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1933 (3) TMI 24

..... Sessions Judge of Belgaum under Section 307 of the Criminal Procedure Code. The accused was charged with offences under Sections 366 and 376 of the Indian Penal Code and the jury brought in a verdict of not guilty of any offence. The learned Judge had told the jury that it would be open to them to bring in a verdict of simple kidnapping under Section 363, but that in order to justify such a verdict they must be satisfied that the age of the girl kidnapped was under sixteen at the time of the offence. The learned Judge is of opinion that the verdict of the jury was wrong, and that the accused should have been convicted under Section 363 of the Indian Penal Code, and he has, therefore, referred the matter to us. 2. If the learned Judge was right in charging the jury that they must be satisfied that the age of the girl at the time of the offence was under sixteen, it is, in my opinion, impossible to say that the verdict of the jury was perverse. The evidence, particularly that of the mother and the doctors, appears to show that the girl was probably just under sixteen at the time of the offence. But the evidence is by no means clear, and I think that the jury was justified in saying t .....

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..... t of a person who can be the subject of lawful guardianship, that is to say, a minor or a person of unsound mind. But there is nothing in the wording of Section 363 to suggest that the minor must be below the ages specified in Section 361. It is argued that, having regard to the scheme of the Code, which is first to define an offence and then by a later section to impose a penalty for the commission of that offence, and to the relative positions of the sections to which I have referred, the Court should hold that the offence of kidnapping from lawful guardianship constituted by Section 363 relates only to the offence defined in Section 361. It is clear that the two sections do not in terms correspond. To make the offence constituted by Section 363 correspond to the definition in Section 361 it would be necessary either to read Section 361 as saying that whoever takes or entices any minor under the ages specified or any person of unsound mind as mentioned is said to kidnap a person from lawful guardianship, reading the words "a person", in place of the words "such minor or person", or to read Section 363 as providing that whoever kidnaps any person from British I .....

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..... ons which in fact do not correspond. In my opinion, therefore, we ought to accept the reference and convict the accused under Section 363, but as my learned brethren take a different view of the law, the reference must be rejected. S.J. Murphy, J. 7. The point for the decision of the full bench arises on Sections 361 and 363 of the Indian Penal Code. The former section defines the offence of kidnapping from lawful guardianship and limits the cases to those committed against persons who are, if males, under the age of fourteen, and if females, under the age of sixteen. Section 363 provides the punishment for kidnapping from lawful guardianship but does not repeat the phrases enacting the two age limits, and as it stands, makes punishable all kidnapping from lawful guardianship, which, in the ordinary sense, would mean of persons who have a lawful guardian, that is, all persons of unsound mind, and others under eighteen or twenty-one, as the case may be, these being the two possible limits of minority. 8. In the case before us the girl in question must have been found by the jury to have been over sixteen or at least the jury must have thought that it had not been proved that she was .....

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..... ed advocate also relies upon the connected sections in the same chapter which follow Section 363. 12. The point thus raised has not come up for decision specifically in any reported case. There are, however, numerous decisions of the Indian High Courts which show that as soon as it was found in any case that the victim of the outrage was a boy over fourteen or a girl over sixteen, even though he or she may be a minor under eighteen years of age, the Courts have refused to convict the accused under Section 363, and have thus in effect held that the second offence mentioned in Section 363 is the same offence as defined in Section 361. The question then is whether the construction which seems to have been uniformly put on Section 363 so far is correct. 13. At the outset I should like to refer to certain general principles which, I think, are applicable in this case. The scheme of the Act, generally speaking, is that there is first a definition of an offence, and then a penal provision relating to it. Unless the case falls within the ambit of the definition, there is no offence. Accordingly, the sections with which we are concerned here appear in Ch. XVI, under the heading, "Of ki .....

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..... inted under the Guardians and Wards Act. But would it include the case of a person to whom the custody of a minor is entrusted ? By the explanation to Section 361 the term "guardian" has been extended to any person lawfully entrusted with the care and custody of the minor. If it be said that for that purpose the Court may adopt the definition of that expression in Section 361, the answer would be that that definition is limited only to that section and only for the purpose of that section. Without this explanation the guardianship would be limited to lawful guardianship in its legal sense. The explanation says that the term "lawful guardian" is to be understood in that extended sense only "in this section," i.e., Section 361. 14. Mr. Rao refers to the sections which follow Section 363. These lay down punishments for aggravated forms of offence of kidnapping as defined in Section 359, 360 and 361, and the offence of abduction as defined in Section 362, with certain objects and with certain motives, and that accounts for the expression "any person" occurring in those sections. It seems to be clear that wherever the word "kidnaps" occu .....

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..... in a sense different from that in which they are used in Section 361. 18. It is said that on principle it is difficult to see why a boy of fourteen or a girl of sixteen should be protected and not a boy of fifteen or a girl of seventeen. The policy of legislature in fixing the age limits in the case of certain offences is a matter of no concern on the question of the construction of the statute. The Indian Penal Code was enacted in 1860. The Indian Majority Act was enacted in 1875. When the Indian Penal Code was enacted the age of majority was fifteen in Bengal and sixteen in this Presidency in the case of Hindu minors under the Hindu law. In the case of Mahomedans the age was the age when the minor, male or female, attained puberty, which was presumed at the latest to be the completion of fifteen years. The fact, therefore, that the ages of fourteen and sixteen are specified in Section 361 seems to indicate that the legislature did not intend that the offences of kidnapping from lawful guardianship should depend upon the age of majority under the personal law of the Hindus and Mahomedans, and the legislature seem to have considered that for the purpose of such an offence the age .....

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