JUDGMENT G. Kumar, J. - Tej Singh appellant and seven others were sent up to stand their trial under Sections 366, 368, 376, 147 and 3231149 I.P.C. However, the Sessions Judge acquitted all the accused of those charges but convicted the appellant under Section 497 I.P.C. and sentenced him to undergo one years rigorous imprisonment. 2. The facts giving rise to this case are simple. P.W. 3 Smt. Bhagwati, aged about 19 years, is the wife of P.W. 2 Chandrasen, aged about 25 years. They were married about ten years before the occurrence, but they have had no issue. The appellant was distantly related as maternal-uncle to P.W. Chandrasen. The appellants wife had admittedly died three or four years ago, but his mother has been living with him. P.W. 3 Smt. Bhagwati was on visiting terms with the accused. About a month before the occurrence she had gone to his home. On that occasion the appellant had proposed his marriage with her, which was not liked by the latter, with the result that she sent a message to her husband and went back with him. 3. On the evening of August 25, 1961 P.W. 2 Chandrasen, P.W. 3 Smt. Bhagwati, and P.Ws. Tota Ram, Angan Lal and Kunwarsen were all returning from village Manpur after plucking chillies from their fields. As the party reached near the field of Shabbir in village Manpur, the appellant and his other co-accused (since acquitted) as well as three or four unknown presons, sprang out of a full grown chari field, captured Smt. Bhagwati and dragged her into the aforesaid field. Her husband Chandrasen caught her by the hand, but the appellant is said to have inflicted a lathi blow on him and snatched away the woman. She remained with the appellant and his companions for about four days. On August 26, 1961 Chandrasen lodged a report at the thana at 6.5. a.m. The police recovered the woman from a machan in village Kundanpur on the morning of August 28, 1961 in the company of the appellant who was put under arrest. The petticoat and Dhoti of the woman and the under-wear of the appellant were sent to the Chemical Examiner, who* found spermotozua on all the three clothes. The appellant and the other suspects were challaned and were committed to the court of Session by the Magistrate concerned. 4. The petticoat and Dhoti of the woman and the under-wear of the appellant were sent to the Chemical Examiner, who* found spermotozua on all the three clothes. The appellant and the other suspects were challaned and were committed to the court of Session by the Magistrate concerned. 4. As already observed, P.W. 2 Chandrasen, the husband of the woman, had lodged a report at the police-station but had not filed any complaint against the appellant. It is note-worthy that at the trial he was only charged with offences under Sections 366, 368, 376, 147 and 3231149, I.P.C. The appellant was, however, not called upon to meet the specific charge under Section 497, I.P.C. 5. The appellant pleaded not guilty and stated that Smt. Bhagwati used to visit him from before and that she was willingly living with him at his house. 6. The learned Sessions Judge disbelieved the theory of abduction of P.W. Smt. Bhagwati as portrayed by the prosecution. Likewise, he rejected the allegation of rape, based on the solitary statement of the woman, corroborated by the discovery of spermotozua on the under-wear of the appellant as well as the petticoat and dhoti of Smt. Bhagwati. But in his judgment the learned Sessions Judge found that in any case a charge under Section 497, I.P.C. had clearly been made out against the appellant and convicted him accordingly. Evidently he had not granted any opportunity to the appellant to show cause why he should not be convicted under Section 497, I.P.C. 7. It has strenuously been argued before me by the learned counsel for the appellant that inasmuch as Chandrasen (P.W. 2), had not filed a complaint, as provided by Section 199, Cr.P.C. for taking action against the appellant under Section 497, I.P.C., the court below was not competent to take cognizance of the same and to punish the appellant under Section 497, I.P.C. The provisions of Section 199, Cr.P.C. are quite clear on the point and bar the jurisdiction of a Court to take cognizance of an offence under Section 497, I.P.C. except on a complaint made by the husband. As already observed, P.W. 2 Chandrasen, husband of Srimati Bhagwati, had only lodged a report at the police-station under Sections 366, 323 and 147, I.P.C. but had not filed a complaint before the Magistrate concerned for taking action against the appellant under Section 497, I.P.C. The word complaint has been defined in Section 4(h), Cr.P.C. as follows: "complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police-officer". 8. In the instant case the husband had only lodged a report at the police-station and it was the police-officer who had challaned the case and taken subsequent action in the matter. Under the circumstances, the mere fact that P.W. Chandrasen had lodged the first information report and had also appeared as a witness at the trial does not mean that it was he who had lodged the complaint before the Magistrate for taking action in the matter. In support of his contention, Mr. B. C. Saxena, learned counsel for the appellant, has relied upon the following cases :- (1) Empress v. Kallu, I.L.R. V Alld. 233. (2) Empress v. Kangla, I.L.R. XXIII Alld. 82. (3) Chemon .Caro v. Emperor, I.L.R. XXIX Cal. 415 (D.B.). (4) Emperor v. Imankhdn Rasul Khan, Cr.L. J. Bom. XIII 287. (5) Jagdamha. Prasad and others v. Emperor, A.I.R. 1933 Alld. 626. (6) Haider Ali v. Emperor, A.I.R. 1940 Alld. 201. 9. On the other hand, the learned counsel for the State has urged that the word complaint should be liberally construed and inasmuch as P.W. 2 Chandrasen had followed up his F.I.R. appearing as a witness at the trial, he should be deemed to have filed a complaint against the appellant. He has relied upon the following cases which go to lay down that if after filing a first information report, the husband has appeared as a witness and has pressed for necessary action against the accused, it I may be taken that he had filed a complaint before the Magistrate, as required by Section 199, Cr.P.C. :- (1) Jatra Shekh v. Reazat Shiekh and another, XX I.L ,.R. Cal. 483. (2) Tara Prosad Laha. v. Emperor, XXX I .L.R. Cal. 910 (F.B.). (3) Bhawani Dutt v. Emperor, A.I.R. 1916 Alld 307. 10. 483. (2) Tara Prosad Laha. v. Emperor, XXX I .L.R. Cal. 910 (F.B.). (3) Bhawani Dutt v. Emperor, A.I.R. 1916 Alld 307. 10. All the aforesaid five cases of this Court were decided by single Judges. Unfortunately, in the latter cases of this Court, viz. Jagdamha Prasad and others v. Emperor, A.I.R. 1933 Alld. 626 and Haider Ali v. Emperor, A.I.R. 1940 Alld. 201, the earlier case of this Court in Bhawani Dutt v. Emperor, A.I.R. 1916 Alld. 307 was not noticed. 11. The question whether in a case I where the husband has lodged a report I with the police but has not filed a complaint before the Magistrate for action being taken under Section 497, I.P.C., the accused can be punished for that offence, if a case under Section 497, I.P.C. is made out against him at the trial? is of some importance and may occur in many other cases. It appears to be proper that the matter should be decided finally by a Division Bench of this Court. Let this case be placed before the Hon'ble the Chief Justice for necessary orders. Gyanendra Kumar, J. (February 13, 1964).-In view of the decision of the Division Bench on the reference made by me, there was no complaint by the husband before the Magistrate for action being taken under Section 497, I.P.C., as such the appellant could not have been punished for that offence by the learned Sessions Judge. 12. In the result, the appeal is allowed and the conviction and sentence of the appellant are set aside. The appellant is on bail. He need not surrender to his bail bonds, which are hereby discharged.