1. This is an application by Sarnam Singh, Kishen Lal and Ram Phool alias Man Phool who were tried by a Magistrate of the first class under Section 368, Penal Code, and sentenced to one year's rigorous imprisonment and Rs. 100 fine. Their conviction and sentence were affirmed in appeal by the learned Sessions Judge.
2. In revision it has been argued before me that the learned Magistrate had no jurisdiction to try this case. It is said that under Section 368, Penal Code, the accused who wrongfully conceals or keeps in confinement a kidnapped or abducted girl shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge or for the same purpose as with that or for which he conceals or detains such person in confinement. The argument is that it is possible that according to circumstances an offence under Section 368, Penal Code, might be punishable in the same manner as an offence under Section 363, Penal Code, or as an offence under Section 366, Penal Code. An offence under Section 363, Penal Code, is triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class, but an offence under Section 366, Penal Code is triable exclusively by a Court of Session.
3. In the present case the prosecution case is that the girl in question was wrongfully concealed for the purpose of forcing her to illicit intercourse and therefore the present accused would be liable to punishment in the same manner as an accused under Section 366, Penal Code. The present offence under Section 368, Penal Code, according to the contention of the learned advocate for the applicants, was triable exclusively by the Court of Session, inasmuch as an offence under Section 366, Penal Code, is exclusively triable by a Court of Session.
4. I am Unhesitatingly of the opinion that the contention of the applicant, though plausible, has no substance. Section 368, Penal Code, according, to the Schedule is triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class and not exclusively by a Court of Session. Learned Counsel however argues that three classes of Courts are given in the Schedule and the meaning of the legislature is that a particular offence will be triable by a particular Court according to the knowledge or the intention of the accused. The words used in the section however are 'shall be punished in the same manner' and not 'shall be tried and punished in the same manner.' Punishment begins after the trial is over and docs not commence with the initiation of the trial. It was then said that if a particular offence under Section 368, Penal Code, can be punished, by reason of his intention, knowledge or purpose, to imprisonment of either description for ten years and fine then he should be tried exclusively by a Court of Session. That, it was said, was the policy of the legislature. Here again, I find that the factor which determines the Court by which an offence is to be tried is not the amount of punishment to which the offender may be liable but the seriousness of the offence itself. For instance, several offences where the punishment provided is up to seven years are triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class (Section 325, Penal Code, may be mentioned) and as against this, under Section 218, Penal Code, the punishment is only three years and yet the offence is triable by a Court of Session exclusively.
5. I am therefore of the opinion that neither on the wording of Section 366, Penal Code, nor on the policy of the legislature can it be argued that an offence under Section 368, Penal Code, should be tried by a Court of Session when the girl was wrongfully confined or concealed for the purpose of forcing her to illicit intercourse. It might be mentioned here that in connection with Section 109, Penal Code, it has been distinctly stated in the Schedule that the offence will be tried by the Court by which the offence abetted is triable and there was nothing to prevent the legislature from using the same phraseology in the Schedule when Section 368, Penal Code, was mentioned. The applicants' contention does not gain any strength because of the expression 'in the same manner' in Section 368, Penal Code.
6. The next contention that was advanced before me was that the learned Sessions Judge should not have rejected the application of the accused under Section 428, Criminal P.C. It appears that on 4th April 1934, two months before the appeal was actually heard, the applicants presented a petition to the learned Sessions Judge by which they prayed that further evidence on the following particulars : (a) the production and proof of the first information report about the case and further examination of the complainant with respect to it, her age and her alleged concealment (b) the production of the record of the case - Pem Singh, complainant, versus Ram Chander and others accused under Section 498, Penal Code - and proof of certain papers in that record such as report, etc., if necessary, be taken. This application was supported by an affidavit in which it was stated that the applicants were not aware of a report made by Mt. Renuka before the Police. It was mentioned in the application that the statement of Mt. Renuka made before the Police Officer at Barla Police Station was in direct conflict with the evidence given by her in the present case and that if that report had been before the Court then the accused could not have been convicted.
7. The learned Judge thinks that the applicants could have known of the existence of this report if they had used due diligence. The proceedings in this case in the presence of the accused commenced in the Court of the trial Magistrate on 21st January 1934, and finished on 29th January 1934. It may be that the applicants were in great trouble during these eight days and they could not find out even with due diligence that Mt. Renuka, the complainant, had made a statement before the Police at Barla on or about 20th May 1933.
8. I am of the opinion that the application of the accused dated 4th April 1934, ought to have been granted, and my reasons are that it was the duty of the prosecution in the present case to have placed that report before the Court and if the prosecution did not do so and as the accused had not come to know of this report at an earlier stage, in the interest of justice, it was necessary that additional evidence should have been taken by the learned Sessions Judge. I have not gone into the merits of the case and I am not prepared either to differ from the findings of the Courts below or to agree with them at this stage.
9. The result is that I allow this application, set aside the order of the learned Sessions Judge and allowing the application of the applicants to the learned Sessions Judge, dated 4th April 1934, which application was reiterated before me orally, I direct the learned Judge to take the evidence mentioned in the application himself and re-hear the appeal after taking into consideration the materials on the record and the additional evidence taken by the learned Judge.