CHHOTEY MIAN Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Bareilly with the recommendation that the order dated 3. 4. 1971 of the Assistant Sessions Judge be set aside and the order of the Judicial Magistrate Bareilly committing the accused to also stand his trial for the offence of rape punishable under Section 376 I. P. C. be quashed and the Assistant Sessions Judge be directed to try the accused merely for the offence of kidnapping punishable under Sections 363 and 366 I. P. C.

(2.) THE learned Sessions Judge evidently made the reference relying upon the decision of this Court in State v. Sri Lal 1971 Cri LJ 141 (All ). The reference came up for hearing before Mohd. Hamid Hussain, J. who has rightly pointed out that law to the contrary has been laid down by the Supreme Court in Purushottam Das Dalmia v. State of West Bengal He however felt that the Single Judge decision could not be disregarded or overruled by him. This is why this reference has come up before us for hearing.

(3.) THE material facts of the case are that one Chhotey Mian is alleged to have kidnapped Km. Afsar Jahan a girl aged less than 18 years from the lawful custody of her parents at Bareilly and thereafter took her to Haldwani where he committed rape on her. The offence of kidnapping Ss alleged to have been committed at Bareilly on 26. 7. 1967 at about 12 noon, while the offence of rape in Haldwani on the night of the 26/27th July, 1967. The Magistrate of Bareilly held an Inquiry and committed Chhotey Mian to sessions to stand has trial of both the offences of kidnapping and rape even though the latter offence was committed at Haldwani.