A. R. BAKSHI, N. G. SHELAT, J. ( 1 ) THIS application is directed against an order passed on 31 by Mr. R. N. Desai Judicial Magistrate First Class Palanpur in Criminal Case No. 613 of 1965 whereby the applicant-accused came to be committed under sec. 213 of the Criminal Procedure Code to the Court of Sessions at Palanpur in respect of the charges leveled against him under secs. 366 497 and 498 of the Indian Penal Code. ( 2 ) THE opponent No. 1 was married with one Jayaben about 8 or 9 years ago and they have four children. The accused-applicant was living in the same mohalla in Palanpur where they were living and it appears that the accused developed some intimacy with Jayaben. He used to visit her house even during the absence of her husband inspite of his being asked not to visit his house. On the evening of 29-7-65 when he returned home from his shop he did not find his wife and on inquiry he learnt about the opponent No. 1 having taken her away towards Udaipur side by giving her false promises of bringing happiness by marrying with her etc. On those allegations he filed a criminal complaint against the accused-applicant for offences under secs. 497 and 498 of the Indian Penal Code in the Court of the Judicial Magistrate First Class at Palanpur. The evidence led by the complainant in the case disclosed prima facie about the accused having abducted her by deceitful means for the purpose of having sexual intercourse and having committed adultery with her without his consent or connivance so as to be liable for offences under secs. 366 497 and 498 of the Indian Penal Code. Since the offence under sec. 366 of the Indian Penal Code was exclusively triable by Court of Sessions at Palanpur he committed him to that Court under sec. 213 of the Criminal Procedure Code. It is against that order of commitment that the accused has preferred this application in this Court. ( 3 ) OF the various contentions raised in the application the one which was urged by Mr. Sheth the learned advocate for the applicant was that the learned Magistrate had no jurisdiction to frame a charge for an offence of adultery punishable under sec. ( 3 ) OF the various contentions raised in the application the one which was urged by Mr. Sheth the learned advocate for the applicant was that the learned Magistrate had no jurisdiction to frame a charge for an offence of adultery punishable under sec. 497 of the Indian Penal Code and then again to commit the accused to stand his trial in the Court of Sessions along with other two charges in absence of any valid complaint required to be made to the Magistrate by the complainant under sec. 199 of the Criminal Procedure Code. According to him the complaint before the learned Magistrate much though it discloses sec. 497 of the Indian Penal Code under which the accused was sought to be prosecuted nowhere sets out any facts which constitute an offence of adultery contemplated under rec. 497 of the Indian Penal Code. The other point raised was that since adulterous intercourse with Jayaben was said to have taken place either at Udaipur or at Bombay and not within the territorial jurisdiction of the Court of the Magistrate it had no jurisdiction to try or commit the accused for that offence to the Court of Sessions at Palanpur as the offence of adultery was independent and again complete by itself and consequently it was said that the order of commitment of the accused to the Court of Sessions to stand his trial in respect of that offence would be bad in law and is liable to be quashed under sec. 215 of the Criminal Procedure Code. Now as provided in sec. 215 a commitment once made under sec. 213 by a competent Magistrate. . . . . . . . . can be quashed by the High Court only and only on a point of law. It would be therefore necessary to consider the question as to whether the commitment of the accused to stand his trial in the Court of Sessions in respect of an offence under sec. 497 is not valid so as to have the same quashed. ( 4 ) NOW it may be mentioned at the outset that the complaint makes allegations constituting an offence under sec. 498 and consequently there is nothing wrong in respect of that charge. 497 is not valid so as to have the same quashed. ( 4 ) NOW it may be mentioned at the outset that the complaint makes allegations constituting an offence under sec. 498 and consequently there is nothing wrong in respect of that charge. It is equally clear and over which there can be no dispute that if the evidence disclosed in a complaint before the Magistrate any other offence not referred to as such therein a charge can no doubt be framed against the accused for that offence and if that offence is triable only by the Court of Sessions the Magistrate has to commit the accused to the Court of Sessions. In that event it is equally clear that if any other charges are framed though they are triable by the Magistrate himself he can be committed in respect of those offences as well along with the other charge triable exclusively by Court of Sessions. Thus the learned Magistrate was justified in law to commit the accused to the Court of Sessions for the offences under secs. 498 and 366 of the Indian Penal Code. Even he would be justified to commit him in respect of the charge under sec. 497 if it were otherwise proper in the sense that it complied with the provisions contained in sec. 199 of the Criminal Procedure Code and also had jurisdiction to try or commit the same to the Court of Sessions at Palanpur. ( 5 ) BEFORE going to sec. 199 of the Criminal Procedure Code we would refer to sec. 190 of the Criminal Procedure Code which relates to the cognizance of offences that can be taken by the Magistrates. Clause (1) thereof proceeds by saying that Except as hereinafter provided any Presidency Magistrate and any Judicial Magistrate specially empowered in that behalf under sec. 37 may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; Then there are two other clauses (b) and (c) with which we are not concerned in the present case. The cognizance of an offence has therefore to be taken by the Magistrate subject to the other provisions provided in the Criminal Procedure Code. In that would come sec. 199 which provides as under:no Court shall take cognizance of an offence under sec. 497 or sec. The cognizance of an offence has therefore to be taken by the Magistrate subject to the other provisions provided in the Criminal Procedure Code. In that would come sec. 199 which provides as under:no Court shall take cognizance of an offence under sec. 497 or sec. 498 of the Indian Penal Code except upon a complaint made by the husband of the woman; or in his absence made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed. With the proviso thereto we are not concerned in the present case. It follows therefrom that the Magistrate can take cognizance of an offence of adultery under sec. 497 or enticing or taking away a married woman under sec. 498 of the Indian Penal Code provided there is a complaint made by the husband of the woman concerned As already stated above the complaint in respect of an offence under sec. 498 is proper and there is no dispute in that respect. It also refers to sec. 497 of the Indian Penal Code but that is said to be not enough compliance of sec. 199 of the Criminal Procedure Code. The contention made out by Mr. Sheth was that the mere mention of sec. 497 in the complaint cannot be enough to say that the Court was competent enough to take cognizance of that offence as according to him there was no complaint as such in respect of the said offence as required in law. In order to appreciate what is meant by the term complaint used in sec. 199 of the Criminal Procedure Code we have to turn to sec. 4 (1) (h) of the Criminal Procedure Code which defines the term complaint as meaning the allegations 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. The term offence has also been defined in sec 4 (1) (c) as meaning any act or omission made punishable by any law for the time being in force. We have to give effect to the use of those terms used in sec. The term offence has also been defined in sec 4 (1) (c) as meaning any act or omission made punishable by any law for the time being in force. We have to give effect to the use of those terms used in sec. 199 and on the basis of their definitions given under the Code it must be said that the complaint must disclose allegations showing that the person sought to be charged with adultery has committed an act of sexual intercourse with the complainants wife without his consent or connivance as required under sec. 497 of the Indian Penal Code and further that those allegations constituting that offence are made with a view to take action against him under the Code. Those allegations may be oral or in writing before the Magistrate. It is only then that the Magistrate becomes entitled to take cognizance of an offence under sec. 497 of the Indian Penal Code. The words cognizance of an offence in sec. 199 if read along with clause (a) of sec. 190 (1) of the Criminal Procedure Code and then again having regard to the definition of the term offence in sec. 4 (1) (c) we feel no doubt whatever that the complaint must set out facts which constitute an act on the part of the accused and that act must be one made punishable by law for the time being in force viz. under sec. 497 of the Indian Penal Code as in the present case. ( 6 ) IT was urged by Mr. Vin the learned advocate for opponent No. 1 as also by Mr. Nanavati the learned Assistant Govt. Pleader for the State that all that sec. 199 requires is a complaint from the husband of the woman in respect of whom the offence of adultery is said to have been committed and if such a complaint is made to the Magistrate and also when it refers to the provision of law viz. under sec. 497 of the Indian Penal Code under which the accused is sought to be prosecuted it should be taken as enough compliance of a complaint made by the husband in respect of that offence and even if any such omission in setting out certain facts in that respect has been made it would amount to nothing more than an irregularity in the complaint curable under sec. 537 (a) of the Criminal Procedure Code provided that there is no prejudice caused to the accused. Now it is well-settled in view of sec. 199 of the Criminal Procedure Code that a complaint in respect of an offence of adultery alleged to have been committed by the accused must be made by the husband of that woman with whom he is said to have committed adultery and absence thereof would take away the jurisdiction of the Court of the Magistrate in proceeding therewith and in case the accused happens to be committed to the Court of Sessions in respect of the offence one can easily say that the order of commitment in that respect would be bad in law. In a case of Emperor v. Isap Mahomed I. L. R. 31 Bombay 218 the accused was tried on charge under secs. 363 (kidnapping from lawful guardianship) and 366 (kidnapping a woman) of the Indian Penal Code. At the conclusion of the evidence the Court added a charge under sec. 498 (enticing a married woman) of the Indian Penal Code notwithstanding the objection raised by the counsel of the accused. The accused came to be convicted in respect of all the charges including the one under sec. 498 of the Indian Penal Code. In an appeal filed by the accused it was contended that the procedure adopted was contrary to the provisions of sec. 199 and to the spirit of sec. 238 of the Criminal Procedure Code. Apart from the procedure being found not regular the Division Bench of the High Court of Bombay held in that case that the conviction under sec. 498 of the Indian Penal Code was bad in law in absence of any complaint made by the husband of the woman in respect of whom the offence was committed. The same view was taken in a case of Emperor v. Imankhan Rasulkhan 14 Bom. L. R. 141. In that case the accused was charged in the first instance with offence under secs. 366 and 379 of the Penal Code. At the beginning of the inquiry no charge under sec. 498 was formulated against the accused. When the complainant who was the husband of the woman concerned was examined as a witness there were certain statements made in his deposition amounting to an offence under sec. 498 against the accused. 366 and 379 of the Penal Code. At the beginning of the inquiry no charge under sec. 498 was formulated against the accused. When the complainant who was the husband of the woman concerned was examined as a witness there were certain statements made in his deposition amounting to an offence under sec. 498 against the accused. Finally the Court considering the evidence acquitted the accused on charges under secs. 366 and 379 but convicted him of an offence under sec. 498 of the Indian Penal Code. In appeal the Division Bench of the High Court of Bombay held that the Court could not take cognizance of the offence under sec. 498 as there was no complaint by the husband and the statements in the husbands deposition as a witness could not be said to be a complaint within the meaning of clause (b) of sec. 4 of the Criminal Procedure Code. This latter case disposes of an argument about the deposition of the complainant in this case for being taken in the nature of a oral complaint contemplated under sec. 4 (1) (h) of the Criminal Procedure Code. In fact almost all the High Courts have taken the view that the Court cannot take cognizance of the offence under sec. 497 or 498 in absence of a complaint by the husband and further that the statements in the husbands deposition as a witness could not be taken as a complaint within the meaning of sec. 4 (1) (h) of the Criminal Procedure Code. Apart from the authorities on the point the definition of the term complaint makes that position absolutely clear when it says that the complaint means allegations made orally or in writing before the Magistrate with a view to his taking action under this Code against certain person having committed the offence. In other words a complaint either oral or in writing must precede the cognizance of the offence being taken by a Magistrate by reason of sec. 190 (1) (a) of the Criminal Procedure Code which obviously has been subject to sec. 199 of the Criminal Procedure Code. The deposition of the complainant therefore being subsequent to the cognizance of an offence being taken by the Magistrate cannot serve the purpose of being called a complaint as defined under sec. 4 (1) (h) of the Criminal Procedure Code. 199 of the Criminal Procedure Code. The deposition of the complainant therefore being subsequent to the cognizance of an offence being taken by the Magistrate cannot serve the purpose of being called a complaint as defined under sec. 4 (1) (h) of the Criminal Procedure Code. ( 7 ) TURNING now to the complaint we find no allegation whatever to show that the accused had committed sexual intercourse with his wife as required under sec. 497 of the Indian Penal Code. The allegations in the complaint relate to the accused having come in close contact with his wife at Palanpur and then his having enticed her away and left Palanpur for the purpose of having sexual intercourse with his wife. These allegations would no doubt be enough for an offence under sec. 498 of the Indian Penal Code but certainly they will not go to suggest much less show that the accused was sought to be prosecuted for his having committed adultery with his wife so as to be punishable under sec. 497 of the Indian Penal Code. In this connection it was attempted to be urged by Mr. Nanavati the learned Assistant Govt. Pleader for the State that sec. 199 should be liberally construed and that the recitals in the complaint should be so considered that having regard to the purpose for which he had actually taken his wife away from Palanpur read with a reference to this section dealing with the offence of adultery as sufficient compliance under sec. 199 of the Criminal at Procedure Code. We do not agree with that suggestion much though we feel inclined to think that such provisions of law no doubt should be liberally construed. In our opinion however a mere mention of a section for which the accused is sought to be prosecuted cannot be enough unless the allegations set out in the complaint refer to the act constituting an offence under any law. What one has to look therefore is as to whether on a broad reading of the complaint it gives a clear indication that the set of facts mentioned therein disclose the offence under sec. 497 of the Indian Penal Code. We cannot go to the length of saying as Mr. What one has to look therefore is as to whether on a broad reading of the complaint it gives a clear indication that the set of facts mentioned therein disclose the offence under sec. 497 of the Indian Penal Code. We cannot go to the length of saying as Mr. Nanavati wanted us to go that since the accused had enticed away the wife of the complainant and since both of them lad left Palanpur for going towards Delhi on the night of 29-7-65 they must have necessarily gone for that purpose to an extent that the accused had actually committed adultery with her in the sense that he bad sexual intercourse with her. Enticing away woman or taking away a woman for a purpose such as of having sexual intercourse with her constitute certain type of offences and for that the accused is committed to the Court of Sessions by the learned Magistrate. But an offence of adultery punishable under sec. 497 of the Indian Penal Code is a distinct offence and the person who commits adultery has got to be shown that he had sexual intercourse with that woman knowing or having reason to believe her to be the wife of another person without the consent or connivance of that man. The act that becomes punishable under law viz. under sec. 497 of the Indian Penal Code is an act of adultery with the wife of the complaint and it is only in respect of that act which amounts to an offence that a complaint from her husband is essential as required under sec. 199 of the Criminal Procedure Code. The allegations in the complaint therefore must point at that act as having been committed by the accused in respect of the wife of the complainant. Absence of those allegations would render that complaint no good so as to say that it complies with the provisions contained in sec. 199 of the Indian Penal Code much though it does comply with regard to an offence punishable under sec. 498 of the Indian Penal Code. We are not referred to any authority saying that a mere reference to the section under which the accused is sought to be prosecuted would be enough compliance under sec. 199 of the Criminal Procedure Code. 498 of the Indian Penal Code. We are not referred to any authority saying that a mere reference to the section under which the accused is sought to be prosecuted would be enough compliance under sec. 199 of the Criminal Procedure Code. However on the other hand a reference was made to a case of Sain v. Emperor A. I. R. 1934 Lahore 945. In that case a complaint was filed in the Court of the Additional District Magistrate of Sialkot against Sain and others alleging that they had abducted his wife Paro and that Sain had been having sexual intercourse with her against her will knowing that she was his wife. At the trial Viru gave evidence that Sain had seduced his wife has had children by her and that he was now residing with her in Sialkot City. On those facts the trying Magistrate framed charges against Sain under secs. 497 and 498 of the Indian Penal Code and convicted him for the same. In appeal the order of conviction and sentence passed against him under sec. 497 alone was upheld. In a revision filed before the High Court by the petitioner it was contended that a trial was illegal for want of a complaint by the husband without which under the provisions of sec. 199 of the Criminal Procedure Code no Court had jurisdiction to take cognizance of an offence under sec. 497 of the Indian Penal Code. It was held that the complaint made by Viru contained the allegations which covered all the ingredients necessary for a conviction under sec. 497 that is to say marriage between bit. Taro and Viru sexual intercourse between Mt. Taro and the accused without Virus consent or connivance and knowledge on the part of Sain that Mt. Taro was Virus wife. The complaint however did not mention sec. 497 but it referred to only secs. 366 and 368 in the heading of the complaint. On those facts it was held that for the purpose of sec. 199 of the Criminal Procedure Code the complaint need not specify precisely the section under which the accused is to be charged so long as it sets forth matter which if proved would warrant a conviction and a desire is expressed that the accused be punished for what he has done. In other words what was contemplated under sec. 199 of the Criminal Procedure Code the complaint need not specify precisely the section under which the accused is to be charged so long as it sets forth matter which if proved would warrant a conviction and a desire is expressed that the accused be punished for what he has done. In other words what was contemplated under sec. 199 of the Criminal Procedure Code was to prevent Magistrates inquiring of their own motion into cases connected with marriage unless the husband or other person authorised moves them to do so. Thus what is considered essential is the allegations made in the complaint which constitute an act amounting to an offence under any law and a mere mention of a section for which he is sought to be liable cannot therefore be enough to say that it complies with the provisions contained in sec. 199 of the Criminal Procedure Code. It appears therefore clear that the present complaint nowhere sets out facts which constitute an offence of adultery as contemplated under sec. 497 of the Indian Penal Code and when that is so it does not amount to a complaint which is required to be made by reason of sec. 199 of the Criminal Procedure Code. The complaint filed in the Court of the learned Magistrate was therefore no valid complaint in respect of an offence under sec. 497 of the Indian Penal Code so as to entitle him to take cognizance and proceed further and then commit the accused to stand his trial in the Court of Sessions in respect of that offence with two other offences punishable under sec. 366 and 498 of the Indian Penal Code. ( 8 ) IT was urged that want of a reference about the act of adultery said to have been committed by the accused with the complainants wife in the complaint can at best be said to be an omission or irregularity in the complaint and that way having regard to clause (a) of sec. 537 of the Criminal Procedure Code it is curable since it has occasioned no failure of justice and no prejudice to the accused. We have taken the view that the complaint before the learned Magistrate does not set out any facts or make any allegations which constitute an act and that way an offence punishable under sec. 537 of the Criminal Procedure Code it is curable since it has occasioned no failure of justice and no prejudice to the accused. We have taken the view that the complaint before the learned Magistrate does not set out any facts or make any allegations which constitute an act and that way an offence punishable under sec. 497 of the Indian Penal Code and that therefore it serves no compliance with the provisions contained in sec. 199 of the Criminal Procedure Code. It is not a case of an omission of some details in the complaint in respect of an offence for which the accused is sought to be prosecuted. But when it does not amount to a complaint as required in law it takes away the jurisdiction of the Court in taking cognizance in respect of that offence punishable under sec. 497 of the Indian Penal Code. When that is so it cannot be taken to be a case of an omission or irregularity in the complaint and the question of curability under sec. 537 much though that may not have occasioned any failure of justice cannot arise. In our view therefore sec. 537 (a) of the Criminal Procedure Code cannot help the opponents in the case. In this view of the matter the other point relating to the question of the jurisdiction of the Court in trying the accused for an offence under sec. 497 of the Indian Penal Code would not survive. ( 9 ) THE order of commitment made by the learned Magistrate in so far as it relates to the offence under sec. 497 of the Indian Penal Code is concerned shall be set aside and that the rest of the order of commitment of the accused in respect of the other offences shall stand. Order accordingly. .