minal Appeal No 187 of 1956
Appeal by special leave from the judgment and order dated December 7 1955 of the Patna High Court in Criminal Revision No 875 of 1954 arising out of the judgment and order dated May 31 1954 of the Court of the Additional Sessions Judge at Arrah in Criminal Appeal No 293 of 1953
B K Saran and K L Mehta for the appellants
B H Dhebar and T M Sen for the respondent
November 14
The Judgment of the Court was delivered by GAJENDERAGADKAR J
This criminal appeal raises a short question about the construction of the word  detains  occurring in a 498 of the Indian Penal Code
It arises in  this way
The two appellants were charged before the trial magistrate under section 498 of the Code in that on or about October 27 1952 at the village Mohania they wrongfully detained Mst
59 466 Rahmatia the legally married wife of the complainant Saklu Mian when they knew or had reason to believe that she was the wedded wife of the complainant and was under his protection with intent to have illicit intercourse with her
The prosecution case was that Mst
Rahmatia had disappeared from her husband s house on October 21 1952 the complainant made J search for her for several days but was not able to trace her whereabouts
Ultimately he filed a complaint at the police station after he was informed by Shakoor Mian P W 4 that he had seen the complainant s wife at the house of the two appellants
The complainant then went to the house of the appellants along with Shakoor Mian P W 4 Musa Mian P W 2 and Suleman Mian P W 3 they saw the woman in the house of the appellants whereupon the complainant asked appellant No I Alamgir to let his wife go with him but appellant No I told him that he had married her and appellant No 2 warned him to get away and said that if he persisted he would be driven out
This story is corroborated by the three companions of the complainant
The appellants denied the charge
They pleaded that the complainant had not validly married the woman and that she had not been detained by them
According to them the woman was tired of living with the complainant and that she had voluntarily and of her free will come to stay with the appellants
The learned trial magistrate believed the prosecution evidence rejected the pleas raised by the defence con victed the appellants of the charge framed and sentenced them to undergo simple imprisonment for two months each
This older of conviction and sentence was challenged by the appellants by their appeal before the court of sessions
The appellate court confirmed the conviction of the appellants but reduced their sentence from simple imprisonment for two months to a fine of Rs 50 or in default simple imprisonment for one month each
The appellants then moved the High Court at Patna in its revisional jurisdiction
When the revisional application came to be heard before Choudhary J the learned judge thought 467 that the appellate court should not have reduced the sentence imposed on the appellants by the trial magistrate and so he issued a notice against the appellants calling upon them to show cause why their sentence should not be enhanced
This notice and the main revisional application were ultimately heard by Ramaswamy and Imam JJ who confirmed the order of conviction and enhanced the sentence against both the appellants by ordering that each of them should suffer six months  rigorous imprisonment
An application made by the appellants to the High Court for a certificate to appeal to this Court was rejected
The appellants then applied for and obtained special leave to appeal to this Court
That is how this appeal has come before us for final disposal
On behalf of the appellants Mr B K Saran has urged that the evidence in the case clearly shows that the woman was dissatisfied with her husband and had left his house and protection voluntarily and of her free will
If having thus left the house she came to stay with the appellants and they allowed her to stay with them it cannot be said that they have detained her within the meaning of section 498
According to him the word  details  used in section 498 must necessarily imply that the woman detained is unwilling to stay with the accused and has been compelled so to stay with him against her will and desire
It is difficult to imagine that if a woman is willing to stay with a person it can be said that the person has detained her
That is not the plain grammatical meaning of the word  detains 
It is this argument which calls for our consideration in the present appeal
At the outset it would be relevant to remember that section 498 occurs in Ch
XX of the Indian Penal Code which deals with offences
relating to marriage
The provisions of section 498 like those of section 497 are intended to protect the rights of the husband and not those of the wife
The gist of the offence under section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her
In this connection it would be material to compare and contrast the 468 provisions of section 498 with those of section 366 of the Code
Section 366 deals with cases where the woman kidnapped or abducted is an unwilling party and does not respond to the criminal intention of the accused
In these cases the accused intends to compel the victim afterwards to marry any person against her will or to force or seduce her to illicit intercourse
In other words section 366 is intended to protect women from such abduction or kidnapping
If it is shown that the woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction or kidnapping it may prima facie be a good defence to a charge under section 366
On the other hand section 498 is intended to protect not the rights of the wife but those of her husband and so prima facie the consent of the wife to deprive her husband of his proper control over her would not be material
It is the infringement of the rights of the husband coupled with the intention of illicit intercourse that is the essential ingredient of the offence under a 498
Incidentally it may be pointed out that the offence under section 498 is a minor offence as compared with the offence under section 366
The policy underlying the provisions of section 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual rights and obligations under marriage
Indeed Mr Saran vehemently argued before us that it was time that sections 497 and 498 were deleted from the Penal Code
That however is a question of policy with which courts are not concerned
It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions the construction which is favourable to the accused should be preferred but in construing the relevant words it is obviously necessary to have due regard to the context in which they have been used and as we will presently point out it is the context in which the word detains  has been used in section 498 that is substantially against the construction for which the appellant contends
Section 498 provides 469  Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man from that man or from any person having the care of her on behalf of that man with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman shall be punished with imprisonment of either description for a term which may extend to  two years or with fine or with both
It would be noticed that there are three ingredients of the section
The offender must take or entice away or conceal or detain the wife of another person from such person or from any other person having the care of her on behalf of the said person
He must know or has reason to believe that the woman is the wife of another person and the taking enticing concealing or detaining of the woman must be with intent that she may have illicit intercourse with any person
It is clear that if the intention of illicit intercourse is not proved the presence of the first two ingredients would not be enough to sustain the charge tinder section 498
It is only if the said intention is proved that it becomes necessary to consider whether the two other ingredients are proved or not
It is plain that four different kinds of cases are con templated by the section
A woman may be taken away or enticed away or concealed or detained
There is no doubt that when the latter part of the section refers to any such woman it does not mean any woman who is taken or enticed away as described in the first part but it refers to any woman who is and whom the offender knows or has reason to believe to be the wife of any other man
It is not seriously disputed that in the first three classes of cases the consent of the woman would not matter if it is shown that the said consent is induced or encouraged by the offender by words or acts or otherwise
Whether or not any influence proceeding from the offender has operated on the mind of the woman or has co operated with or encouraged her inclimations would always be a question of fact
If on evidence the court is satisfied that the act of the woman in 470 leaving her husband was caused either by the influence of allurement or blandishments proceeding from the offender that may be enough to bring his case within either of the three classes of cases mentioned by section 498
In this connection when the consent or the free will of the woman is relied upon in defence it is necessary to examine whether such alleged consent or free will was not due to allurement or blandishments or encouragement proceeding from the offender
It is however urged that when the latter part of the section speaks of detention it must prima facie refer to the detention of a woman against her will
It may be conceded that the word  detains may denote detention of a person against his or her will  but in the context of the section it is impossible to give this meaning to the said word
If the object of the section had been to protect the wife such a construction would obviously have been appropriate but since the object of the section is to protect the rights of the husband it cannot be any defence to the charge to say that though the husband has been deprived of his rights the wife is willing to injure the said rights and so the person who is responsible for her willingness has not detained her
Detention in the context must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the requisite intention
Such keeping back may be by force but it need not be by force
It can be the result of persuasion allurement or blandishments which may either leave caused the willingness of the woman or may have encouraged or co operated with her initial inclination to leave her husband
It seems to us that if the willingness of the wife is immaterial and it cannot be a defence in cases falling tinder the first three categories mentioned in section 498 it cannot be treated as material factor in dealing with the last category of case of detention mentioned in the said section
Therefore we are satisfied that the High Court was right in holding that the charge of detention has been proved against appellant No I inasmuch as both the courts of facts have found that 471 he had offered to marry Mst
Rahmatia and thereby either persuaded or encouraged her to leave her husband s house
It may be that Rahmatia was dissatisfied with her husband and wanted voluntarily to leave her husband but on the evidence it has been held that she must have been encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with appellant No 1 and she must have looked forward to marry him
In fact appellant No 1 claims to have married her
Thus there can be no doubt that he intended to have illicit sexual intercourse with her
That is the effect of concurrent findings of fact recorded against appellant No I  and it would not be open to him to challenge their correctness or propriety in the present appeal
This section has been the subject matter of several judicial decisions and it appears that except for a few notes of dissent there is a fair amount of unanimity of judicial opinion in favour of the construction which we feel inclined to place on the word  detains  in section 498
It is however true that the relevant decisions to some of which we would presently refer disclose a striking difference of approach in dealing with questions of fact
It would appear that though the relevant portion of the section has received the same construction in dealing with same or similar facts the learned judges have differed in their conclusion as to whether the accused person had been guilty of conduct which would bring his case within section 498
This however is a difference in the method of approaching evidence and assessing its effects
It would be futile and even improper to consider whether a particular conclusion drawn from the specific evidence adduced in the case was right or not
What is important in such cases is to see how the section has been construed and as we have just indicated in the matter of construction there appears a fair amount of unanimity
Let us now refer to some of the decisions cited before us
In 1868 the Madras High Court held in Sundara Dass Tevan 1 that depriving the husband of his 1 1868 IV Mad
HCR 20
472 proper control of his wife for the purpose of illicit inter course is the gist of the offence just as it is the offence of taking away a wife under the same section and a detention occasioning such deprivation may be brought about simply by the influence of allurement and blandishment
On the facts of the case however the court was not satisfied that the accused bad offered any such allurement or blandishment and so the order of conviction passed against the appellant was quashed
It appears that the construction put by the Madras High Court on section 498 in this case has been generally accepted in the said High Court Vide Ramaswamy Udayar vs Raju Udayar 1 
The Bombay High Court has taken the same view in Emperor vs Jan Mahomed 2
It was held by the High Court that the offence contemplated by  498 is complete if it appears that the accused went away with the woman in such a manner as to deprive her husband of the control of his wife the fact that the woman accompanied the accused of her own free will does not diminish the criminality of the act
Even in this case the court was unable to discover any evidence direct or indirect about the intention of the accused or any allurement or blandishment offered by him and so the order of conviction passed against the accused was set aside
This question came to be considered by the said High Court again in Emperor vs Mahiji Fula 3
Mr Justice Broomfield who delivered the main judgment of the Bench has expressed the view that  the word I detains  means by deprivation and according to the ordinary use of the language I keeps back  and he adds that there may be various ways of keeping back
It need not necessarily be by physical force
It may be by persuasion or as the Court  Madras High Court  has observed in this particular case Sundara Dass Thevan 4  by allurement or blandishment 
On the facts however it appeared to the trial court that the conduct of the accused did not bring his case within the mischief of section 498
The wife of the complainant had been taken 1 AIR 1953 Mad 333
3 Bom
88 92
2 1902 IV Bom
L R 435
4 1868 IV Mad H C R 20
473 away by her brother and she was subsequently married by natra marriage to the accused
The complainant learnt about this incident and went to the accused to ask him to allow his wife to go back to him
On seeing the complainant and his friends the accused came out with a dharia and threatened the complainant and his companions who then re turned to their village
The conduct of the accused  when the complainant approached him it was said cannot necessarily indicate that the accused had detained the woman
This was the  view taken by the trial court who acquitted the accused  on appeal the High Court saw no reason to differ and so the order of acquittal was confirmed by it
Divatia J who delivered the concurring judgment apparently differed from Broomfield J in regard to the construction of the word  detains 
He agreed that the scheme of section 498 showed that though the woman may be perfectly willing to go with the man the offence of taking or enticing away would occur because it simply consists of taking or enticing away a woman without anything more but according to him in the latter part of the section which speaks of concealing or detaining the woman the woman would be detained only if she is prevented from going in any quarter where she wants to go
In our opinion this construction is not sound
It is not easy to see how the act of concealing the woman would necessarily import any considerations of the consent of the woman  besides according to Divatia J himself the woman s Consent would be irrelevant in the cases of taking or enticing her away
If that be so it is difficult to make her consent relevant and decisive in dealing with the cases of detention
Unfortunately the learned judge does not appear to have appreciated the fact that the primary and the sole object of section 498 is to protect the husband s rights and not the rights of the wife
If it is shown that the woman s inclination to stay away from her husband was either instigated or encouraged by the offender she can be said to have been detained or kept away from her husband within the meaning of the section 60 474 though at the time of the detention she may be willing to say with the offender
The same view has been expressed by Broomfield and Sen JJ in Emperor vs
Ram Narayan Baburao Kapur 1 and by Beaumont CJ and Sen J in Mahadeo Rama vs Emperor 2
We may point out that in both these cases the court was have detained the woman
The Calcutta High Court appears to have put a similar construction on the word detention
In Prithi Missir vs Harak Nath Singh 3 it has been held by the said High Court that  the word  detention  is ejusdem generis with enticement and concealment
It does not imply that the woman is being kept against her will but there must be evidence to show that the accused did something which had the effect of preventing the woman from returning to her husband 
On the merits however the court held that the learned trial magistrate had not come to any definite finding of fact
In fact it did not appear that the accused was keeping the complainant s wife as his mistress and on the whole the court was not satisfied that the accused was responsible for the conduct of the complainant s wife for leaving her husband s house and so detention was held not proved against the accused
In Mabarak Sheikh vs Ahmed Newaz 4 the same High Court held that there can be no detention of a woman within the meaning of section 498 second part if the woman is an absolutely free agent to go away from the person charged whenever she likes
It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she likes to do so and in support of this view they have referred to some of the decisions which we have already considered
With respect it appears that the effect of the earlier decisions has not been properly considered and the findings of fact recorded in the said decisions are assumed to lend colour to and modify the construction of the section 1 3 ILR 2 AIR 1943 Bom 179
4 475 adopted by them
Besides the relevant observations appear to be obiter because on the facts it was found in this case that the woman was not a free agent and so the charge against the accused under section 498 was held established
In Bipad Bhanjan Sarkar vs Emperor 1 Henderson and Khundkar JJ have considered the word  detains  in the same manner as we have done
However as in many other cases in this case also the court found that there was absolutely nothing to show that the accused had done anything which could bring his case within the mischief of section 498
The Patna High Court in Banarsi Raut vs Emperor 2 has held that providing shelter to a married woman is such an inducement as to amount to detention within the meaning of section 498
This case shows that where a married woman was found living in the house of the accused for some time and sexual intercourse between them had been established the court was inclined to draw the inference that there was per suasion or inducement of the woman as would come within the meaning of the word  detention 
This is a case on the other side of the line where on facts the inference was drawn against the accused
The Lahore High Court has taken a similar view as early as 1913 in Bansi Lal vs The Crown 3 
The court has held that where the accused had provided a house for the woman where she stayed after deserting her husband under the protection of the accused as his mistress it was active conduct on his part which was sufficient to bring him within the terms of section 498
In 1939 however a Division Bench of the Lahore High Court has taken a contrary view in Harnam Singh vs Emperor 4
In this case the revisional application filed by Harnam Singh against his conviction under section 498 was first argued before Din Muhammad J who referred it to a Division Bench because he thought that the question of law raised was of some importance
In his referring judgment the learned judge mentioned some of the relevant decisions to which his attention was drawn and indicated his own view that 1 ILR 3 1913 XlV Punjab L R 1066
2 AIR 1938 Pat
4 AIR 1939 Lah
476 the word  detains  would naturally imply some overt act on the part of the person who detains in relation to the person detained
He thought that mere blandishment would not constitute any relevant factor in the matter of detention
The matter was then placed before a Division Bench consisting of Young C J and Blacker J Unfortunately the judgment of the Division Bench does not discuss the question of the construction of section 498  it merely records the conclusion of the court in these words  In our opinion the word  detains  clearly implies some act on the part of the accused by which the woman s movements are restrained and this again implies unwillingness on her part
Detention cannot include persuasion by means of blandishments or similar inducements which would leave the woman free to go if she wished 
The learned judges also added that they were of the opinion that the word  detains  cannot be reasonably construed as having reference to the husband
In our opinion these observations do not correctly represent the true purport and effect of the provisions of section 498
The position therefore is that on the findings of fact made by the lower courts against appellant No I it must be held that he has been rightly convicted under section 498
That takes us to the question of sentence imposed on him by the High Court in its revisional jurisdiction
We are satisfied that the High Court was not justified in directing appellant No I to suffer rigorous imprisonment for six months by way of enhancement of the sentence
It is unnecessary to emphasise that the question of sentence is normally in the discretion of the trial judge
It is for the trial judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case
The High Court undoubtedly has jurisdiction to enhance such sentence under section 439 of the Code of Criminal Procedure but this jurisdiction can be properly exercised only if the High Court is satisfied that the sentence imposed by the trial judge is unduly lenient or that in passing the order of sentence the trial judge had manifestly failed to consider the 477 relevant facts
It may be that the High Court thought that the appellate order passed by the Sessions Judge modifying the original sentence was wrong and in that sense the issue of notice under section 439 of the Code of Criminal Procedure against appellant No 1 to show cause why his sentence should not be enhanced may have been justified but in enhancing the sentence the High Court should we think have restored the sentence passed by the trial judge himself
It is true that in enhancing the sentence the High Court has observed that  women in this country whether chaste or unchaste must be protected and that it is the duty of the court to see that they are given sufficient protection 
We are inclined to think that the considera tion set out in this observation is really not very helpful and not decisive because as we have already observed section 498 does not purport to protect the rights of women but it safeguards the rights of husbands
Besides in the present case it is clear that Mst
Rahmatia who is a woman of loose moral character was dissatisfied with the complainant who is her second husband and was willing to marry appellant No 1
In such a case though appellant No I is guilty under section 498 it is difficult to accept the view of the High Court that the sentence of two months  simple imprisonment imposed on him by the trial court was so unduly or manifestly lenient as not to meet the ends of justice
It would not be right for the appellate court to interfere with the order of sentence passed by the trial court merely on the ground that if it had tried the case it would have imposed a slightly higher or heavier sentence
We would accordingly modify the order of sentence passed against appellant No 1 by reducing it to that of simple imprisonment for two months
The case of appellant No 2 is clearly different from that of appellant No 1
The findings of fact recorded by the courts below do not implicate appellant No 2 in the act of persuasion or offering blandishments or inducements to Mst
Rahmatia
The only evidence against this appellant is that when the complainant went to take away his wife appellant No 2 threatened 478 him
The record shows that appellant No 2 is the brother of appellant No 1 and if knowing that Rahmatia had married his brother appellant No 2 told the complainant to walk away that cannot legally justify the inference that he must have offered any inducement blandishment or allurement to Rahmatia for leaving the protection of her husband and refusing to return to him
Indeed the courts below have not considered the case of this appellant separately on its own merits at all
In our opinion the conviction of appellant No 2 is not supported by any evidence on the record
The result is the appeal preferred by appellant No 2 is allowed the order of conviction and sentence passed against him is set aside and he is ordered to be acquitted and discharged
Appeal of appellant No 1 dismissed
Appeal of appellant No 2 allowed


Summary:
The first respondent instituted a suit for mandatory injunction to enforce a contract alleged to have been entered into between him and the appellant officers of the second respondent Corporation for appointment to the post of Instrumentation Foreman in the appellants  company and for consequential reliefs
He contended that he had been sponsored by the Chairman and Managing Director of the second respondent Corporation which was the holding company of the appellants company by his two letters for appointment as an Apprentice Engineer in terms of a scheme formulated by the Government of India
The appellants and the second respondent denied the existence of any contract
The trial court dismissed the suit
However on appeal the first appellate court decreed the suit and directed the first appellant to appoint the first respondent to the post of Apprentice Engineer under the scheme sponsored by the Government of India
This was confirmed in appeal by the High Court which held the first respondent was entitled to be appointed to the post of Instrumentation Foreman with effect from the date on which the former incumbent of that post had resigned
In the appeal before this Court on behalf of the appellants it was contended that there was no evidence of the contract having been entered into by the appellant with the first respondent nor was there any evidence of a scheme of the Government of India which entitled him to be appointed to any post in the appellants  company and that in any view he was not qualified for appointment as an Apprentice much less to the higher post of Instrumentation Foreman
469 On behalf of the first respondent it was contended that the letters addressed by the second respondent in his capacity as Chairman and Managing Director of the holding company to the appellants the officers of the subsidiary company made it obligatory on the part of the latter to appoint him in terms of the Government of India scheme as so found by both the first Appellate court and the high Court
Allowing the appeal this Court HELD 11 A contract of employment cannot ordinarily be enforced by or against an employer
The remedy is to sue for damages
The grant of specific performance is purely discretionary and must be refused when not warranted by the ends of justice
Such relief can be granted only on sound legal principles
In the absence of any statutory requirement courts do not ordinarily force an employer to recruit or retain in service an employee not required by the employer
There are of course certain exceptions to this rule such as in the case of a public servant dismissed from service in contravention of Article 311 of the Constitution reinstatement of a dismissed worker under the Industrial Law a statutory body acting in breach of statutory obligations and the like
475 E BN Tiwari vs District Board Agra   UP State Warehousing Corporation vs CK Tyagi  and Executive Committee of Vaish Degree College Shamli and Ors
vs Lakshmi Narain and Ors   referred to
Indian Contract and Specific Relief Acts by Polock  Mulla Tenth Edn page 983 and Halsbury s Laws of England
Fourth Edn Volume 44 paragraphs 405 to 420 referred to
12 In the instant case neither from the plaint nor from the evidence is it possible to identify and concluded contract to which the first respondent is a party or which he can enforce
There is no specific plea or evidence as regards the particulars of the scheme of the Government of India in terms of which he seeks relief whether it is a statutory scheme and if so what are the provision relied on by him and whether a duty is cast on the appellants and a benefit is conferred on persons like the first respondent
Assuming that such a scheme existed or any such contract bound the parties it would be violative of all basic norms of law to decree a suit for specific performance of a contract of personal service472E G 470 13 Courts do not ordinarily enforce performance of contracts of a personal character such as a contract of employment
Subject to certain well defined categories of exceptions law does not permit and the does not contemplate the enforcement of a contract of a personal nature by a decree for specific performance
The facts of the instant case do not fall within the exceptions
472A 474D Rigby vs Connol  487 and Executive Committee of Vaish Degree College Shamli and Others vs Lakshmi Narain and Ors  at 1020 referred to
Cheshire fifoot and Furmston s Law of Contract 11th ed p 614 and Halsbury s Laws of England Fourth Edition Volume 44 at page 407 referred to
14 Even if there was a contract in terms of which the first respondent was entitled to seek relief the only which was available in law was damages and not specific performance
Breach of contract must ordinarily sound in damages and particularly so in the case of personal contracts
Assuming that a contractual relationship arose consequent upon the letters addressed by the second respondent to the first appellant the first respondent was a total stranger to any such relationship for no relationship of a fiduciary character existed between the first respondent and the second respondent or the appellants
Neither on principles of law or equity nor under any statute did the first respondent acquire an enforceable right by reason of the letters exchanged between the appellant and second respondent nor did he have private of any kind to their relationship
No collateral contract to which he was a party did arise on the facts of this case and at no time was the second respondent acting as his agent
There is no express or implied contract which is enforceable by him
475 H 476 B In the circumstances the decrees of the High Court and the first appellate Court are set aside and that of the trial court is restored476D