S.D. KHARE, J. : This appeal has come before us on a reference made by a learned single Judge because he was of the opinion that there was some conflict in the earlier decisions of this Court, all of which were by single Judges.

2. The facts of this appeal briefly stated, are that Tej Singh (appellant) and seven others were sent up to stand their trial under Ss. 366, 368, 378,147 and 323/149, Penal Code, on a police report, which in its turn was based on a report made by Chandrasen, husband of Sm. Bhagwati. The husband had mentioned in his report that on 25th August, 1961, while he and his wife were returning from villafie Manpur after plucking chillies from their fields, Tej Singh appellant accompanied by other accused persons (since acquitted) sprang out of a full-grown chari field, caught hold of Sm. Bhagwati and took her away with them. On the morning of 28th August, 1961, i.e., two days after the report had been made to the police by the husband of Smt Bhagwati, the latter was recovered from the house of Tej Singh appellant. The case against Tej Singh and others was committed to the Court of Session. In the course of trial Chandrasen appeared as a witness for the prosecution and fully supported the prosecution case. The learned Sessions Judge, however, arrived at the conclusion that the case against Tej Singh appellant and others under Ss. 366/388/376/147 and 323/149, Penal Code, had not been made out beyond reasonable doubt. The learned Sessions Judge, however, convicted Tej Singh alone under S. 497; Penal Code, (a minor offence) on the finding that this minor offence had been made out and sentenced him to undergo one year's rigorous imprisonment. Tej Singh filed an appeal against his conviction and sentence. The learned single Judge, who heard that appeal, being of the opinion that there was some conflict in the earlier decisions of this Court, has referred the following question for the decision of a Division Bench :

"Whether in a case where the husband has lodged a report with the police but has not filed a complaint before the Magistrate for action being taken under S. 497, I.P.C. the accused can be punished for that offence, if a case under S. 497, I.P.C. is made out against him at the trial."

3. The learned Sessions Judge appears to have convicted Tej Singh by virtue of the provisions of S. 238, Criminal P.C. which are that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the major offence although he is not charged with it. The learned Sessions Judge, however, could not have convicted Tej Singh under S. 497, I.P.C. unless he was satisfied that a complaint had been made by the husband. In this connection the provisions of Section 199 and Sub-S. (3) of S. 238, Criminal P.C. may be examined. They are as follows :-

"199. No court shall take cognizance of an offence under S. 497 or S. 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." "238...................

(3) Nothing in this Section shall be deemed to authorize a conviction of any offence referred to in S. 198 or S. 199 when no complaint has been made as required by that Section".

4. The main question for consideration is whether the lodging of a report to the police by the husband and his subsequent statement in the case as a witness can be held to be a ''complaint" within meaning of S. 199, Criminal P.C.

5. The word "complaint" has been defined in cl. (h) of Sub-S. (1) of S. 4 of the Code or Criminal Procedure as follows :-

"4. (1) In this Code the following words and expressions have the following meanings unless a different intention appears from the subject or context :-

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(h) 'complaint' means the allegation made orally or in writing to a Magistrate, with a view to his taking action under t