Ram Labhaya, J.
1. This petn. of revn. is directed against an order of the Addl. Ses. J., L.A.D., dated 22-6-1950 by which the convictions of the petnrs. Under Section 363, I. P.C. were confirmed & the sentences awarded to them upheld. The peters, were sentenced each to undergo R. I. for 3 months. They were also sentenced to a fine of Rs. 100/-each & in default of its payment to R. I. for one month.
2. The prosecution case was that the complain ant Ganesh Kumar Bhowick was the guardian of the minor girl Kamala aged about 9 or 10 years. On 18-6-1949, the minor was removed from the custody of her guardian during his absence. The minor, according to the prosecution case, was kept confined in the house of Khudiram Biswas, petnr. 3. The petnrs. are said to have intended giving the minor away in marriage to petnr. 2. The learned trial Mag. found that the girl was a minor & that she was removed from the custody of the complainant who was lawfully entrusted with the care & the custody of the minor.
3. The learned Counsel for the petnrs. has raised only one contention. He has urged that the complainant was not the lawful guardian & therefore conviction Under Section 363, I. P.C. could not be sustained.
4. We do not think that there is any force in this argument. It is true that the maternal grandmother of the minor was alive & the complainant was a cousin. But the finding arrived at in the case is that the minor was living with the complainant, her cousin, since the death of her mother. She is an orphan. The maternal grandmother lived by begging. The complainant, therefore, had the custody of the minor with her consent which was necessarily implied. He was thus the 'de facto' guardian of the minor. As held in 'Banamali v. Emperor' 22 Pat 263, the lawful guardian Under Section 361, I. P.C. would include a 'de facto' guardian. In that case ,a married girl ran away from her husband's house. She remained away for a period of five or six years & lived with her mother, it was held that she was not In the 'keeping' of her husband but of her mother within the meaning of Section 361.
5. We agree with the view of the law taken in that case, & hold that in the circumstances of this case, the complainant being a 'de facto' guardian of the minor could be treated as lawful guardian for purposes of Section 361, I. P.C.
6. The convictions of the petnrs. in these circumstances cannot be found to be illegal or unsustainable & they must be maintained. The petnrs. were allowed bail as the term of imprisonment to which they were sentenced was short. No useful purpose would be served by sending them back to jail. The sentence of imprisonment in the case of each is reduced to the period already undergone. The sentence of fine shall stand. The petn. is allowed to the extent indicated above.
7. The rule is disposed of accordingly.
8. I agree.