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Emperor Vs. Nanhua Dhimar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1931All54
AppellantEmperor
RespondentNanhua Dhimar and ors.
Excerpt:
- - they are clearly guilty of abetment. the learned sessions judge may well be justified, and if ho so chooses, in charging these three persons in the alternative for an offence of abetment, that is to say under section 366-a coupled with section 109, i......with her parents at moradabad. mt. sukhao is the sister of ganga ram ahyria, and is the wife of nanhua ahyria. nanhua and his wife mt. sukhao are residents of hapur which is within the jurisdiction of the sessions judge of meerut.3. on 14th august 1919, nanhua ahyria and his wife came to moradabad and induced mt. ram kali to leave moradabad in their company with intent that mt. ram kali may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. they took her to hapur where they were joined by nanhua dhimar and bihu chamar. nanhua ahyria, mt. sukhao, nanhua. dhimar and bihu chamar took mt. ram kali with them to hafizabad, a village in the district of gujranwala in the punjab. here they were joined by kesri chamar who is a.....
Judgment:

Sen, J.

1. Nanhua Ahyria, Mt Su-fchao, Nanhua Dhimar, Bihu Chamar and Kesri Chamar were committed to the Court of Sessions of Moradabad by a Magistrate of the 1st Class of the same district to take their trial on charges, in the alternative, under Sections 366 and 366-A, I. P.C.

2. Mt. Ram Kali is a maiden daughter of one Ganga Ram Ahyria. She is about 12 years old. She lived with her parents at Moradabad. Mt. Sukhao is the sister of Ganga Ram Ahyria, and is the wife of Nanhua Ahyria. Nanhua and his wife Mt. Sukhao are residents of Hapur which is within the jurisdiction of the Sessions Judge of Meerut.

3. On 14th August 1919, Nanhua Ahyria and his wife came to Moradabad and induced Mt. Ram Kali to leave Moradabad in their company with intent that Mt. Ram Kali may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. They took her to Hapur where they were joined by Nanhua Dhimar and Bihu Chamar. Nanhua Ahyria, Mt. Sukhao, Nanhua. Dhimar and Bihu Chamar took Mt. Ram Kali with them to Hafizabad, a village in the district of Gujranwala in the Punjab. Here they were joined by Kesri Chamar who is a resident of Hapur. From Hafizabad all the five above mentioned persons went to Rampur which is another village in Gujranwala District and is 14 miles from Hafizabad. Here they sold the girl to Barkat Ram, a Rajput Jat of Rampur for Rs. 300 representing to him that Mt. Ram Kali was a woman of the same caste as Barkat Ram. About six weeks later, the girl was recovered from the possession of Barkat Ram.

4. The learned Sessions Judge of Moradabad has tried Nanhu Ahyria and Mt. Sukhao and convicted them under Section 366-A, I. P.C. He has referred the cases of Nanhua Dhimar, Bihu Chamar and Kesri Chamar to this Court with the recommendation that the commitment of these persons be quashed as no offence was committed by these persons within the jurisdiction of the Court of session at Moradabad.

5. This reference came up before Dalai, J. He fully considered the questions involved in the reference and gave his opinion thereon. He however referred this matter to a Bench of two Judges.

6. We are in substantial accord with the views of Dalai, J.

7. It is to be remembered that the offence of kidnapping from lawful guardianship is not a continuing offence. As soon as the minor is actually removed out of the custody of his or her guardian the offence is completed. The offence is not a continuing one as long as the minor is kept out of guardianship. But unlike kidnapping abduction is a continuing offence, and has been held to be a continuing offence in re Ganga Dei v. Emperor [1914] 15 Cr. L.J. 154 which has been followed in Sunder Singh v. Emperor A.I.R. 1925 Oudh 328. It has been held in these cases that a girl is being abducted not only when she is first taken from any place put also when she is removed from one place to another.

8. There may be abduction without the removal of a person from lawful guardianship. As has been pointed out by Dalai, ,T. there is a close resemblance in the texts of Sections 362 and 366-A. We are of opinion that some of the salient ingredients of the two offences are common and that we must hold that an offence under Section 366-A is a continuing offence.

9. Section 182, Criminal P C. inter alia provides that where an offence is a continuing one and continues to be committed in more local areas than one ...it may be enquired into or tried by a Court having jurisdiction over any of such local areas.

10. The learned Sessions Judge has found that Nanhua Ahyria and Mt. Sukhao had committed an offence under Section 366-A, I. P.C. within his jurisdiction. The offence being a continuing one, the other persons, who joined Nanhua Ahyria and Mr. Sukhao at Hapur and Hafizabad and participated in the sale of the girl to Barkat Ram, are equally guilty with them. Nanhua Ahyria and his wife had prevailed upon a minor girl to leave Moradabad and go with them to Hapur. On reaching Hapur, the inducement which had commenced at Moradabad did not cease but continued to exist. The same inducement continued at Hafizabad and Rampur. If Nanhua Dhimar, Bihu Chamar and Kesri Chamar were parties to the inducement and had prevailed upon the minor girl to go from one place to another with intent that she may he, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, all the ingredients necessary for the offence under Section 366-A are present in their case. We are therefore, of opinion that although the part played by these three persons was out-aide the jurisdiction of the Moradahad Sessions Court, the learned Sessions Judge of Moradahad had jurisdiction to try the case against these persons.

11. There is yet another aspect of the case, which may be considered. The three accused persons either intentionally aided or engaged with Nanhua Ahyria and his wife in the commission of an offence under Section 366-A. They are clearly guilty of abetment. Illustration (a) to Section 180, Criminal P.C. is instructive::

A charge of abetment may be enquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed or by the Court within the local limits of whose jurisdiction the offence abetted was committed.

12. The offence abetted was one under Section 366-A, I. P.C. which was committed by Nanhua Ahyria and his wife within the jurisdiction of the Moradabad Court.. Assuming that the abetment took place either at Hapur, Hifizibad or Rampur, the charge of abetment against Nanhua Dhimar Bihu Chamar and Kesri Chamar could be enquired into and tried by the; Moradabad Court within the local limits of whose jurisdiction the principal offence was committed. The learned Sessions Judge may well be justified, and if ho so chooses, in charging these three persons in the alternative for an offence of abetment, that is to say under Section 366-A coupled with Section 109, I. P.C.

13. In the absence of more detailed particulars it is difficult to say whether any charge could be brought against all or any of the three accused persons under Section 368, I. P.C. The venue for trial of a case under Section 368, I. P.C. is evidently the Court within whose jurisdiction the kidnapped or abducted person has been wrongfully concealed or confined. If Mt. Ram Kali was wrongfully concealed' or confined at Hapur, Hafizabad or Rampur, the Court of Session at Moradabad would have no jurisdiction to try the accused under Section 368, I. P.C. The offence under Section 372, I. P.C. is distinct from that under Section 366-A, I. P.C. All the five accused persons who were committed to the Court of Session could be tried for an offence under Section 372, I. P.C. This offence however was committed at Rampur and was beyond the jurisdiction of either the Court of Session or that of a Magistrate of the First Class of the Moradabad district.

14. In view of what we have said above, the learned Sessions Judge of Moradabad has jurisdiction to try the case against. Nanlrua Dhimar, Bihu Chamar and Kesri Chamar under Section 366-A/109 or 366-A,.. I.P.C. and the trial therefore must proceed.


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