JUDGMENT 1. - The accused appellant has been convicted by the learned Sessions Judge, Pali for an offence under section 498, Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default of payment of fine, to further suffer rigorous imprisonment for two months. 2. PW 2 Pukhraj filed a complaint in the court of Munsif and Judicial Magistrate, Jaitaran on September 16, 1975 wherein it was mentioned that the accused appellant was living nearby his house in village Raniwal and was running a shop. He used to visit his house and in the night intervening 13th and 14th September, 1975, when Pukhraj PW 2 was sleeping along with his son and his wife Smt. Kamla was sleeping away, it was noticed at 4.00 a. m. that Kamla was not inside the house and she had left behind a small child who was sleeping with her. It was further mentioned in the complaint that Pukhraj PW 2 came to know from one Jairam and Bastiram that the accused was seen going on a cycle along with his wife. On search of the house, it was noticed that ornaments and other articles were not available. After having made search of the accused and his wife Smt. Kamla, Pukhraj filed the complaint as already stated above. The complaint was forwarded under section 156(3) Cr. P. C. to Police Station Jaitaran where a case was registered and investigation was set in motion. On the information of the accused appellant, under recovery memo Ex. P5. Smt, Kamla was recovered from the house of Asulal situated in Ratanada, Jodhpur, and the ornaments which were missing, were also recovered. After investigation, a charge sheet was filed and the accused was tried by the learned Sessions Judge, Pali, for an offence under section 376, 411, 366, and 497, I. P. C. The defence of the accused, as disclosed in his statement under section 313, Cr. P. C., is that Smt. Kamla was friendly with him and used to compel him to do sexual intercourse with her. It was also stated that Kamla said to him that in case the accused appellant would not take her with him, she would commit suicide by falling into a well, and that he paid Rs. P. C., is that Smt. Kamla was friendly with him and used to compel him to do sexual intercourse with her. It was also stated that Kamla said to him that in case the accused appellant would not take her with him, she would commit suicide by falling into a well, and that he paid Rs. 50/- to Asulal, the owner of the house at Ratanada, Jodhpur and took the house on rent @Rs. 50/- P. m. The accused did not examine any witness in defence. 3. The learned Sessions Judge acquitted the accused of the offences under sections 366, 376, 497, and 411, I.P.C. but convicted and sentenced the accused appellant under section 498, I.P.C., as aforesaid. 4. The first contention of the learned advocate for the accused appellant is that necessary ingredients of section 498 of the Indian Penal Code are not made out as there is no evidence on record that the accused induced Kamla and she was taken away by the accused. But this argument of the learned advocate, to my mind, has no force In Alamgir and another v. State of Bihar ( AIR 1959 SC 436 ) , their Lordships of the Supreme Court observed that section 498 I.P.C. occurs in Chapter XX which deals with the offences relating to marriage and the provisions of section 493, I.P.C., like those of section 497, are intended to protect the rights of the husband and not those of the wife. It has further been observed that the gist of the offence under section 498 I.P.C. appears to be the deprivation of the husband of custody and his proper control over his wife with an object of having illicit intercourse with her. Comparing the provisions of section 366 and 498, I.P.C., their lordships observed that it will be shown that woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction of kidnapping, it may provide a good defence to an offence under section 366, I.P.C., but,on the other hand, section 398 I.P.C. is intended to protect the rights of the husband and not the wife and the consent of the wife to the deprivation of the husband of her custody and proper control would not be material. Dealing with the word detention, as occurring in section 498 I.P.C., their Lordships observed that it may be that the wife was dissatisfied with her husband and wanted voluntarily to leave her husband but where the evidence is that she was encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with the accused and must have looked forward to the accused and the accused in fact claimed to have married her, there can be no doubt that the accused intended to have illicit sexual intercourse with her. If knowing this, she came to stay with the accused and he allowed her to stay with him, it may be said that he had detained her within the meaning of section 498, I.P.C. This authority of the Supreme Court came up for consideration before the Delhi High Court in Chaman Lal Manga v. Haji Sabir All (1973 Cr. L.T. 1249) and it was observed that the willingness of the wife is immaterial and cannot be a defence in cases falling under the first three categories mentioned in section 498, I.P.C. From the material on record the accused was seen taking away Smt. Kamla over the cycle. No doubt, the circumstances that Kamla kept the house open during the night and was ready, and consenting party and that she had collected the ornaments and other articles, go to show that she was a willing party. But the accused appellant took house at Jodhpur on rent where Smt. Kamla was kept and she was subjected to sexual intercourse and this fact is not even disputed by the accused appellant. Therefore, it can be said that the accused allowed her to stay with him at Jodhpur and there by deprived Pukhraj, her husband,of his custody and proper control over Smt. Kamla with the object of having illicit intercourse with her. Thus, on the material on record, an offence under Section 498, I.P.C. is made out. 5. But the question is as to whether in view of Section 198, Cr.P.C. the learned Magistrate could have taken cognizance of an offence under Chapter XX of the Indian Penal Code, otherwise than on the report of Pukhraj, the husband of Smt. Kamla. The question is also as to whether in the facts and circumstances of the case, the cognizance of the offence was taken on complaint. The question is also as to whether in the facts and circumstances of the case, the cognizance of the offence was taken on complaint. It cannot be disputed that an offence under Section 498, I.P.C. is one punishable under Chapter XX of the Indian Penal Code and, therefore, in view of Section 198, Cr.P.C. no court can take cognizance of such an offence except on the complaint made by some person aggrieved by the offence, namely, the husband. Section 156(3), Cr.P.C. occurs in Chapter XII of the Code of Criminal Procedure which deals with information to the police and their powers to investigate whereas Chapter XIV of the Code of Criminal Procedure deals with conditions requisite for initiation of proceedings. In R.R. Chari v. State of U.P. ( AIR 1951 SC 207 ) , it has been observed that when the magistrate applies his mind not for the purpose of proceeding under the subsequent sections of Chapter XIII but for taking action of some other kind, e.g., ordering investigation u/s 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence. Their Lordships further observed that before it can be said that any magistrate has taken cognizance of any offence under Section 190 Cr.P.C., he must have applied his mind to the offence for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XIII. In D. Lakshminarayana v. V. Narayana ( AIR 1976 SC 1672 ) a similar view has been taken and their Lordships observed,- "If instead of proceeding under Chapter XV, he has in his judicial exercise of his discretion, taken action of other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence." Let us examine this case as to whether the cognizance of an offence was taken on the complaint or not. 6. The complaint was filed by Pukhraj on September, 16, 1975 and there was no allegations so far as the offence under Section 498, I.P.C. is concerned. 6. The complaint was filed by Pukhraj on September, 16, 1975 and there was no allegations so far as the offence under Section 498, I.P.C. is concerned. It was averred in para 5 of the complaint that the accused has abducted his wife by inducing her to go with him and he will either marry her or after disposing of the ornaments, will marry her to somebody else. It was at the request of the complainant himself that the learned magistrate forwarded the complaint under Section 156 (3) Cr.P.C. to police station Jaitaran. Thus, after the complaint had been filed before the learned Magistrate, the Magistrate did not proceed under Chapter XV of the Code of Criminal Procedure and did not take cognizance of an offence but, instead, straightaway sent the complaint to the police station Jaitaran for investigation under Section 156(3) Cr.P.C. A charge sheet was filed by the police after investigation and it appears from the perusal of the file of the learned Magistrate that the learned Magistrate took cognizance of an offence under Sections 366, 376 and 497 of Indian Penal Code on the police challan. Thus, it cannot be said in this case that cognizance of an offence under Section 498 had been taken by the learned Magistrate on a complaint by Pukhraj the husband of Smt. Kamla. The matter would have been different if, after the filing of the complaint, in order to take cognizance, the learned magistrate would have applied his mind and after recording the statement of the complainant, which step would have amounted to taking cognizance, the complaint would have been forwarded to the police for further investigation under Section (2)2 of the Code of Criminal Procedure. 7. In the result, the appeal deserves to be allowed. The same is allowed. The judgment of the learned Sessions Judge convicting and sentencing the accused appellant under Section 498 I.P.C. is set aside and the accused appellant is acquitted of the same. The accused appellant is on bail. He need not surrender to his bail bonds which are hereby discharged.Appeal allowed. *******