RAMESHWAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) This case has come up to us in somewhat unusual circumstances. The facts leading up to this reference by the Additional Sessions Judge of Snauabad are these: The accused Rameshwar Singh was tried before the Assistant Sessions Judge of Suahabad under Section 417 and Section 36b, Indian Penal Code. There were two alternative charges under Section 36(3), one of abducuug and the other of kidnapping girl Chhaita with intent that she may either be compelled to marry against her will or seduced or forced to illicit intercourse. The case of the prosecution was that one Musammat Chhatia, daughter of one Gajinder Rai, the complainant in the case, was kidnapped by one Khublal Singhf On his complaint the Hub-Divisional Magistrate issued a search warrant for her recovery. Later on, somehow or other Gajinder Rai got back the girl, and filed an application to this effect before the Sub-Divisional Magistrate who recalled the search warrant and ordered the girl to be produced before him on May 20, 1936. This was not done and the learned Magistrate ordered her production on May 29, 1936. Gajinder Rai's case is that the accused Rameshwar Singh who was looking after the criminal case on his behalf went to his house on May 20, 1936, and in his absence told his wife Moti Jhari that the girl had to be produced before the Sub-Divisional Officer and asked her to allow the girl to accompany him for production before the Court. Moti Jhari allowed the girl to go with the accused, but instead of taking her to the Court the accused took her on an ekka to his own house at Sinha. When Gajinder Rai returned home from Arrah and heard that the girl had been sent with the accused, he suspected his intentions and went to his house at, Sinha and demanded the restoration of the girl. The accused did not consent and said that he intended to marry her. Thereupon Gajinder Rai apprehending a breach of the peace left the village and came to Arrah for filing a complaint in Court. As the time for filing the complaint was over it was not filed on the 21st, but on, the next day, that is, on May 22, 1936. On that complaint the Sub-Divisional Magistrate issued a search warrant for recovery of the girl, which was not executed for about two months. The accused surrendered in Court on June 22, and produced the girl on July 22, 19J6, in the meantime the case was made over for disposal to an Honorary Magistrate, who did not examine the girl till a very late stage of the case. The accused was committed for trial to the Court of Session on the facts stated above. The defence of the accused was that the girl was made Over to him by her parents for marriage for a consideration of Rs. 400 out of which Rs. 300 was actually paid and the marriage was in fact performed by the father himself and that this false case was instituted as the accused did not pay the balance, i e. Rs. 100.

(2.) The offence under Section 366, Indian Penal Code, is triable by a jury, and the one under Section 417, Indian Penal Code, with the aid of assessors. The same gentlemen who constituted the jury for the trial of the first offence acted as assessors for the trial of the second offence. The charge of the learned Assist ant (Sessions Judge to which I will come later was as strongly for the acquittal of the accused as a charge can be. He pointed out to the jury the weakness and improbabilities of the prosecution case and the discrepancies in the evidence of witnesses. The jury, however unanimously found the accused guilty of abduction under Section 366, Indian Penal Code, and as assessors, found him guilty under Section 417, Indian Penal Code. The learned Assistant Sessions Judge, wrote a short judgment referring mostly to his charge to the jury, did not agree with the opinion of the assessors in respect of the offence under Section 417, Indian Penal Code, and acquitted the accused of that charge. He.did not, however, think himself justified in referring the case to this Court under Section 307, Criminal Procedure Code, in respect of the offence of abduction and accepting the verdict of the jury sentenced the accused to one year's rigorous imprisonment.

(3.) Rameshwar Singh appealed to the Sessions Court. The learned Additional Sessions Judge who heard the appeal agreed with the views of the learned Assistant Sessions Judge and held that the charge was not proved. He was strongly of opinion that in the circumstances of the case it was the duty of the learned Assistant Sessions Judge to refer the case to this Court under Section 307, Criminal Procedure Code. He held, and in my opinion rightly held, that cheating which is punishable under Section 417, Indian Penal Code, was an ingredient of the offence of abduction as the prosecution case was that the girl was induced to go with the accused by deceitful means and these deceitful means were the subject-matter of the charge of cheating. Therefore, j? the learned Assistant Sessions Judge was strongly of opinion that deceitful means were not used by the accused and acquitted him of cheating, he ought not to have accepted the verdict of the jury in respect of abduction. The learned Additional Sessions Judge was, however, of opinion that there was no misdirection in the charge to the jury, and the case did not come under Section 423(2), Criminal Procedure Code, and he, therefore, found himself unable to interfere in appeal. He considered two alternative courses which he thought were open to him. One was to make a recommendation, to the Local Government to intervene and remit the sentence and the other was to refer the case to this Court under Section 438, Criminal Procedure Code, for an order on the Assistant Sessions Judge to refer the case to this Court under Section 307, Criminal Procedure Code. He adopted the latter course and relying upon the observation of Mukerji, J., in Saroda Charan Mistri v. Emperor AIR 1925 Cl. 795 : 7 Ind. Cas. 606 : 6 Cr. LJ 1006 : 41 CLJ 320, has recommended for an order on the Assistant Sessions Judge to refer the case to this Court.