Miss Cian D''Souza vs State

R.K. Batta, J.—By impugned order dated 29-9-98, which is subject matter of challenge in this revision, charge was ordered to be framed against the petitioner and another accused Rajkumar Halwai under sections 363, 366, 465, 466, 468, 471, 120-B, read with 109 I.P.C. In this revision, the challenge is restricted only to the order of framing of charge u/s 366 I.P.C.

Learned Advocate Shri M.S. Joshi, appearing on behalf of the petitioner urged before me that in respect of a marriage which took place between the petitioner and one Majdoline Habib, (hereinafter, referred to as ''the said girl'') no charge could be ordered to be framed u/s 366 I.P.C. since both of them belong to same sex. Besides this, it was also urged by him, after placing reliance on S. Varadarajan Vs. State of Madras, ; Bansi Lal Vs. Deputy Custodian General and Another, ; and Gourish s/o. Shamba Haldankaa v. State of Goa, 1997 All.M.R. (Cri.) 629 that the said Majdoline Habib had accompanied the petitioner on her own and that there is no case of kidnapping and in the event, there is no kidnapping, charge u/s 366 I.P.C., which is an aggravated form, could not be ordered to be framed.

There is basic fallacy in the argument of learned Advocate for the petitioner, since, in this revision there is no challenge to the order framing charge u/s 363 I.P.C. Moreover, the rulings upon which the reliance has been placed by learned Advocate for the petitioner, have been rendered after the full-fledged trial, wherein all facts were available before the Court. Thirdly, in those cases, the prosecutrix was on the verge of attaining majority, that is to say, near 18 years of age. However, in the case under consideration, there is a dispute regarding the age of the said girl. As per the school records and the Baptism Certificate, the age of the said girl is 13 and half years; whereas, according to the medical examination it is stated to be 16 years with six months allowance on either side.

At the time of framing of the charge, the Court framing the charge has to sift evidence on record only for the limited purpose, that is to say, whether a prima facie case is made out against the accused and at that stage, the Court is not required to undertake an elaborate inquiry in sifting and weighing the material to arrive at the conclusion as to whether it would lead to conviction based on the said charge. It is now well settled that the charge can be ordered to be framed even on a very strong suspicion, founded upon materials placed before the Court.

The intent with which a woman is abducted or kidnapped is more or less a matter of interference, though there may be cases where the matter is capable of direct proof. The intention to abduct is to be gathered from conduct. Affirmative proof may not always be possible or available and it is to be inferred from the facts and circumstances of each case.

Taking into consideration totality of facts, including the fact that the petitioner used to wear clothes of boys, personated, posed and acted as a boy, had sworn affidavit that he was a male, got the marriage performed on the strength of the said affidavit that he is male, got the marriage registered as a male and the fact that the marriage had taken place, the learned Addl. Sessions Judge has ordered framing of charge against the petitioner u/s 366 I.P.C. The marriage had taken place, though the validity of the marriage may be in dispute. In fact, for applicability of section 366, it is not necessary that the actual marriage should take place, but it may be sufficient if a person is kidnapped with the intention or knowledge that she is likely to be compelled to many another person against her will. The trial Court relied upon a judgment of the Madras High Court in Rathinam and Others Vs. State, S.I. of Police, Tiruvadanai, , wherein it is stated that the offence u/s 366 Penal Code is complete, whether the form of marriage gone through is valid or not, since the validity of the marriage has no relation to the commission of offence. Almost similar view was taken in Taher Khan and others v. Emperor, AIR 1918 Cal 136 and in Sant Ram v. Emperor, AIR 1929 Lah 713, wherein it has been laid down that the word "marry" in section 366 I.P.C. has the same meaning as it has in section 494 of the Code i.e., going through a form of marriage, whether the marriage should prove in fact legal and valid or illegal and invalid.

In the light of the above, I do not find any merit in this revision and the revision is, hereby, dismissed. It goes without saying that the learned Addl. Sessions Judge shall independently decide the issue regarding challenge to the applicability of section 366 I.P.C., without being in any manner influenced by the observations made in this order and, in accordance with the law. Stay of the proceedings granted on 18-6-1999 is hereby vacated.

Application dismissed.