1. The Sub-Inspector of Police, Simhadripuram filed a charge sheet against twelve accused for offences punishable under Ss. 147, 148, 324, 326,367 and 149 I.P.C. in the Court of the Judicial Second Class Magistrate, Pulivendia. The latter took it on the fileas P.R.C. No. 5 of 1961, framed charges under Ss. 147, 324,325,326, read with 149 367 against A. 1, A. 3, A.4,A.6, A.9, A.10, and A.11and under S. 148, 324, 325, 326,read with 149 and 367 against A-2, A-5, A-8 and A-12 and committed them to take their trial in the Court of Sessions Cuddapah Division. Thereupon, the twelve accused felt aggrieved with that order and filed this petition under S. 561-A Cr. P. C. to quash the order of committal.
(2) In the present case, the charge under S. 367 I.P.C. against the accused is that they dragged the complainant from one place to another so that he may be subjected to grievous hurt. It is also the case of the prosecution that the accused caused grievous hurt which is the subject of charges under Ss. 325 and 326 I. P. C. It is beyond doubt or dispute that, of all charge which is triable exclusively by the Court of Session is the charge under S. 367 I.P.C. and that all the other charges including the charges under Ss. 325 and 326 J.P.C. are triable by a Frist Class Magistrate.
(3) The contention of Sri A Bhujangarao for the petitioners is that in view of the fact that the accused are alleged to have committed offences under Ss. 325 and 326 I.P.C. none of them can be charged with an offence under S. 367 I.P.C. The reason he urges is that S. 367 I.P.C. is only an offence of being kidnapped or abducted for the purpose of causing grievous hurt so far as this case is concerned and that grievous hurt has actually been caused according to the prosecution. Section 367 I.P.C. runs thus:
'Whoever Kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery or to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine'.
For purposes of convenience, I shall hereafter refer to in this judgment the act of dragging concerned in S. 367 I.P.C. as an auxiliary act and offence under Sec. 367, I.P.C. as an auxiliary offence in relation to the act and offence of causing grievous hurt under Ss. 325 and 326 I.P.C. Which I shall refer to as the main act and the main offence. I am also referring to an offence like Sec. 367, I.P.C. (Which is triable only by a Court of Sessions as the lowest Court which can try the offence) as an offence of higher level in relations to the offence of S. 326 I.P.C. (regarding which the lowest court that can try is a Magistrate of the Frist Class a Court lower in level than a court of Session) as an offence of lower level.
(4) In Upendranath v. Emperor, AIR 1940 Cal 561 the Calcutta High Court observed as follows: (at p. 564)
'When the case of the prosecution is that the person abducted has been murdered by the abductor, there can be no scope for a charge under this Section (S. 364, I.P.C.). The abductor should be charged with murder pure and simple'. But the learned Judges also observed as follows:
'We have noticed however in such cases, where the evidence to establish the charge of murder is weak or inconclusive the prosecution is prone to adopt this device of adding or preferring a chargeunder S. 364, 'Penal Code in the hope that a jury which may hesitate to find the accused guilty of murder on such slender evidence may be induced to find against him in the lesser charge'.
In that case, the offence under Sec. 364, I.P.C. which is punishable with imprisonment for life or ten years was treated as lesser charge in relation to the offence under Sec. 302, I.P.C. Which was certainly a greater charge being offence punishable with death or imprisonment for life. The offence under Sec. 364,I.P.C. was triable by a Court of Session just like the offence under Sec. 302 I.P.C. In this case, the main offence under Sec. 326 is punishable with imprisonment for life or imprisonment for ten years but all the same, it is triable by the Court of Session or Magistrate of the Frist Class. Where as, the offence under Sec.367, I.P.C. though it is punishable with imprisonment for ten years, a maximum sentence which is less than the maximum sentence that can be inflicted under Sec. 326, I.P.C. is still triable only by a court of Session and not by a Magistrate of the Frist Class.
(5) In Akam Sheikh v.Emperor AIR 1947 Cal 35 at p. 36 a Division
Bench of the Calcutta High Court held that where the prosecution case was that the accused murdered the deceased or abetted his murder and that the murder was committed in consequence of abduction of the deceased by the accused, the charge could be framed only under S. 302 or under Sec. 302 read with Sec. 109 but could not be dealt with under Sec. 364 in that particular case, the offence under Sec.364 was tried by an Assistant Sessions Judge but the learned Judges observed thus(at page 36).
'The offences are triable only by a Sessions Judge. This jurisdiction cannot be avoided nor can jurisdiction be given to an Assistant Sessions Judge, by dealing with the case as one under sec. 364, penal coad as we have had frequent occasions to point out, S. 364 is mainly a special case of enhanced punishment for a particular type of abetment of murder. The enhanced punishment will be applicable even though the murder is not committed in consequence of the abduction.'
The learned Judges decided that case on the basis that the offence concerned really amounted to offence under Sec. 302 or Sec. 320 read with Sec. 109, I.P.C. the maximum punishment for which could be capital sentence.
(6) In Kalaporla Saidulu v. Hyderabad Government, AIR 1953 Hyd 249 a Division Bench of the Hyderabad High Court consisting of Manohar Pershad and Saidat Ali Khan, JJ. approved the decision of the Calcutta High Court in AIR 1940 Cal 561, Jjjatulla Akanda v. Emperor, AIR 1945 Cal 42 and AIR 1947 Cal 35 and referred to them as follows:
'.....Wherin it has been held that when the case of the prosecution is that the person abducted has been murdered by the abductor, there is no scope for the charge under Sec.364 of the Indian Penal Code.
We respectfully agree with the above proposition of law.............
Subsequently, in vadla Kistiah v. State of Hyderabad, AIR 1954 Hyd 88 at p. 89 a Division Bench of the Hyderabad High Court consisting of Mohd. Ahmed Ansari and Jaganmohan Reddy, JJ. considered all the above decisions, individually disidered all the above decisions, individually discussed each of them and observed thus:(at p. 89.)
'In our view the authorities do not support submissions of the learned Advocate for the appellants that where an accused is charged under Secs. 302, and 364, I.P.C. (or under the corresponding provisions of the Hyderabad Penal Code) and has been acquitted on a charge of murder, he cannot be convcted under S. 364 notwithstanding the fact that it is proved that the accused kindnapped or abducted the deceased in order that the said person nay be murdered or so disposed of as to put him in danger of being murdered. An examination of the above cases would clearly show that this was not what was decided therein.' In effect they held that there could be a charge under Sec. 364, I.P.C also against an accused when there was a charge against him under Section 302, I. P. C. regarding the murder which was the main offence in relation to Sec. 364, I.P.C. which was an auxiliary offence. The learned Judges confirmed the conviction and sentence awarded to the accused under Sec. 301, Hyderabad Penal Code (corresponding to Sec. 364, I.P.C.) read with Sec. 125, Hyderabad Penal Code (corresponding to Sec. 149, I.P.C. ). I repectfully follow the decision in AIR 1954 Hyd 88 wherein the pervious decisions have been discussed and explained. The five decisions mentioned above dealt with Sec. 364, I.P.C.(Sec. 301,Hyderabad penal Code) as auxiliary offence and Sec. 302, I.P.C. (or corresponding provision under the Hyderabad Penal Code) as the main offence. In those cases, the auxiliary offence was a lesser offence and also an offence and also an offence of lower level as compared to the greater and main offence. In the present case, the auxiliary offence is lesser than the main offence under Sec. 326, I.P.C. but is an offence of higher level as compared to Sec. 327, I.P.C. As the charge under Sec. 367, I.P.C. can stand when there is a charge under Sec. 326 and also under Sec. 325, the case can be tried only by a Court of Session because Sec. 367, I.P.C. is triable exclusively by a Court of session.
(7) Sri A. Bhujangarao relies on the following passage in Dr. Sir Hari
Singh Gour's 'The Penal Law of India (6th Edition 1958 (Volune 2)' at page 1648:
'This section (Sec. 367) is in a sense supplementary to the last: in other respects it differs. It is supplementary in so far as it punishes kidnapping for the illegal gratification of lust; it differs in so far as it mentions two other circumstances as aggravation the crime. These are the causing of grievous hurt and slavery. In so far as it punishes kidnapping for the purpose of causing grivous hurt, the section is of a piece with Sec. 364 which punishes the sane offence committed with the object of committing murder. The language of the two is similar, and they must both be understood in the same sense. But in one respect this section differs as it punishes not only the intention but also the knowledge of likelihood.'
This passage is not helpful in any way to support the contention of the learned Advocate for the petitioners that there cannot be a charge under Sec. 367, I.P.C. when there is a charge under Sec. 325 or Sec. 326, I.P.C. 364, I.P.C. is similar in certain respects to Sec. 367, I.P.C. and not in all.
(8) There is clear indication in the Code of Criminal Procedure that a person can be charged with an auxiliary offence when he stands charged with the main offence itself. For example, illustration (c) to Sec. 235, Cri. P. C. reads:
'A entices B, the wife of C, away from C, with intent to commit adultery with B, and then commits adultery with her. A may be separately charged with and convicted of, offences under sections 497 and 497 of the Indian Penal Code'. the offence of enticing under S. 498, I.P.C. is an auxiliary offence in relation to the offence of adultery under Sec. 497, I.P.C. which is the main offence. Column 8 in schedule 11 to Code of Criminal Procedure shows against each offence the various Courts which can try that offence. Ordinarily the Court of lowest level which is mentioned against the section tries the offence. In some exceptional cases, e.g. Sec. 397, I. P. C. Which provides for a minimum sentence of seven years, Courts (Magistrates) whose powers fall short of the minmum, obviously cannot try them. Provision for trial of that oftence is only by Court of Sessions. If the auxiliary offence is an offence of a higher level than the main offence in the sense that the minimum level of court which can try the auxiliary offence is higher than the minimum level of Court which can try the main offence the case becomes triable only by the higher court which can try the auxiliary offence. Even otherwise an offence need not necessarily be always tried by the Court of the lowest level (as shown in the Code) which can try it. But any Court of higher level specified against the offence can also try the offence. If the court of the lowest level (or other competent Court) mentioned against any particular offence considers that it cannot impose sentence which the seriousness of the particular offence, based on the facts of the case, require, then, it is open for that Court itself to hold and act on the basis that the case should be tried by a Court of higher level.
It follows that the Magisrtrate can commit to Sessions even cases in which the minimum level of Court which can try an offence is lower than the Court of Session and is a court of Magistrate. Such committal can be proper and even necessary in certain circumstances i.e., offence appearing from the facts to be so serious as to indicate prime facie that it requires punishment which can be given only by a Sessions Courts. There may be various other considerations which may require a case to be tried by a court of higher level than the lowest level that can try the case as seen irom the entries mentioned against the various sections in the Schedule. Even regarding institution there is no provision in the Code of Criminal Procedure corresponding to Sec. 15 of the Civil Procedure Code which provides that 'every suit shall be instituted in the Court of the lowest grade competent to try it'. It is obvious that under certain justifiable circumstances dependent on the facts of the case, the trial by a court of higher level than the lowest level prescribed in the Schedule to the Code may be desirable in addition to being technically lawful. In this case, charge under Sec. 367, I.P.C. can be framed along with Secs. 325 and 326, I.P.C. Offence under Sec. 367, I.P.C. is triable only by a Court of Session and it cannot be tried by a Magistrate. An offence like Sec. 326, I.P.C. which is triable by a Frist Class Magistrate, can be tried by Sessions Court if committed, to it by competent Magistrate. Consequently the committal by the learned Magistrate is justified and is not liable to be quashed.
(9) In R. P. Kanpur v. State of Punjab : 1960CriLJ1239 thier Lordships of the Supreme Court observed about the nature and scope of the inherent jurisdiction of the High Court under section 561-A Cri. P. C. in the matter of quashing criminal proceedings thus: (at page 62).
'I is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfer with the said proceedings at an interlocutory stage. It is not possible desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings.
(a) There may be cases where it may be possible for the High Court to take the view that the institution or con inuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been commited by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of there quisite sanction may, for instance, furnish cases under this category.
(b) Cases may also arise where the allegations in the Frist information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of apan