DIST MAG Vs. K SUBBANNA

JUDGEMENT

(1.) This petn. has been taken on file on a reference by the Dist. Mag., Chittoor, for quashing the charge Under Section 363, I. P. C. framed by the Stationary Sub-Mag., Madanapalle against one Subbanna for having kidnapped one Venkatalakshmamma, a girl of 16 years on 4-12-1949.

(2.) The facts were briefly these. The Sub-Inspector of Police, Thambalapalle, filed a charge sheet in the Ct. of the Sub-Stationary Sub-Mag., Madanapalle, against accused Subbanna Under Section 366, I. P. C. for kidnapping Venkatalakshmamma, a fatherless minor girl of 16, from the guardianship of her mother, P. W. 2, on 4-12-1949, with intent that she might be compelled to marry him against her will. That case was taken on file by the Stationary Sub- Mag., Madanapalle, as P. R. C. No. 4 of 1950. As the girl had stated to P. W. 10, the Sub-Inspector of Police, that she loved the accused & was having sexual intercourse with him even before her marriage, in the fields & elsewhere & had willingly eloped with him & had indeed induced him to take her away & marry her, as she did not like to marry a Bangalore man fixed up for her by her mother & intensely disliked by her, the Asst. Public Prosecutor probably relying on the rulings in Fulchand v. Emperor, A. I. R. (19) 1932 Cal. 442 and Bishnath Prasad v. Emperor, 48 Cr. L. J. 542 applied to the Sub-Magistrate by a memo dated 23-3-1950 to send the case to the Sub-Divisional Mag., Madanapalle, for trial Under Section 363, I. P. C. as he was not pressing the charge Under Section 366, I. P. C. So, without examining the prosecution witnesses, the Sub- Mag. sent the case to the Sub-Divisional Mag., Madanapalle, for taking it on file Under Section 363, I. P. C. & disposing of the case. He simply endorsed on the case file thus: "Submitted to the Sub-Divisional Mag., Madanapalle, as requested by A.P.P. II". The Sub-Divisional Mag., Madanapalle, sent the case back to the Sub-Mag., stating that, when the charge-sheet & complaint disclosed an offence Under Section 366, I P. C., the Asst. Public Prosecutor could not say that he was giving up the offence Under Section 366, I. P. C. at his will & pleasure & that it was the duty of the Ct, to hear the witnesses & determine what offence was committed. I may here remark that the Asst. Public Prosecutor had not applied to the Stationary Sub-Mag. Under Section 494, Cr. P. C. for permission to withdraw from the prosecution of the offence Under Section 366, I. P. C. and the Court had not given its consent to any such withdrawal and discharged the accused regarding the offence under Section 366, I. P. C. So the Sub-Divisional Mags'. action in returning the case to the Sub-Mag. cannot be said to be unjustified. The Sub-Mag. after receiving back the case, enquired into it as a P. R. case & finally came to the conclusion that only an offence Under Section 363, I. P. C. would stand, as the marriage was not by compulsion or against the will of the girl but with her full consent & indeed, demand. So, he framed a charge only Under Section 363, I. P. C. against the accused, but unfortunately, fell into an illegality by not framing a charge as in a committal Ct. & also by recording the accused's plea after the charge was framed. The charge runs :

(3.) I have perused the records & heard the learned Public Prosecutor. The accused is absent though served. It is clear to me that, under the law & applying the principle of the P. C. ruling in Yousufalli Mulla Noorbhai v. King, 1949-2-M. L. J. 461, the charge framed by the Sub-Mag., is illegal as urged by the Sub-Divisional Mag., the Dist. Mag. & the learned Public Prosecutor & not merely irregular & curable Under Section 537, Cri.P. C. Mags, must stick to the law & not strike out the well known & recognised clauses in printed forms of charges approved by this Ct. & frame new & unauthorised methods of charges regarding of. fences which they are not "competent to try" & send the cases up to their superior Mag. to try, after recording the accused's plea also. That is clearly illegal, & not merely irregular Under Section 537 Cri. P. C. So I quash the charge Under Section 363, I. P. C. framed by the Sub-Mag., Madanapalle.