STATE OF KARNATAKA Vs. SHAKTHI VELU

JUDGEMENT

(1.) This revision by the State of Karnataka is directed against the order of discharge recorded by the Metropolitan Magistrate, VI Court, Bangalore City for the offences under Ss.363 and 376 of the IPC.

(2.) It appears that a police report was instituted by one S.T.Ramachandra Rao on 18-11-1976. It is stated in the complaint that Shashikala, daughter of S.T.Ramachandra Rao, aged about 18 years' left the house on 18-11-1976 at about 6-30 a.m., to purchase some food articles but did not return to her home. Thereafter, the brother of the girl Shashikala went to fetch her and found her in the company of the accused in his room, and on a later date Shashikala was recovered along with the accused. After receiving the complaint the police started investigation, based on the first -information-report, examined some witnesses, and ultimately submitted the charge-sheet for the offences under Ss.363 and 376 IPC, against the accused Shakthi Velu. The learned Magistrate obviously took cognisance of the offence under S.190 CrlPC. The offence was brought to, his notice upon a police report on the facts alleged in the first information report as well as on the facts discovered from the statements of the witnesses examined during investigation. After the Magistrate took cognizance of the offence under Sec. 190, he proceeded under Sec.209 and under that section he had to find whether the offence was triable exclusively by the Court of Sessions. The learned Magistrate thereafter proceeded to examine the statements of the witnesses and made his own assessment of that evidence. He drew certain inferences and in his opinion the girl Shashikala was more than 18 years of age. On that basis he held that the offence under Sec.376 IPC. could not be made out. Although the learned Magistrate has not categorically stated in that manner, yet he seems to have presumed that the girl must have consented to the sexual intercourse. However, in his order the learned Magistrate merely remarks that the age of the girl being 18 years or more, the offence could not be made out. That was obviously a wrong finding. The girl of that age if subjected to sexual intercourse without her consent or by force or compulsion, the person responsible for that, would nonetheless be liable for punishment under Sec.376 IPC. For the offence under Sec.363 IPC., the learned Magistrate upon reading of the evidence found that the age of the girl was more than 18 years and as such there could be no offence of kidnapping. On the same question he further scrutinised the prosecution witnesses and held that it was not proved that the accused enticed or kidnapped Shashikala meaning thereby that she herself went to reside' with the accused. Having arrived at that finding, the learned Magistrate discharged the accused of the two charges. It is abundantly clear that the offence under Sec.376 was exclusively triable by the Court of Sessions and the learned High Court Government Pleader in support of the revision contends that in any case the learned Magistrate could not have discharged the accused for the said offence.

(3.) Smt.Karpagam Kamath, the learned Counsel appearing for the accused, referred to Sec.209 and her main contention was that the expression "it appears to. the Magistrate that the offence is triable exclusively by the Court of Sessions" occurring in that section necessarily means that the learned Magistrate had to consider the material on the record.