Rathinam and Others vs State, S.I. of Police, Tiruvadanai

(1) The petition has been filed on the ground that the complaint as given in the F. I. R. and the materials as gathered by the police in the course of

the investigation do not disclose an offence u/s 366 I.P.C. but, if established may amount only to an offence under S. 363 I.P.C. The argument is

that the facts, if provide, would amount only to an offence u/s 363 I.P.C. which is tribal by a court of Session, Presidency Magistrate of Magistrate

of the First Class, and that the proceeding now before the Sub Magistrate, Tiruvadanai, for committal of the accused to take their trial before the

court of Session for an offence u/s 366 I.P.C. is misconceived. According to learned counsel, it is not a case which is exclusively tribal by a Court

of Session but it is one which is tribal by a First Class Magistrate as well and therefore the Sub Magistrate ought not to hear the proceeding, and

the proceeding should be transferred to a First Class Magistrate having jurisdiction.

(2) I see no substance in this argument, and I may also say that the argument advanced by learned counsel for the petitioner is not intelligible. As I

understand the argument it is, that a person, sought to be prosecuted for an offence u/s 366 I.P.C. namely kidnapping or abducting a woman, with

a view to compel her to marry against her wishes or will, must have kidnapped or abducted her for a valid marriage. The argument in this case is

that a minor girl has been kidnapped, and under the Hindu law a valid marriage cannot take place without the consent of the mother which is

lacking in this case, and therefore even if the accused had not been intercepted in the completion of the wrong and even if a form of marriage has

been gone through, it would not result in a valid marriage, and therefore no offence is committed u/s 366 I.P.C.

As I said, I see no substance in this contention. There is no warrant for this interpretation of S. 366 I.P.C. All that the section requires is that the

minor girl or woman should be kidnapped or abducted, as the case may be, for the purpose of being compelled to ridge against her will, and

whether the marriage would be valid or not has nothing to do with the commission of the offence. A reference to the statement of the law and the

cases referred to in Ratanlal''s law of Crimes, 18th Edn. page 889 is sufficient to show that there is no substance in the contention. Learned counsel

for the petitioners drew my attention to a Bench decision of the Calcutta High Court Taher Khan v. Emperor, ILR 45 Cal 641: AIR 1918 Cal.

136, in support of his contention. Far from supporting the contention of learned counsel, it is dead against him.

This identical argument was advanced before the Bench, and the Bench rejected it, taking the view that the offence was complete whether the

marriage which was gone through was legal and valid or illegal and invalid. The facts set out in the order of the court below show that if the main

facts and the complaint put forward in the F. I. R. are proved, it would clearly amount to an offence u/s 366 I.P.C. in which case it is an offence

which is exclusively triable by a court of Session. I have no hesitation in holding that the proceeding before the Sub Magistrate is quite competent.

(3) The revision case is dismissed.

(4) Petition dismissed.