Emperor vs Bhagchand Jasraj Marwadi

John Beaumont, Kt., C.J.—This is an appeal by accused No. 1 against his conviction by the Additional Sessions Judge of Poona s ting with a jury u/s 373, Indian Penal Code. Accused No. 1, along with Bapu accused No. 2, was charged in substance with obtaining possession of a girl under eighteen years of age with intent that she should be used for the purpose of illicit intercourse.

Two questions arise for consideration in this case upon the construction of Section 373. First, what is possession, and, secondly, what amounts to obtaining possession. The learned Sessions Judge in his charge told the jury that it is not necessary in order to constitute the offence that possession of the minor girl should be obtained from a third person; in dealing with what amounts to possession the learned Sessions Judge did not in terms explain to the jury the meaning of the word "possession" in the section, but he drew their attention to the prosecution evidence, which showed that the girl had been in the complete control of the accused for a period of about a week, and he said that if the jury accepted that evidence they could convict the accused of having obtained possession of the girl.

Now, it is argued, in the first place, that the learned Sessions Judge was wrong in saying that possession need not be obtained from a third party. It is said that Sections 372 and 373 must be read together, and that so read there is a limit upon the expression "obtaining possession" in the latter section. Section 372 imposes a penalty on anyone who sells, lets to hire, or otherwise disposes of any minor under the age of eighteen, whilst Section 373 imposes a penalty on anyone who buys, hires, or otherwise obtains possession of any minor under the age of eighteen. It is argued, therefore, that the obtaining of possession dealt with in Section 373 is by means of the disposal dealt with in Section 372, and, therefore, involves that the possession must be obtained through the disposal made by a third party. That view prevailed with the full bench of the Madras High Court in Dowlath Bee y. Shaik Ali (1870) 5 M.H.C.R. 473 In that case the offence consisted in a single act of sexual intercourse with the minor girl. The minor girl had been taken by the accused to an empty house and sexual intercourse had taken place in that house on one occasion, and the Court held that the act of the accused did not amount to obtaining possession of the minor. To this decision no exception need be taken, but Chief Justice Scotland and Mr. Justice Holloway expressed the view that to bring a case within Section 373, possession must be obtained from a third party, I am not prepared to accept that view. No doubt in construing Section 373 we must have regard to the preceding section, but that does not justify a departure from the plain words of Section 373. I can see no reason why a person who steals a minor girl under eighteen years of age with the requisite intention should not be held to have obtained possession of such minor within Section 373. That view has been taken already by this Court in the case of Emperor v. Shamsundarbai ILR (1920) Bom. 529 : 22 Bom. L.R. 1234 I think, therefore, that the learned Sessions Judge was right in telling the jury that it is not necessary that possession should be obtained from a third party.

Upon the question as to what amounts to possession within Section 373, I agree with the view taken by the full bench of the Madras High Court in the case referred to, concurred in by this Court in Emperor v. Shamsundarbai, that something more is required than such possession as is obtained for the purpose of a single act of sexual intercourse. No doubt it is often said that a man enjoying sexual intercourse with a woman possesses her, but I think that possession within Section 373 means something more than that. It denotes definite control over the person of whom possession is obtained. Mr. Justice Innes in Dowlath Bee v. Shaik Ali took the view that possession in Section 373 indicates possession with a power of disposal, and I think that that is generally a fair test, though it may not be an exhaustive one. We were referred to the ruling of Mr. Justice Madgavkar in Emperor v. Vithabai Sukha ILR (1928) Bom. 403 : 30 Bom. L.R. 613 wherein he held that what amounts to possession within Section 373 is a question of fact for the jury. It is no doubt a question of fact, but, in my opinion, a Judge should give the jury some guidance as to what constitutes possession in the sense indicated above. In the present case I think that the learned Sessions Judge in drawing the attention of the jury to the evidence, which undoubtedly showed that the girl had been in the complete control of the accused for a week, and in telling the jury that if they believed that evidence there was sufficient possession within the section, discharged his duty and that there is no ground for saying that the learned Sessions Judge misdirected the jury.

The appeal is dismissed.