Emperor v. Ayubkhan Mirsultan And Another Accused.

1. Mr. Joseph's submission here is that if a girl, being over fourteen and under sixteen and in lawful custody, consents to an act of illicit intercourse with a man and is persuaded to elope with that man for that purpose no offence under S. 366, Penal Code, 1860, is committed, but it may be an offence under S. 363. This Court has already held in 59 Bom. 6521 that a previous act of illicit intercourse between the kidnapper and the girl does not prevent an offence under S. 366 being committed. I respectfully agree with the dissent expressed in that judgment from 33 Cr. L.J 6692. The point does not seem to be exactly covered by authorities, but I am prepared to hold that even on Mr. Joseph's supposition an offence under S. 366 is possible.

2. The girl's consent might always be revoked, and if it were revoked force or a further seduction would be essential before an act of illicit intercourse could take place; and even if it were not revoked, it is difficult to see how the act of illicit intercourse could take place without at least some overture, however slight, being made by the male person, which overture, however slight, could properly be called a “seduction” to “illicit intercourse.” (The trial then proceeded and his Lordship accepting the verdict of the jury that the accused were not guilty acquitted the accused.)

3. Accused acquitted.