Srinivasa Aiyangar, J.
1. The petitioner in this Criminal Revision Case was convicted by the First Class Sub-divisional Magistrate of Vellore for the offence of kidnapping a girl from lawful guardianship under Section 363, Indian Penal Code. In this petition I am not concerned with the 2nd accused who has been acquitted, on appeal, by the Sessions Judge. In the appeal which was preferred by both the accused the learned Sessions Judge while confirming the conviction of the petitioner reduced the sentence with regard to him to rigorous imprisonment for one year instead of two years. Mr. V.L. Ethiraj, the learned Counsel for the petitioner, took only two points before me. His first contention was that the facts of the case indicated an offence under Section 366, Indian Penal Code, an offence exclusively triable by the Court of Session. He therefore contended that the conviction of the accused by the First Class Magistrate for the smaller offence under Section 363 was illegal and should be set aside. The argument was that, if the facts charged showed the commission of a more serious offence which was triable only by higher tribunal, the accused was entitled to be tried on the charge by that higher tribunal and that the Magistrate had no right in spite of objection raised to grasp jurisdiction by seeking to try him for the smaller offence. It is possible to agree with such a contention under special circumstances but in the present case I am not satisfied that the facts disclosed the commission of any offence under Section 366. To constitute an offence under that section it is necessary that the kidnapping should have been with intent that the girl kidnapped may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. There is no question at all in this case of any marriage. Though there is no doubt whatever that the kidnapping was or must have been with intent to have illicit intercourse, still there is nothing whatever to indicate that there was likely to be any forcing or seducing for the purpose of such illicit intercourse. In the absence of any element of forcing or seducing for the purpose of illicit intercourse, no offence under Section 366, Indian Penal Code, could be regarded as possible. I therefore reject the contention that there- was in this case any reasonable ground for the First Class Magistrate who tried the case supposing that the offence, if any, committed was an offence under Section 366, Indian Penal Code.
2. Even if it should be found that the Magistrate in this case tried the accused for an offence under a less serious section when really the offence fell under a more serious section which was beyond his competence, it has been held in Venkatrayar v. Kodi Venkatarayar : AIR1922Mad223 that his proceedings are not illegal, and therefore this Court is not bound to interfere in such cases.
3. In any case there are not materials on which I can reasonably come to the conclusion that the Magistrate clutched the jurisdiction by intentionally ignoring the facts of aggravation as was held by Venkatasubba Rao, J., in Setti Rangayya v. Somappa (1924) 20 LW 919.
4. The next point taken by the learned Counsel for the petitioner was that taking all the facts actually proved, there was no legal evidence whatever of any taking or enticing by the 1st accused of the girl so as to constitute an offence under Section 361, Indian Penal Code. There is no question in this case of any enticing, because on the facts, whatever might be held with regard to the taking, I am satisfied there has been no enticing by the 1st accused. The expression ' enticing ' involves that, while the person kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in some way by the accused. There is no such question in this case. Then, as regards taking, it has been conceded by the learned Counsel for the petitioner that that expression in the section is not confined to mere physical taking. There is such a taking as is indicated in the common expression ' If you will come along, I shall take you'. The expression ' taking out of the keeping of the lawful guardian' must therefore signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian, or, in other words, an act but for which the person would not have gone out of the keeping of the guardian as he or she did. The question thus resolves itself into whether in this case there was sufficient legal evidence before the lower courts on which they were entitled to come to the conclusion on the facts which they did that the accused was really responsible for the girl, P. W. 4, going out of the keeping of her lawful guardian, her husband. It is found by the learned Judge in the Court of Appeal that it was the girl that was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there. In fact, I find in one of the letters she is found to have written to the accused petitioner, she threatens that, if she was not taken away on that day, she would be a corpse on the following day. If a girl should have been wound up to such a pitch of hatred of her husband and of his house or house-hold and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did. After giving the matter my every careful and anxious consideration, I have come to the conclusion in this case that there is such evidence and that it is not a case in which in any view I can say that there is no legal evidence whatever on which the lower courts were not entitled to base their finding of fact. The chief point to be noted is, if the girl was in a position to escape from the keeping of the guardian by herself without any aid or assistance on the part of the accused, there was no necessity for her making such desperate appeals as she appears to have done in such exhibits as Ex. G and Ex. 2. These two letters on which an argument seems to have been attempted to be founded on behalf of the petitioner-accused himself clearly show that at any rate according to her view she was absolutely helpless and unable to leave her husband's custody unless something was done by the accused. To me it does not matter what it was that he was required to do. Undoubtedly what she wanted was that he should come and take her away or that he should in some other way afford to her that protection or assistance or promise of either which would enable her to leave her husband's guardianship. If, but for it, she should not have gone out and that was afforded finally by the accused, it cannot, it seems to me, be said that he was not the person that took her. In this case there were the letters in which she was desperately calling for him to come and take her away. There is the fact found that she was soon after discovered to be with the accused or under his control. From these two facts it is legitimately open to a Court of Law to assume that he finally yielded to the solicitations and made it possible for her to get away. I fail to see any difference between such an inference of fact and an inference of theft or of receiving stolen property in the case of a person discovered to be in possession of an article soon after it is stolen. I am therefore unable to say that this is a case in which there is no legal evidence whatever for the finding arrived at by the lower courts. Apart from that, however, I have no doubt whatever in my mind, having considered the whole of the evidence in the case, that the accused, though unwilling at first, finally yielded and provided the means of escape from the custody and guardianship of the husband. What those means were it is impossible to say and in most cases it must be impossible to find exactly; but it seems to me that that is unnecessary. I am satisfied that but for something which he consented to do and did ultimately, she would not have left the husband's house or would not have been able to leave her husband's house. That is sufficient taking in law for the purposes of Section 363, Indian Penal Code. It now remains for me only to refer to some of the cases cited by both sides in the course of the argument in this case and I shall do so briefly.
5. In the case of Regina v. Fraser and Norman (1850) 4 Cri.cas 167, Lord Chief Baron Pollock held, with reference to the contention before him, that for the purpose of unlawfully taking within the meaning of the English Statute it was necessary that taking must be by some active means such as assisting in the escape from the premises, that a mere persuading to meet at some place outside the father's house would be sufficient taking within the intention of the Statute.
6. In Reg v. Kipps (1861) 8 Cox Crl. Cases 446, it was held that it was no answer to an indictment for taking away a girl under the age of 16 years to show that the girl alleged to be abducted went away voluntarily from her home in consequence of the persuasions of the prisoner to a place at some distance where she met the prisoner and whence she went away with him without any reluctance.
7. In Reg. v. Medows (1844) 1 Car. & Kir. 399, Parke, B., and Coleridge, J., appear to have held that where the girl went away voluntarily with the prisoner having been met in the road and not going immediately from her home, the case was not within the Statute.
8. Justice Maule referring to Reg. v. Medows (1844) 1 Car. & Kir. 399 in Reg. v. Kipps (1850) 4 Cox. Crl. Cas 167 observed that if the construction apparently put upon the Statute in Reg. v. Medows (1844) 1 Car. & Kir. 399 be the right construction the Act can hardly ever be violated except in the case of children in arms.
9. In the case of The Queen v. Kumaraswami (1865) 2 MHCR 331 Bittleston, J., apparently following the English precedents held that even the fact of the woman having been the tempter and the prisoner being in the first instance reluctant to yield to her solicitations cannot render the case different from one in which the advances and solicitations are on the part of the man an 1 the woman complies and willingly leaves her husband.
10. On the whole as I have already observed, the real question for determination is merely whether the cause, whether we call it ultimate or proximate, of the woman leaving the husband was something done by the person who is accused of taking her away.
11. I am therefore satisfied that the judgment of the learned Sessions Judge in the court below was correct. I may also add that I am not sorry in the present case to have come to the conclusion that I have, in spite of the very subtle and persuasive arguments of the learned Counsel for the petitioner.
12. The Criminal Revision Petition is therefore unsustainable and is dismissed.