Order.- This revision by the State of Karnataka is directed against the order of discharge recorded by the Metropolitan Magistrate, VI Court, Bangalore City for the offences under sections 363 and 376 of the Indian Penal Code.

2. It appears that a police report was instituted by one S.T. Ramachandra Rao on 18th November, 1976. It is stated in the complaint that Shashikala, daughter of S. T. Ramachandra Rao, “aged about 18 years” left the house on 18th November, 1976 at about 6-30 A.M. to purchase some food articles but did not return to her home. Thereafter, the brother of the girl Shashikala went to fetch her and found her in the company of the accused in his room, and on a later date Shashikala was recovered along with the accused. After receiving the complaint the police started investigation, based on the first information report, examined some witnesses, and ultimately submitted the charge-sheet for the offences under sections 363 and 376, Indian Penal Code, against the accused Shakthi Velu. The learned Magistrate obviously took cognizance of the offence under section 190 of the Code of Criminal Procedure. The offence was brought to his notice upon a police report on the facts alleged in the first information report as well as on the facts discovered from the statements of the witnesses examined during investigation. After the Magistrate took cognizance of the offence under section 190, he proceeded under section 209 and under that section he had to find whether the offence was triable exclusively by the Court of Sessions. The learned Magistrate thereafter proceeded to examine the statements of the witnesses and made his own assessment of that evidence. He drew up certain inferences and in his opinion the girl Shashikala was more than 18 years of age. On that basis he held that the offence under section 376, Indian Penal Code could not be made out. Although the learned Magistrate has not categorically stated in that manner yet he seems to have presumed that the girl mast have con-sen tend to the sexual intercourse. However, in, his order the learned Magistrate merely remarks that the age of the girl being 18 years or more, the offence could not be made out. That was obviously a wrong finding. The girl of that age if subjected to sexual intercourse without her consent or by force or compulsion, the person responsible for that, would nonetheless be liable for punishment under section 376, Indian Penal Code. For the offence under section 363, Indian Penal Code, the learned Magistrate upon reading of the evidence found that the age of the girl was more than 18 years and as such there could be no offence of kidnapping. On the same question he further scrutinised the prosecution witnesses and held that it was not proved that the accused enticed or kidnapped Shashikala meaning thereby that she herself went to reside with the accused. Having arrived to that finding, the learned Magistrate discharged the accused of the two charges. It is abundantly clear that the offence under section 376 was exclusively triable by the Court of Sessions and the learned High Court Government Pleader in support of the revision contends that in any case the learned Magistrate could not have discharged the accused for the said offence.

3. Smt. Karpagam Kamath, the learned Counsel appearing for the accused, referred to section 209 and her main contention was that the expression “it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions” occurring in that section necessarily means that the learned Magistrate had to consider the material on the record. In other words, she contended that the learned Magistrate was justified in scrutinising the statements of the witnesses produced during investigation. He was at liberty to derive his own inference upon that evidence. He found, upon considering all such evidence, that the offence formulate could not be placed under section 375 or 376, Indian Penal Code. He could very well a

Click Here to Read the rest of this document