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Emperor Vs. Ayubkhan Mirsultan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberFourth Criminal Sessions Case No. 9 of 1943
Judge
Reported inAIR1944Bom159; (1944)46BOMLR203
AppellantEmperor
RespondentAyubkhan Mirsultan
Excerpt:
.....a girl, over fourteen and under sixteen years of age and in lawful custody, constents to an act of illicit intercourse with a man and is persuaded to elope with him for that purpose, the offence of kidnapping punishable under section 366 of the indian penal code, 1860, is committed.; emperor v. laxman bala (1934) i.l.r. 59 bom. 652 : s.c. 37 bom. l.r. 176, followed.; emperor v. baijnath (1932) 33 cr. l.j. 669, dissented from. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post..........that if a girl, being over fourteen and under sixteen and in lawful custody, consents to an act of illicit intercourse with a man and is persuaded to elope with that man for that purpose no offence under section 366 of the indian penal code, 1860, is committed, but it may be an offence under section 363. this court has already held in emperor, v. laxman bala i.l.r. (1934) 59 bom. 652 that a previous act of illicit intercourse between the kidnapper and the girl does not prevent an offence under section 366 being committed. i respectfully agree with the dissent expressed in that judgment from emperor v. baijnath (1932) 33 cr.l.j. 669. the point does not seem to be exactly covered by authorities, but i am prepared to hold that even on mr. joseph's supposition an offence under section 366 is.....
Judgment:

Blagden, J.

1. Joseph's submission here is that if a girl, being over fourteen and under sixteen and in lawful custody, consents to an act of illicit intercourse with a man and is persuaded to elope with that man for that purpose no offence under Section 366 of the Indian Penal Code, 1860, is committed, but it may be an offence under Section 363. This Court has already held in Emperor, v. Laxman Bala I.L.R. (1934) 59 Bom. 652 that a previous act of illicit intercourse between the kidnapper and the girl does not prevent an offence under Section 366 being committed. I respectfully agree with the dissent expressed in that judgment from Emperor v. Baijnath (1932) 33 Cr.L.J. 669. The point does not seem to be exactly covered by authorities, but I am prepared to hold that even on Mr. Joseph's supposition an offence under Section 366 is possible. The girl's consent might always be revoked, and if it were revoked force or a further seduction would be essential before an act of illicit intercourse could take place; and even if it were not revoked, it is difficult to see how the act of illicit intercourse could take place without at least some overture, however slight, being made by the male person, which overture, however slight, could properly be called a 'seduction' to 'illicit intercourse.'

2. Note. The trial proceeded. The verdict of the jury was that both the accused were not guilty. The accused were accordingly acquitted-Eds.


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