EMPEROR Vs. GANPAT ASARAJI

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal P. C., by the District Magistrate, Akola, recommending reversal of an order of acquittal. Two individuals, Amruta and Ganpat, were prosecuted for offences punishable under Sections 366-A end 368, I. P. C. One Mt. Jani, a married girl under 18 years of age, left her husband's house secretly to see her mother. Amruta promised to take her to her mother, but instead of doing so left her with Ganpat. This man disguised her in male attire and took her from place to place where she had sexual connexion with himself and some other persons. On consideration of the evidence the trying Magistrate framed a charge under Section 366-A, I. P. C., against Amruta and one under Section 368, I. P. C., against Ganpat. In the end he found that Amruta did not intend to kidnap Mt. Jani and acquitted him. As a sequel, Ganpat was also acquitted of the offence under Section 368, I. P. C. The learned District Magistrate is of opinion that Ganpat ought to have been charged with the offence punishable under Section 366-A, I. P. C., for inducing Mt. Jani to leave her husband's house with intent to force her to illicit intercourse with some persons, and points out that unless the order of acquittal of Ganpat for the offence punishable under Section 368, I. P. C., is set aside, he cannot order Ganpat's retrial under Section 366-A, I. P. C.

(2.) THE reference raises an important question as to whether this Court should interfere in revision to reverse the order of acquittal, at the instance of the District Magistrate, when it is open to the Local Government to file an appeal against it under Section 417, Criminal P. C.

(3.) THE learned District. Magistrate agrees with the trying Magistrate that the facts did not prove the offence under Section 368, I. P. C; if so, how can he move this Court to set aside the order of acquittal? I am aware that he desires the acquittal under Section 368, I. P. C., to be reversed not because it was wrong, but it precludes a fresh trial of offence under Section 366-A, I. P. C. But the question is one which ought to be raised in appeal. I think the appropriate procedure is to prefer an appeal against the order of acquittal and ask for conviction either under Section 368, I. P. C., or under Section 366-A, I. P. C., alternatively: conviction under Section 366-A may be made even though no specific charge was framed: see Begu v. Emperor . For the foregoing reasons I cannot accept the reference and I would accordingly discharge it.