ORDER

Bajpai, J. - This is an application by Sarnam Singh, Kishen Lal and Ram Phool alias Man Phool who were tried by a Magistrate of the first class u/s 368, Penal Code, and sentenced to one year's rigorous imprisonment and Rs. 100 fine. Their conviction and sentence were affirmed in appeal by the learned Sessions Judge.

2. In revision it has been argued before me that the learned Magistrate had no jurisdiction to try this case. It is said that u/s 368, Penal Code, the accused who wrongfully conceals or keeps in confinement a kidnapped or abducted girl shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge or for the same purpose as with that or for which he conceals or detains such person in confinement. The argument is that it is possible that according to circumstances an offence u/s 368, Penal Code, might be punishable in the same manner as an offence u/s 363, Penal Code, or as an offence u/s 366, Penal Code. An offence u/s 363, Penal Code, is triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class, but an offence u/s 366, Penal Code is triable exclusively by a Court of Session.

3. In the present case the prosecution case is that the girl in question was wrongfully concealed for the purpose of forcing her to illicit intercourse and therefore the present accused would be liable to punishment in the same manner as an accused u/s 366, Penal Code. The present offence u/s 368, Penal Code, according to the contention of the learned advocate for the applicants, was triable exclusively by the Court of Session, inasmuch as an offence u/s 366, Penal Code, is exclusively triable by a Court of Session.

4. I am Unhesitatingly of the opinion that the contention of the applicant, though plausible, has no substance. Section 368, Penal Code, according, to the Schedule is triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class and not exclusively by a Court of Session. Learned Counsel however argues that three classes of Courts are given in the Schedule and the meaning of the legislature is that a particular offence will be triable by a particular Court according to the knowledge or the intention of the accused. The words used in the section however are "shall be punished in the same manner" and not "shall be tried and punished in the same manner." Punishment begins after the trial is over and docs not commence with the initiation of the trial. It was then said that if a particular offence u/s 368, Penal Code, can be punished, by reason of his intention, knowledge or purpose, to imprisonment of either description for ten years and fine then he should be tried exclusively by a Court of Session. That, it was said, was the policy of the legislature. Here again, I find that the factor which determines the Court by which an offence is to be tried is not the amount of punishment to which the offender may be liable but the seriousness of the offence itself. For instance, several offences where the punishment provided is up to seven years are triable by a Court of Session, Presidency Magistrate or Magistrate of the First Class (Section 325, Penal Code, may be mentioned) and as against this, u/s 218, Penal Code, the punishment is only three years and yet the offence is triable by a Court of Session exclusively.

5. I am therefore of the opinion that neither on the wording of Section 366, Penal Code, nor on the policy of the legislature can it be argued that an offence u/s 368, Penal Code, should be tried by a Court of Session when the girl was wrongfully confined or concealed for the purpose of forcing her to illicit intercourse. It might be mentioned here that in connection with Section 109, Penal Code, it has been distinctly stated in the Schedule that the offence will be tried by the Court by which the offence abetted is triable and there was nothing to prevent the legislature from using the same phraseology in the Schedule whe