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1982 Supreme(MP) 216
High Court Of Madhya Pradesh
M.D. Bhatt, J.
Bondal
Versus
State of Madhya Pradesh
Decided On : Mar 22,1982
Headnote:(1) Criminal P.C., 1973-Ss. 325, 209, 228(1)(a)--case committed to the Session Court under various section of IPC-Sessions Court remmitted the case to the Magistrate-the Magistrate on taking evidence found that there is sufficient evidence against the accused for an offence triable by the Sessions Court--the Sessions Court found the accused guilty-the judgment of Sessions Court not vitiated by the previous order of remittal.
The accused persons were prosecuted for offences under sections 148, 366, 354, 342/341 of the IPC. The trial Magistrate on the basis of some evidence committed the case under section 366 and 376/511 IPC. The Sessions Judge remitted the case under section 228(1)(a), Cr. P.C., to the Magistrate for trial under sections 148, 341, 342 and 354 IPC. After recording evidence the Magistrate again committed the case to the Sessions Court for trial of the offence under section 366 IPC. The Sessions Judge convicted and sentenced the accused under S. 366 IPC. It was submitted that by the earlier, order of sending back the case to the Magistrate, the Session Court had impliedly discharged the accused persons of offence under section 366 IPC, and the Magistrate could not again commit the case to the Sessions Court, nor the Session Court sentence and convict the accused persons under section 366 IPC.
Held: The Magistrate's powers under section 323, Cr. P.C. are wide enough and not circumscribed to any extent, just because of the Sessions Courts' earlier remittal of the case under section 228(1)(a) Cr. P.C., On examining further evidence the Magistrate could again commit the case to the Sessions Court.
Additional material, having been considered by the Sessions Court, when the said Court actually framed the charge under section 366 IPC, the Sessions Court cannot obviously be said to have reviewed its earlier decision. The earlier decision was only on the material in the originally committed case.
There is no legal infirmity the in sentence and conviction by the Sessions Court. [Para 6]
(2) Criminal Practice-accused persons known to the prosecutrix-their names not mentioned in the FIR lodged by her-accused persons not mentioned by the witnesses in statements under section 161 Cr. P.C.,-the accused persons cannot be convicted and sentenced. [Para 7]
(3) Penal Code, 1860-S. 148-three persons out of five were falsely implicated -other two could not he said to have formed unlawful assembly with the three acquitted accused persons-no case made out under section 148 IPC. [Para 8]
(4) Penal Code, 1860-S. 366 - ingredian ts-no evidence of compelling the woman for forced marriage-forced sexual intercourse flat proved-offence not made out.
To bring the offence within the sweep of section 366 IPC, there should not only, be abducting of the woman but it should be with intent that she may be compelled or knowing it likely to be compelled to marry a person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it likely to be forced or seduced to illicit intercourse.
Where fact of compelling the woman for forced marriage or for committing sexual intercourse is not proved, the offence is not made out. [Para 9]
(5) Penal Code, 1860-S. 354-statement of prosecutrix not supported by any other witness produced-accused cannot be convicted for the offence.
(6) Criminal Practice-sentence-facts and circumstances attending the incident have to borne in mind. [Para 12]
( 1. ) THIS is the appeal of the six accused persons against their respective convictions and sentences. All the accused persons have been convicted and sentenced under Section 148 IPC. Then again some of them have been convicted and sentenced under Section 342 IPC and the rest - under Section 341 IPC. Conviction under Section 366, I. P. C. is only against Bondal, Bodram and Gimjarilal. The accused Bedram, has, however, been further convicted and sentenced for the offence under Section 324 (354?) I. P. C.
( 2. ) ACCORDING to the prosecution, in the early hours of the morning of 24th Nov. 1976, prosecutrix Mst. Shantibai aged about 25 years and wife of Banshilal Satnami, had gone out of the village to answer the call of nature. On the way, the appellants-accused Bondal, Bedram and Gunjarilal caught her. bodily lifted her and took her to the house of Bondal where she was wrongfully confined and was not allowed to move out. The appellant-accused Bedram attempted to outrage her modesty during her confinement in the house. She was, however, rescued on the same date by about the night time. Therefore, she lodged the report on the next day morning. After due investigation, the appellants-accused were put up for trial for commission of the offences punishable under Sees. 148, 366, 354. 342/341, IPC. All of them abjured the guilt in the trial Court and contended that they were implicated on false report due to enmity. The trial Court, on the strength of evidence on record, convicted and sentenced the respective accused persons for commission of various alleged offences. Hence now, their present appeal.
( 3. ) THE foremost point advanced by the appellants learned Counsel is that conviction of some of the accused persons under Section 366, IPC was bad in law : and as such, unsustainable. It is urged in this connection that the learned Sessions Judge, after the initial commitment of the case to him under Section 209 Cr. P. C. , had sent back the case to the Magistrate, for trying the accused persons, only for offences exclusively triable by the latter; and had, thus, discharged these accused persons of the offence under Section 366 IPC. The Magistrate, after taking some evidence, had again committed the case to the Court of Session, who, thereafter, had framed the charge under Section 366, IPC; and after due trial, had convicted some of the appellants-accused of the offence under Section 366 IPC. According to the appellants learned Counsel, the Magistrate, in the first place was not competent to re-commit the appellants-accused for trial of the offence under Section 366, IPC, inasmuch as, the learned Sessions Judge, by implication, had discharged these appellants-accused, of the said offence : and in the second place, the learned Sessions Judge, having already earlier discharged the accused persons of the offence under Section 366, IPC, was not competent to frame the charge under Section 366. IPC : and, thus, review his own earlier order. Then again, on merits, it is urged that there being two FIRs in the case, as disclosed from the prosecution evidence itself; and the first FIR of the date 24th Nov. , 1976 having been suppressed, no reliance could be placed on the latter FIR filed by the prosecutrix on the next day. It is further canvassed, before me that the appellants-accused Nos. 4, 5 and 6 were not liable for any conviction in the absence of any cogent evidence, inasmuch as, they are not found to be incriminated in the FIR and also in the earlier police statements of the material prosecution witnesses. Roznamcha Report (Ex. P-7) is urged to be of no probative value either for corroboration or for contradiction, inasmuch as, Banashilal who had lodged this report, had not been examined, at all, by the prosecution. As regards, the offence under Section 354. IPC, it has been argued that even from the prosecutrixs own evidence, no such offence was made out, at all.
( 4. ) I will, at first, take up the question of legality or otherw
