Adhik Gope and Others vs Emperor

Manohar Lall, J.—These two appeals have been heard together. The appellants were convicted in the same trial held with the aid of assessors by the learned Assistant Sessions Judge of Purnea. It is only necessary to state the facts briefly in order to indicate why we are forced to set aside the convictions without entering into the merits of the case leaving it open to the prosecution to put upon trial all or any of the accused on properly framed charges--the commitment proceedings are found to be perfectly valid. The prosecution case was that Mt. Sundari, daughter of Panchu Tatma, was living in village Pipra in Sawan two years ago. In the next Kartic, her husband died at village Damgara from where his family had migrated to village Pipra, also in the district of Purnea, where she was living with her parents as a widow near the house of one Tetar. A little later she was married in Chumauna form with Tetar of that village in Magh following thus disappointing the appellant Roudi, a rival suitor of that place. After she had been living with her second husband for about a few months it is said that Roudi accompanied by the appellant Mohan and Brihaspat and some others went to the house of Tetar during the absence of the male folk on 28-3-1944 at mid-day. Roudi and Mohan entered the house of Tetar while accused Brihaspat remained outside along with others of the party. Mt. Sundari was forcibly abducted and carried bodily from that house of Tetar to the house of Roudi and there detained till evening.'' After night-fall she was removed to the house of appellant Adhik, who also lives in the game tola of village Pipra where Roudi lives, and she was wrongfully confined there till midnight. Roudi attempted to have sexual intercourse with the woman, but she refused. Thereafter a number of persons came to Adhik''s house including the appellant Domi Sao, also of village Pipra. Domi Sao enquired of Roudi whether Mt. Sundari was amenable to his control and was prepared to go wherever she was required to. On getting an answer in the negative, Domi ordered that the ornaments of Mt. Sundari should be taken off and she should be removed to some place beyond the district of Purnea. The ornaments were then removed by accused Roudi and made over to Domi. It is said that Adhik also ordered the removal of Mt. Sundari to a place outside Purnea. At dead of night Roudi and a number of other persons,-who are not before this Court, removed Mt. Sundari to Besar, police station, Murliganj, in the district of Bhagalpur, where she was detained in the house of Saukhi Gope of that village. Mt. Sundari remained confined there for two nights, that is the whole of Tuesday and Wednesday, but on Thursday mid-night she escaped and related her pitiable story to the choukidars who kept her for the remaining part of that night in the house of one Mahabir Choukidar. Information was sent to the father at village Pipra who came at once to village Besar. Thereafter Mt. Sundari accompanied by her father and the choukidars went to Murliganj police station where heir fardbeyan was recorded. It is unnecessary to give any further details as to how the actual first information was lodged and the investigation began and was concluded.

On these allegations the appellants along; with others were committed to the Court of Session. The trial began before the learned) Assistant Sessions Judge who, in addition to the charges framed by the learned committing Magistrate, altered some of the charges and framed some additional charges. It is desirable to give in details the charges upon which the; appellants and others were put on their trial.. Roudi along with Mohan and Brihaspat was charged u/s 366, Penal Code for having abducted Mt. Sundari on 28th March 1944 at village Pipra with intent that she maybe compelled to illicit intercourse etc. They were also charged u/s 448, Penal Code for having committed house trespass on the same day by entering into the house of Tetar. Roudi and Domi were further charged under Sections 379, Penal Code for having committed theft of the ornaments of Mt. Sundari. Roudi was also charged u/s 354 for having used criminal force on Mt. Sundari with intent to outrage her modesty from 28th March to 31st March both at village Pipra and at village Besar. He was also charged u/s 342 for having wrongfully confined Mt. Sundari from 28th March to 31st March at village Pipra and at village Besar. Roudi along; with Mohan Gope and Brihaspat Gope were also charged u/s 147, Penal Code for being members of an unlawful assembly with the common object of abducting Mt. Sundari on 28th March 1944, at village Pipra. Roudi and Mohan were further charged u/s 323, Penal Code for having voluntarily caused hurt to Jhaksu Tatwa on 28th March 1944 at village Pipra--this hurt is alleged to have been caused to Jhaksu Tatwa when he was trying to obstructs the forcible removal of Mt. Sundari on 28th of March.

Mohan, as already stated, was charged under Sections 366, 448, 147 and 323, Penal Code. Mohan, along with Adhik and Domi, appellants, were also charged u/s 342, Penal Code for having wrongfully confined Mt. Sundari at village Pipra and at village Besar from 28tb March to 31st March 1944. Domi along with Adhik, appellant and others who are not appellants were charged u/s 366/114, Penal Code for having abetted the abduction of Mt. Sundari by accused Roudi, Mohan and Brihaspat on 28th of March 1944, at village Pipra. Domi was also charged, as already stated, u/s 379 for having committed theft of the ornaments of Mt. Sundari. He, as already stated, was also charged u/s 342, Penal Code for having wrongfully confined Mt. Sundari from 28th March 1944 to 31st March 1944 at village Pipra and at village Besar. The last appellant Adhik was charged u/s 366/114, Penal Code for having abetted the abduction of Mt. Sundari by Roudi, Mohan and Brihaspat on 28th March at village Pipra. He, as already stated, was charged along with appellants Mohan, Domi and others u/s 342, Penal Code, for having wrongfully confined Mt. Sundari from 28th March to 31st March 1944 at village Pipra and at village Besar.

It will be noticed that Roudi has been charged for seven offences, five of which relate to the occurrence at Pipra on 28th March 1944. The sixth offence of wrongful confinement and the seventh offence of using criminal force to Mt. Sundaii relate to what took place at Pipra, but it is not stated clearly in the charge as to whether the accused Roudi has to meet the allegation of wrongful confinement and using criminal force at his own house or at the house of Adhik in Pipra. These two latter charges also charged the accused Roudi as to what took place at village Besar. Mohan has been charged for five offences out of which four relate to the occurrence at village Pipra whereas the fifth relates to the wrongful confinement at village Pipra and at village Besar. Here again, it is not clearly stated in the charge as to whether the wrongful confinement at Pipra alleged against this accused is the wrongful confinement at the house of Roudi or at the house of Adhik or both. Domi has been charged with abetment of abduction at Pipra, for theft of ornaments at Pipra and also for wrongful confinement of Mt. Sundari at Pipra and at Besar. Lastly Adhik has been charged with abetment of abduction at Pipra and wrongful confinement of Mt. Sundari at Pipra and at Besar.

It is convenient to state here the allegations of the prosecution which are set out in the order of the committing Magistrate. Accused Roudi and Mohan are alleged to have trespassed into the house of Tetar and were also the members of an unlawful assembly, the common object of which was to abduct Mt. Sundari, and further that these two accused actually dragged Mt. Sundari to the house of Roudi and kept her detained there till the evening. The charges of house trespass, abduction, wrongful confinement and also causing hurt on the allegations have been properly framed against these two accused. So far as Roudi is concerned, he has also been properly charged on the allegation for the theft of ornaments. It is then stated that from Roudi''s house the woman was removed to the house of Adhik where Roudi tried to have sexual intercourse with her. The framing of the charge u/s 354, Penal Code against Roudi is thus correct. It is then stated that the accused Domi also joined these persons and asked her to accompany him to whatever place he may go, but on her refusal Domi ordered that her ornaments should be taken away. The ornaments were removed and then it is said that Adhik and Domi ordered to take her to village Besar. Thereafter Roudi accompanied by Tale, Harihar, Mandhata, Nebi, Kusum and Brihaspat took her to the house of Saukhi Gope at Besar. It will be noticed that it is not alleged that accused Domi wrongfully confined the woman at Pipra nor that he accompanied her to Besar. I, therefore, do not see how the charge u/s 342, Penal Code has been framed against Domi. It is not alleged against Adhik that he accompanied the woman to Besar. I, therefore, do not understand how the charge u/s 842 has been framed against him for wrongful confinement of the woman at village Besar.

The framing of the charge u/s 366/ 114, Penal Code both against Domi and Adhik may now be considered. It is conceded that Section 114, Penal Code has no application, but it is suggested on behalf of the Crown that the proper charge should be u/s 366/109, Penal Code, but even then on the allegation of the prosecution, I am unable to see any justification for framing a charge for abetment of the abduction at Pipra. Domi and Adhik were not present at the time of the abduction of Mt. Sundari from her house nor were they present to receive her at the house of Roudi. Mt. Sundari was detained at the house of Roudi throughout the day, and it was in the evening that she was removed to the house of Adhik, and it was at about midnight or just before that Domi is said to have come to the house of Adhik. It was argued on behalf of the Crown that the offence of abduction is a continuing one and, therefore, Domi and Adhik have been rightly charged for abetment of the abduction of Mt. Sundari u/s 366 read with Section 114 or 109, Penal Code in that they ordered Roudi and the other accused to remove the woman to Besar.

In the first place it is not set out in the charge that the abetment of abduction related to the abetment in the manner now indicated. Moreover, I am of opinion that it is a mistake to think that abduction is always a continuing offence. Sub-section (4) was added to Section 181, Criminal P.C. in 1898. Before that year it was held in the Allahabad High Court that the offence of kidnapping not being a continuing offence could be tried only by the Court within the local limits of which the minor was taken out and not by the Court within whose jurisdiction the minor was confined nor by the Court within whose jurisdiction the minor was conveyed. The Calcutta High Court appears also to be of the view that the offence of kidnapping is not a continuing offence but is completed as soon as the minor is taken out of the custody of the lawful guardian. In the present section the forum of trial will be decided with reference to the provisions of Sub-section (4). It may also be observed that the words kidnapping and abduction do not include the offence of wrongful confinement or keeping in confinement a kidnapped person: see Badlu Shah v. Emperor AIR 1924 All. 454 Reference may also be made to illustration (c) to Section 180, Criminal P.C., which provides that the charge of wrongfully concealing a person known to have been abducted may be enquired into or tried by the Court within whose jurisdiction the wrongful concealing or within the local limits of whose jurisdiction the kidnapping took place. It seems to me that the insertion of the provision in Sub-section (4) to Section 181 makes it clear that the Legislature has put kidnapping and abduction on the same footing leaving it unnecessary to decide whether the offence is a continuing one. So far as the person who abducted the woman, e.g., Roudi in this case, is concerned and who kept on removing the woman from one place to another, it may be stated with some justification that the offence is a continuing offence, and he may be properly charged in any of the places where the woman is kept detained against her will. But where some persons joined the original abductor later on, I am unable to agree that they can be joined in the same trial unless it can be alleged that the offences committed by all the persons were in the course of the same transaction.

But it is said that the case law supports the argument of the prosecution, and it is, therefore, desirable to examine the cases somewhat closely. So far as the Allahabad High Court is concerned, the decisions rest upon a stray observation by Sir George Knox in Mt. Ganga Dei v. Emperor AIR 1914 All. 17 In that case Mirai was tried along with Ganga Dei and convicted u/s 366, Penal Code. Ganga Dei was found to have removed the girl Dilasia from Cawnpore to Allahabad. It was argued on behalf of Mirai that his connection with Dilasia was confined to the day of her abduction and the following day; on the evening of that day Mirai was one of the two persons who took the girl to the house of Mahadeo and offered her as an immigration coolie. Mahadeo refused to take her as she was too young. It is in connection with the argument of Mirai that there was nothing from which conspiracy in abduction could be inferred that the learned Judge observed, p. 731: AIR 1914 ALL. 17

The offence of abduction is a continuing offence and the girl was being abducted not only when she was taken from the latrine at Cawnpore but also when she was being taken to Mahadeo''s house. Beyond that so far as Mirai is concerned we need not go. Had the mere act of abduction been an offence, I should have been prepared on the evidence to find Mirai guilty of conspiracy in that offence. But Chap. 14, Penal Code, makes abduction an offence when it is committed with certain intents. It is true that Section 366 is very wide. But it would be too far to say that the taking of the girl to the house of Mahadeo was the taking with a knowledge that it was likely that she would be forced or seduced to illicit intercourse.

The accused Mirai was acquitted. It will be observed that the remarks of Sir George Knox are completely obiter because he would have been prepared to hold that Mirai was guilty of a conspiracy in the offence of abduction, but nevertheless he acquitted Mirai because it could not be held as a necessary result or even a probable result that a person taking a girl to the house of an immigration recruiter does the act with such knowledge. This case does not support the proposition that abduction is a continuing offence otherwise Mirai would not have been acquitted.

AIR 1914 All. 17 was followed by the Judicial Commissioner in the Oudh Court in 1924 in Sunder Singh v. Emperor AIR 1927 Lah. 370 In that case the facts were that a number of persons other than Sundar Singh conspired together to induce by deceitful means a girl of eighteen to leave her home and accompany them to another place with the intention of making her over to Sundar Singh for the purpose of being married to his brother. The girl was brought to Lucknow where Sundar Singh arrived on receiving a pre-arranged communication from the accused. The girl was not made over to him there but they all started by train towards Bareilly and at the Sandila railway station Din Muhammad, his wife and son got out of the train and told Sundar Singh to take charge of the girl. But the girl being unwilling to accept the company of a stranger got out of the train and refused to re-enter it. Thereupon Sundar Singh caught hold of her hand and dragged her. Upon an alarm being raised the girl and Sundar Singh were taken to the police station at Balamau. The learned Judicial Commissioner thought that the case of Sundar Singh was of some difficulty and observed that he could not be convicted of abetment of the original offence of abduction but that "his was a separate offence of abduction when he tried to compel the girl by force to go along with him from the Sandila Railway Station." After observing thus, the learned Judge referred to the observation of Sir George Knox in AIR 1914 All. 17 and took the view that AIR 1923 Oudh 328

the abduction was not completed when the girl was removed from Gonda. Every fresh removal of hers constituted an offence of abduction. The girl was unwilling to accompany Sundar Singh and he was compelling her by force to do so; it is clear that he abducted the woman.

With respect, I do not understand the observation of the learned Judge that the abduction was not completed when the girl was removed from Gonda. But I agree with his observation that there were fresh offences of abduction-one originally committed by a, number of accused when the girl was induced to leave her home in Gonda, and the other when Sundar Singh tried to compel her by force to accompany him at Sandila Railway Station.

The next case of the Allahabad High Court is a Division Bench case in Emperor v. Nanhua Dhimar AIR 1931 All. 55 In that case it was observed at p. 145: AIR 1931 All. 55

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 AIR 1914 All. 17 which has been followed in AIR 1925 328 (Oudh) (both these cases have been noticed by me above.) It has been held in these cases that a girl is being abducted not only when she is first taken from any place but also when she is removed from one place to another.

In the case before the Division Bench, Mt. Ramkali aged about 12 was induced by Nanhua Ahyria and his wife to leave Moradabad where she was living with her parents with intent that she may be forced or seduced to illicit intercourse with any person. She was taken to Hapur where they were joined by two other persons and from there she was taken to Hafizabad where they were joined by another accused and from Hafizabad they all went to Rampur in the Punjab. At this place the girl was sold for Rs. 300. The accused were tried by the Sessions Judge of Moradabad. The learned Judges held that the two accused persons who originally came to Moradabad to induce Mt. Ramkali to leave Moradabad in their company were rightly tried by the Sessions Judge of Moradabad. With regard to the other three accused the learned Judges held that it is true that they joined the first two accused at Hapur and at Hafizabad, but they must be held equally guilty with the first two accused because the inducement which had been given by the first two accused at Moradabad did not cease on reaching Hapur but continued to exist and the same inducement continued at Hafizabad and at Rampur. They reached the same conclusion by relying upon illustration (a) to Section 180, Criminal P.C. as in that view the abetment took place either at Hapur, Hafizabad or Rampur and the charge of abetment against Nahua, 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. It is to be observed that the learned Judges were doubtful as to whether the accused could be convicted u/s 368, Penal Code as the Sessions Judge of Moradabad would have no jurisdiction to try the accused for wrongful concealment of a minor outside the local limits of his jurisdiction. Similarly the accused could not be tried u/s 372, Penal Code as the offence was committed in Rampur. This case, therefore, appears to be correctly decided on the facts found but is no authority for the proposition that the offence of, abduction is a continuing one. No reasons are given beyond stating that AIR 1914 All. 17 and AIR 1925 328 (Oudh) hold that the offence of abduction is, a continuing one.

In Calcutta only two cases need be mentioned. Kushai Malic Vs. Emperor, . In that case four persons abducted a married woman and kept her at various places and then took her about 10 days later in a boat to a ghat near the house of a prostitute who was requested to make the abducted woman a prostitute. One of the original abductors took the woman in the boat to another place where they were met by another man who took the two women to his house, in which the abducted woman was kept for two days after which she was removed to the house of another prostitute and rescued. It was argued on behalf of the accused that the trial was vitiated by misjoinder of charges and joint trial of offences and of offenders which are not sanctioned by law Kushai Malic Vs. Emperor,

inasmuch as the offences committed by the four appellants were complete on 25th June, long before accused 5 Mokhoda alias Kuti Peshakar, came on the scene, the series of acts on 25th June and on 7th July 1922 were not so connected together as to form the same transaction, nor were they committed in the same transaction within the meaning of Sections 235 and 239, Criminal P.C.

The learned Judges then considered the meaning of the expression ''same transaction'' and pointed out that in some cases it was held that if a series of acts are so connected together by proximity of time, community of criminal intention and continuity of action and purpose or from the relation of cause and effect, as to constitute, in the opinion of the Court, one transaction, then the accused may be charged with and tried at one trial for every offence committed in such series of acts, whereas in other cases it has been held that the word ''transaction'' suggests not necessarily proximity in time so much as continuity of action and purpose and concluded: Kushai Malic Vs. Emperor,

In all these eases, however, the foundation for the procedure is the association of two or more persons concurring from start to finish to attain the same end.

It was, therefore argued that although the four appellants could well be tried together for the offence committed on 25th June, a joint trial of the four appellants along with accused 5 in respect of offences committed on 25th June and 7th July was bad as accused''s did not at all appear in the case till 7-7-1922. It is then that the observations are made at p. 1009 which are relevant to the present enquiry: Kushai Malic Vs. Emperor,

On the facts of this particular case there can be no doubt that, inasmuch as the offence of abduction is a continuing offence, the four appellants and accused 5 could have been tried together in respect of offences committed on 7th July 1922, and on all subsequent dates thereafter. The four appellants wanted that Najibunnessa should be made a prostitute; and accused 5 also wanted that Najibunnessa should be made a prostitute; therefore they were rightly tried together for offences committed on 7th July 1922, and on all subsequent dates thereafter (underlined by me.)" [Here italicised Ed ]

With respect, I agree with this opinion. Prom 7th July 1922 onwards, all the accused were carrying out one and the same transaction. But the learned Judges went to observe that by illustration (b) to Section 239, Criminal P.C., a joint trial is permitted even with regard to the offence committed on 25th June 1922. That illustration, however, in my opinion does not support the conclusion. The illustration may be quoted in full:

A and B are accused of robbery, in the course of which A commits a murder with which B has nothing to do. A and B may be tried together on a charge, charging both of them with the robbery, and A alone with the murder.

In this case it will be noticed that A and B were present both from start to finish at the occurrence of robbery, and it is in the course thereof that A commits the murder, an isolated act of his own. In such cases by the terms of Section 239 as the offence of murder was committed in the same transaction, they could be tried together. It is to be observed that this illustration has now been omitted from the section by the Amending Act 18 [XVIII] of 1923.

The second Calcutta case which I propose to notice is the case in Kamala Prosad Bhattacharjee and Another Vs. Emperor, a case relied upon by the learned Advocate appearing for the Crown. This case was a case of kidnapping and it was contended that as the offence of kidnapping was complete once the girl was taken away and there was no suggestion that the accused Kamla Prasad had anything to do with that offence, his joint trial with the other accused was illegal. Bartley, J., overruled the contention observing: AIR 1924 cal. 815

As long as the offences charged were committed in the course of the same transaction, it is immaterial that one offence was complete before the other was committed and the only question is whether the incidents between the time the girl left her home and the time when the appellant Kaloo appeared on the scene can rightly be regarded as forming part of one transaction. In our view,it is very difficult to hold that they do not fall within this category. Here the facts are, as found by the jury, that the girl was kidnapped and taken away by appellant 1, Pagla, and that on the following morning while the girl was still with Pagla and his companion that companion fetched the appellant Kaloo and the three men proceeded to escort the girl to a neighbouring village. From there they took her to Dacca and the appellant Kaloo actually stayed there until both of them were arrested by the police. It seems to us that this can properly be regarded as one transaction and therefore the offences committed in the course of it can rightly be tried together.

The only observation I desire to make is that this decision proceeded upon the view that the facts of that case led the learned Judges to the conclusion that the offences were committed in the course of the same transaction.

The Lahore cases may now be considered. Bela Singh v. Emperor AIR 1916 Lah. 361 No reason is given in the judgment beyond stating that all the accused who joined after the woman had been abducted were rightly convicted. Tufail v. Emperor AIR 1927 Lah. 370 All that this case decides is that in order to establish an offence u/s 866 it is not necessary to show that after the first act of abduction of the girl there was another act of seduction of the girl to illicit intercourse where from the proximity of events the Court is satisfied that the effect of the inducement which was the cause of abduction continued till the time of illicit intercourse. Chiragh v. Emperor AIR 1936 Lah. 850 In that case Skemp J. has referred to a number of cases. After referring to Kesar Mal v. Emperor AIR 1932 Lah. 555 where it was held that the offence u/s 366A, Penal Code was completed when the young woman in question was induced to leave a passenger shed at a railway station and what happened afterwards did not constitute a fresh offence u/s 366, Penal Code, the learned Judge observed at p. 851: AIR 1936 Lah. 850.

No general rule was laid down but the case is at variance with the principle laid down in AIR 1931 All. 55 The learned Judge also referred to the case in Kamala Prosad Bhattacharjee and Another Vs. Emperor, and then referred to the two cases of the Lahore High Court which I have noticed. The case, however, was, in my opinion, correctly decided on the facts. As Chiragh was found to have induced the girl to go to his house and the other two accused took her to Lahore in accordance with this suggestion and therefore "no reasonable person can doubt that all three were in a conspiracy in order to make money out of this girl by getting her married.

It is only necessary to refer to the case in Gobinda Chandra v. Emperor AIR 1920 Pat. 230 where a Division Bench of this Court considered the meaning of the words ''in the same transaction'' or ''in the course of the same transaction'' as they appear in Section 239, Criminal P.C. In that case the first accused seized the woman with the intention of forcibly having sexual intercourse with her and was attacked by her husband, and the second and third accused thereupon appeared and assaulted the husband. All these accused were tried together and it was held that in the absence of proof that the three accused were acting for a common purpose in execution of a common design, a joint trial was illegal. On a review of (these authorities, I am of opinion that it cannot be held as a matter of law that the offence of abduction is a continuing one. The question will have to be decided on the facts of each case.

In the present case the learned Judge thought that as the offence was a continuing one, Adhik and Domi should be tried together for the offence of abetment of the abduction of Mt. Sundari. But the abetment set out in the charge is not borne out by the accusation as I have shown above from the commitment order. The prosecution must make up its mind whether on the facts to be alleged for a proper charge of abetment the abduction can be said to be a continuing one in this case. This will be considered if and when a further trial is launched. I have also shown above that a number of charges framed against some of the accused are not justified upon the allegations and should not have been framed. Further, the charges are embarrassing and the Public Prosecutor does not appear to have devoted any serious thought to consider carefully the allegations before he proceeded to frame so many charges against so many accused. I would hold that the accused have been prejudiced and embarrassed in their defence and without pronouncing any opinion on the merits, I must hold that the joint trial of the accused was illegal in the circumstances of this case. The convictions of the appellants are, therefore, set aside leaving it open to the prosecution to proceed against any or all or such of the accused jointly or severally as they may be advised upon properly framed charges. The appeal is allowed and the convictions and sentences of the appellants are set aside and they are directed to be set at liberty at once.

Beevor, J.

I agree and have nothing to add.