(1.) This application raises a novel point. The petitioner, formerly a police officer, according to his own case, was deputed to investigate a charge against one Rudrappa for disposing of his minor daughter Huchi for purposes of prostitution, under Section 372 of the Indian Penal Code. In the course of his investigation he says that he obtained information that one Annappa was to visit the girl Huchi who had by that time attained her majority and that in consequence he went to the house then occupied by herself and her mother in the middle of the night. There he alleged that he was set upon by the accused who confined him in a room and when he escaped caught him, assaulted him and dragged him back and further confined him. He charged all the accused persons under Sections 342 and 353 of the Indian Penal Code.
(2.) It is obvious that in order to establish the charge under Section 353 the prosecution would have to show that the petitioner, when attacked, was acting in the discharge of his duty. The trying Magistrate held that this was not proved. The defence was that the accused persons detected the petitioner in the house at the dead of night bent upon the commission of an offence. That was not perhaps their first defence but it appears to have been that part of it on which they most relied during the later stages of the trial. This again was held not proved and the trial Magistrate convicted the accused under Sub-section 342 and 352 instead of under Section 353.
(3.) The accused persons appealed to the Sessions Judge. The petitioner s complaint here is that he was not allowed in that Court to prove that he went to Huchi s house that night on duty. The learned Sessions Judge, finding that the accused had been acquitted under Section 353, very naturally and very properly told the Public Prosecutor that he did not desire to hear him argue that part of the prosecution case. He still, however, had to consider the defence of the accused, viz., that the petitioner had gone to the house in order to commit some offence therein. It is therefore very clear that the object with, which the petitioner went to Huchi s house that night was a fact substantially in issue and one which the Sessions Judge was bound to consider and upon which he had to come to a conclusion. He again found that the allegation of the accused that the petitioner went to the house with the intention of committing some offence was not proved, but he remarked in the course of his judgment that on a perusal of all the evidence he could not doubt that the petitioner went to the house to have sexual intercourse with Huchi. The result was that the Sessions Judge confirmed the convictions and sentences appealed against.