so far as this but in so doing he does not seem to us to have dealt with this correctly. Of course the jury has in fact acquitted the accused on the charge of abduction and has clearly given a verdict that they are guilty of kidnapping. But the manner in which the learned Judge dealt with this statement when discussing the charge of abduction must also have had its effect in regard to the charge of kidnapping. 6. From the point of view of the accused, however, in respect of a charge of kidnapping the girl's statement to the police is of no assistance. It probably does justify a conviction of the accused on the charge of kidnapping. 6. From the point of view of the accused, however, in respect of a charge of kidnapping the girl's statement to the police is of no assistance. It probably does justify a conviction of the accused on the charge of kidnapping. On the other hand, in view of the terms of S. 162, Criminal P. C., and of the relevant sections of the Evidence Act it could not be used as substantive evidence against the accused to establish the charge. The distinction between the effect of the statement in respect of the two charges was not at all brought out to the jury. On the contrary, as we have noted, the learned Judge has stated that it was the clear defence that the statement was true and it was relied upon wholly by the defence. We are not of course aware exactly in what form the learned lawyer for the defence made use of the statement but we have some doubt whether he used precisely in the manner set out in the charge. In any case, it was the learned Judge's duty to point out this important distinction. 7. In view of these points, we think that it is necessary that the accused should be retried on the charge under S. 366 of the Code and that the verdict of the jury cannot be supported. The misdirections of the Judge may have contributed to an erroneous verdict. 8. With regard to the charge under S. 498, Penal Code, the circumstances are slightly peculiar. The proceedings were started, as we have stated, by information laid at the thana by Ambika Charan Mondal. It is in fact stated in his information that the girl's relations were not taking action. The husband himself was at some distant place in the Sunderbans. The husband, however, subsequently appeared in the committing Court when charge-sheet had been submitted and cognizance had been taken by the Court, and deposed. In cross-examination there he said that he had not personally lodged any complaint in Court against the accused with having enticed away his wife and that he had asked his brother Adhir to lodge a complaint to the police. In cross-examination there he said that he had not personally lodged any complaint in Court against the accused with having enticed away his wife and that he had asked his brother Adhir to lodge a complaint to the police. He then added "I am complaining of the enticement today." No charge was framed under S. 498 by the committing Magistrate but when the case came before the Sessions Court, under the directions of the Judge, such a charge was framed. Some brief reference to the matter is made by the learned Judge in his charge to the jury and he apparently relied upon the case in 38 All. 276 Emperor v. Bhawani Dutt ('16) 3 A. I. R. 1916 All. 307 : 38 All. 276 : 32 I. C. 664. In our opinion the learned Judge is not justified in framing this charge. In order that there shall be proceedings under S. 498, Penal Code, it is necessary first that there shall be a complaint by the husband (or otherwise as specified in S. 499, Penal Code) and secondly that a competent Court should take cognizance of the offence. In the present case it is difficult to say that there was even anything which purported to be a complaint by the husband. Proceedings on a charge-sheet were going on under S. 366, Penal Code and in cross examination he was directly challenged on the question as to whether they were continuing with his approval and he stated that they had his approval. He admittedly finally stated that he was then complaining, but it is at least doubtful as to whether it ever amounted to a complaint. In any case, the committing Magistrate took no action whatever on this in any way suggesting that he was taking cognizance of the complaint of an offence under S. 498, Penal Code and in particular he did not frame any charge himself. As far as this Court is concerned the matter is settled by the case in 30 Cal. 910 Tara Prosad Laha v. Emperor ('03) 30 Cal. 910 (F. B.) decided by a Full Bench. In that case the husband lodged information with the police charging the accused with rape. The police sent up the charge-sheet under Ss. 342, 352 and 354, Penal Code. The Magistrate framed charges, however, under Ss. 376, 497 and 498, Penal Code and committed the case to Sessions. 910 (F. B.) decided by a Full Bench. In that case the husband lodged information with the police charging the accused with rape. The police sent up the charge-sheet under Ss. 342, 352 and 354, Penal Code. The Magistrate framed charges, however, under Ss. 376, 497 and 498, Penal Code and committed the case to Sessions. The conviction was set aside by the Full Bench on the ground that there had been no complaint as defined in S. 4 (h), Criminal P. C. There was apparently nothing stated by the husband which could even purport to amount to a complaint, on the other hand, the Magistrate did in fact frame charges under Ss. 497 and 498, Penal Code, in other words, purport to act as though cognizance of a complaint had been taken by him. In the present case, as we have said, our view is that there was in fact nothing that could be called a complaint within the meaning of the definition in the Code of Criminal Procedure and nothing to suggest that the Magistrate considered that there was any such complaint before him on which he could take cognizance nor did he purport to do so. The conviction, therefore, under S. 498, Penal Code, cannot be upheld. If further proceedings are to be taken against the accused on this charge they can only be done after a complaint has been filed to a competent Court by the husband. 9. The result is that we set aside the conviction of the accused under Ss. 366 and 498, Penal Code and direct that they be retried on a charge of kidnapping under S. 366, Penal Code only. 10. In the meantime pending the retrial the accused appellants will remain on the same bail.