BAIJNATH Vs. EMPEROR

JUDGEMENT

(1.) This is a case of some importance in reference to the application of Section 366, I.P.C., and that is unfortunately a section which comes before the Courts possibly more often than any other particular section in the Code, except those of riot and hurt. The question turns upon what is the meaning of "seduced to illicit intercourse" in Section 366 of the Code.

(2.) A young man of 25 has been found, subsequent to a course of intrigue with a girl of 14, to have taken her away out of the possession and control of her father, and he so took her away, or rather went away with her, because his intrigue was beginning to suffer, interruption. We state the facts in ordinary language because it is the legal language which we have to interpret. The Magistrate convicted the accused under Section 363, I.P.C. that is to say, of simple kidnapping. The accused appealed, and the learned Judge, while he has expressed his views on some of the merits of the case, did not finally decide the appeal but "set aside the conviction and sentence" and sent the case back to the Magistrate with a direction to him to commit the accused for trial on a charge under Section 366, I.P.C. after giving the parties a further opportunity to produce additional evidence, if they so wished, on the question of the girl's age.

(3.) We have had an application made to this Court on the revisional side by the father of the girl. We are not limited in this Court to motions made by any particular person, and in this case if anybody was to move the Court on behalf of the girl, the father may be well considered to be the proper person. The father, then, asks us to hold that the order of the learned Judge, which was presumably passed under Section 423(1)(b)(2), Criminal P.C. should be set aside and that the Judge should be directed to hear the appeal in the ordinary course under Section 423, and if he considered further evidence necessary he might be directed to act under Section 428, Criminal P.C. This application is supported by the Assistant Government Advocate. On the other hand we have also heard counsel for the accused, and he invites us to maintain the order of the learned Judge. For a clearer appreciation of the case we may briefly state the motives, though they do not of course affect the question of law. The father avowedly does not want further disturbance and scandal in the matter, at any rate more than is necessary. The accused naturally hopes for a further chance of getting a clean acquittal. We concern ourselves of course only with the question of law.