CIAN DSOUZA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY impugned order dated 29-9-98, which is subject matter of challenge in this revision, charge was ordered to be framed against the petitioner and another accused Rajkumar Halwai under sections 363, 366, 465, 466, 468, 471, 120-B, read with 109 I. P. C. In this revision, the challenge is restricted only to the order of framing of charge under section 366 I. P. C.

(2.) LEARNED Advocate Shri M. S. Joshi, appearing on behalf of the petitioner urged before me that in respect of a marriage which took place between the petitioner and one Majdoline Habib, (hereinafter, referred to as the said girl) no charge could be ordered to be framed under section 366 I. P. C. since both of them belong to same sex. Besides this, it was also urged by him, after placing reliance on (S. Varadarajan v. State of Madras), A. I. R. 1965 S. C. 942; (State of Kerala v. Rajayyan and others), 1966 Cri. L. J. 145; and (Gourish s/o. Shamba Haldankaa v. State of Goa), 1997 All. M. R. (Cri.) 629 that the said Majdoline Habib had accompanied the petitioner on her own and that there is no case of kidnapping and in the event, there is no kidnapping, charge under section 366 I. P. C. , which is an aggravated form, could not be ordered to be framed.

(3.) THERE is basic fallacy in the argument of learned Advocate for the petitioner, since, in this revision there is no challenge to the order framing charge under section 363 I. P. C. Moreover, the rulings upon which the reliance has been placed by learned Advocate for the petitioner, have been rendered after the full-fledged trial, wherein all facts were available before the Court. Thirdly, in those cases, the prosecutrix was on the verge of attaining majority, that is to say, near 18 years of age. However, in the case under consideration, there is a dispute regarding the age of the said girl. As per the school records and the Baptism Certificate, the age of the said girl is 13 and half years; whereas, according to the medical examination it is stated to be 16 years with six months allowance on either side.