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Andhra Pradesh High Court
Judges : ANANTA NARAYANA AYYAR
B.C.Chenna Reddy - Appellant
Versus
State - Respondent
Decided On : 11-01-61
CRIMINAL PROCEDURE CODE - SECTION 561-A - QUASHING OF COMMITTAL ORDER - CHARGE UNDER SECTION 367 I. P. C. ALONG WITH SECTIONS 325 AND 326 I. P. C. - JUSTIFIED - COMMITTAL ORDER CANNOT BE QUASHED.
Fact of the Case:
The petitioners were charged with offences under Sections 147, 148, 324, 326, 367, and 149 I. P. C. by the Sub-Inspector of Police, Simhadripuram. The Judicial Second Class Magistrate, Pulivendia, took cognizance of the case as P. R. C. No. 5 of 1961, framed charges under Sections 147, 324, 325, 326, read with 149, 367 against some of the accused and under Section 148, 324, 325, 326, read with 149 and 367 against the remaining accused, and committed them to stand trial in the Court of Sessions, Cuddapah Division. Aggrieved by this order, the accused filed a petition under Section 561-A Cr. P. C. to quash the order of committal.
Finding of the Court:
The court held that the charge under Section 367 I. P. C. can be framed along with Sections 325 and 326 I. P. C. and that the offence under Section 367 I. P. C. is triable only by a Court of Session and cannot be tried by a Magistrate. The court further held that an offence like Section 326 I. P. C. which is triable by a First Class Magistrate, can be tried by Sessions Court if committed to it by a competent Magistrate. Consequently, the committal by the learned Magistrate was justified and could not be quashed.
Issues: Whether the charge under Section 367 I. P. C. can be framed along with Sections 325 and 326 I. P. C.
Ratio Decidendi: The court relied on the following principles in reaching its decision: * An auxiliary offence can be charged along with the main offence itself. * The offence under Section 367 I. P. C. is an auxiliary offence in relation to the offence under Sections 325 and 326 I. P. C. * The offence under Section 367 I. P. C. is triable only by a Court of Session and cannot be tried by a Magistrate. * An offence like Section 326 I. P. C. which is triable by a First Class Magistrate, can be tried by Sessions Court if committed to it by a competent Magistrate.
Final Decision: The court dismissed the petition and upheld the order of committal passed by the Magistrate.
( 1 ) THE Sub-Inspector of Police, Simhadripuram filed a charge sheet against twelve accused for offences punishable under Ss. 147, 148, 324, 326,367 and 149 I. P. C. in the Court of the Judicial Second Class Magistrate, Pulivendia. The latter took it on the fileas P. R. C. No. 5 of 1961, framed charges under Ss. 147, 324,325,326, read with 149 367 against A. 1, A. 3, A. 4,a. 6, A. 9, A. 10, and A. 11and under S. 148, 324, 325, 326,read with 149 and 367 against A-2, A-5, A-8 and A-12 and committed them to take their trial in the Court of Sessions Cuddapah Division. Thereupon, the twelve accused felt aggrieved with that order and filed this petition under S. 561-A Cr. P. C. to quash the order of committal.
( 2 ) IN the present case, the charge under S. 367 I. P. C. against the accused is that they dragged the complainant from one place to another so that he may be subjected to grievous hurt. It is also the case of the prosecution that the accused caused grievous hurt which is the subject of charges under Ss. 325 and 326 I. P. C. It is beyond doubt or dispute that, of all charge which is triable exclusively by the Court of Session is the charge under S. 367 I. P. C. and that all the other charges including the charges under Ss. 325 and 326 J. P. C. are triable by a Frist Class Magistrate.
( 3 ) THE contention of Sri A Bhujangarao for the petitioners is that in view of the fact that the accused are alleged to have committed offences under Ss. 325 and 326 I. P. C. none of them can be charged with an offence under S. 367 I. P. C. The reason he urges is that S. 367 I. P. C. is only an offence of being kidnapped or abducted for the purpose of causing grievous hurt so far as this case is concerned and that grievous hurt has actually been caused according to the prosecution. Section 367 I. P. C. runs thus:"whoever Kidnaps or abducts any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected to grievous hurt, or slavery or to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". For purposes of convenience, I shall hereafter refer to in this judgment the act of dragging concerned in S. 367 I. P. C. as an auxiliary act and offence under Sec. 367, I. P. C. as an auxiliary offence in relation to the act and offence of causing grievous hurt under Ss. 325 and 326 I. P. C. Which I shall refer to as the main act and the main offence. I am also referring to an offence like Sec. 367, I. P. C. (Which is triable only by a Court of Sessions as the lowest Court which can try the offence) as an offence of higher level in relations to the offence of S. 326 I. P. C. (regarding which the lowest court that can try is a Magistrate of the Frist Class a Court lower in level than a court of Session) as an offence of lower level.
( 4 ) IN Upendranath v. Emperor, AIR 1940 Cal 561 the Calcutta High Court observed as follows: (at p. 564)"when the case of the prosecution is that the person abducted has been murdered by the abductor, there can be no scope for a charge under this Section (S. 364, I. P. C. ). The abductor should be charged with murder pure and simple". But the learned Judges also observed as follows:"we have noticed however in such cases, where the evidence to establish the charge of murder is weak or inconclusive the prosecution is prone to adopt this device of adding or preferring a chargeunder S. 364, "penal Code in the hope that a jury which may hesitate to find the accused guilty of murder on such slender evidence may be induced to find against him in the lesser charge". In that case, the offence under Sec. 364, I. P. C. which is punishable with imprisonment for life or ten years was treated as lesser charge in relation to the offence under Sec. 302, I. P. C. Which wa
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