JATINDRA MOHAN DAS Vs. EMPEROR

JUDGEMENT

(1.) The appellant has been convicted of an offence punishable under Section 373, I.P.C., by the unanimous verdict of a jury. Charges were also framed against him under Secs.366 and 498, I.P.C., but he was found not guilty. Two points have been taken on his behalf before us: (1) that the learned Judge should have directed the jury to return a verdict of not guilty on this charge; (2) that there is no evidence that the appellant obtained possession of the girl within the meaning of the section. I may note that the foreman of the jury indicated that in their opinion the girl in question was above sixteen but below eighteen years of rage. In order to understand the arguments addressed to us certain facts alleged by the prosecution require to be stated. The appellant is a clerk in the Income-tax Department and was attached to the office in Khulna. The girl Parulbala is the wife of one Bidhu Bhusan Das, son of Manindra Das, who were both peons attached to the office. The appellant used to have his food in their house served by Parulbala. The appellant made overtures to her and it appears that they fell in love with each other. At any rate when the appellant was transferred to Barisal, he asked her to run away with him and she agreed. Accordingly she left a letter to say that she had run away of her own accord and they went together to the steamer. However before the steamer left she was taken home by her father-in-law. But she ran away again and the couple eventually reached Barisal.

(2.) Now the prosecution never suggested that the intention of the appellant was other than to have intercourse with the girl himself. Nor is it alleged that he obtained possession of her from a third person. It has accordingly been contended by Mr. Chatterjee that 8. 373, I.P.C., has no application to such a case. He strongly relied upon the old decision of the Madras High Court in Queen V/s. Shaik Ali (1870) 5 M H C 473. I am bound to say that, as I understand that decision, he is supported by the opinion of the majority of the Judges. On the other hand the learned Deputy Legal Remembrancer has relied upon a recent decision in Bhagchand Jasraj V/s. Emperor AIR 1934 Bom 200 which, following an earlier decision of that Court, dissents from the Madras view. In my opinion it would be perfectly idle to contend that Section 373 is to be read as a self-contained whole without any reference to its immediate predecessor. It seems to me that they are correlative of each other, being aimed against what may be broadly described as trafficking in girls under the age of eighteen. On this view the words "otherwise obtains possession" must be construed ejusdem generis with "buying" and "hiring." The wording of the two sections is extremely close. Clearly "sells" in Section 372 corresponds with "buys" in 8. 373; similarly "lets to hire" corresponds with "hires". In my opinion it would be a strained interpretation of Section 373 to hold that "otherwise obtains possession" does not correspond with "otherwise disposes of". It is not difficult to find examples. If the mother of an illegitimate girl, whom she is unable or unwilling to maintain, made her over to the keeper of a brothel with the intent that she may be used for purposes of prostitution, the mother is guilty under Section 372 and the keeper of the brothel under Section 373.

(3.) It has been suggested that the effect of the Madras decision has been nullified by the amendment of the section in 1924. I can find no foundation for that suggestion. The effect of the amendment is merely to enlarge the scope of the "intent"; it has in no way enlarged the meaning of the words "otherwise obtains possession". In my opinion if the Madras decision was good law before the amendment, it is good law now. I respectfully agree with it and must therefore hold that the learned Judge should have directed the jury to return a verdict of not guilty on this charge. I am further of opinion that the word "possession" implies some sort of control. In the present case there is no evidence that the appellant exercised any sort of control over the girl. Indeed it is difficult to appreciate on what view of the evidence a jury could find the appellant not guilty under Section 498 but guilty under Section 373. The girl ran away with him of her own accord. In spite of the fact that she was taken home by her father- in-law, she ran away again and re-joined the appellant. In fact there is nothing to show that he had possession of her in any sense of the term or that he attempted to control her movements in any way: as far as one can see, there was nothing to prevent her from leaving him at any moment she chose. For these reasons I am of opinion that this appeal must be allowed, the conviction and sentence set aside and the appellant discharged from his bail. Cunliffe, J.