Sir Grimwood Mears, C.J and Sen, J.:— Nanhua Ahyria, Mst. Sukhao, Nanhua Dhimar, Bihu Chamar and Kesri Chamar were committed to the court of sessions of Moradabad by a Magistrate of the first class of the same district to take their trial on charges, in the alternative, under sections 366 and 366A of the Indian Penal Code.
Mst. Ram Kali is a maiden daughter of one Ganga Ram Ahyria. She is about twelve years old. She lived with her parents at Moradabad. Mst. Sukhao is the sister of Ganga Ram Ahyria, and is the wife of Nanhua Ahyria. Nanhua Ahyria and his wife Mst. Sukhao are residents of Hapur, which is within the jurisdiction of the Sessions Judge of Meerut.
On the 14th of August, 1929, Nanhua Ahyria and his wife came to Moradabad and induced Mst. Ram Kali to leave Moradabad in their company with intent that Mst. Ram Kali may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. They took her to Hapur where they were joined by Nanhua Dhimar and Bihu Chamar. Nanhua Ahyria, Mst. Sukhao, Nanhua Dhimar and Bihu Chamar took Mst. Ram Kali with them to Hafizabad, a village in the district of Gujranwala in the Punjab. Here they were joined by Kesri Chamar, who is a resident of Hapur. From Hafizabad all the five above-mentioned persons went to Rampur, which is another village in the Gujranwala district, and is fourteen miles from Hafizabad. Here they sold the girl to one Barkat Ram, a Rajput Jat of Rampur, for Rs. 300, representing to him that Mst. Ram Kali was a woman of the same caste as Barkat Ram. About six weeks later, the girl was recovered from the possession of Barkat Ram.
The learned Sessions Judge of Moradabad has tried Nanhua Ahyria and Mst. Sukhao and convicted them under section 366A of the Indian Penal Code. He has referred the cases of Nanhua Dhimar, Bihu Chamar and Kesri Chamar to this Court with the recommendation that the commitment of these persons be quashed, as no offence was committed by these persons within the jurisdiction of the court of sessions at Moradabad.
This reference came up before Mr. Justice Dalal. He fully considered the questions involved in the reference, and gave his opinion thereon. He, however, referred this matter to a Bench of two Judges. We are in substantial accord with the views of Mr. Justice Dalal.
It is to be remembered that the offence of kidnapping from lawful guardianship is not a continuing offence. As soon as the minor is actually removed out of the custody of his or her guardian, the offence is completed. The offence is not a continuing one as long as the minor is kept out of guardianship. But, unlike kidnapping, abduction is a continuing offence, and has been held to be a continuing offence in Ganga Dei v. King Emperor , which has been followed in Sundar Singh v. Emperor . It has been held in these cases that a girl is being abducted not only when she is first taken from any place but also when she is removed from one place to another.
There may be abduction without the removal of a person from lawful guardianship. As has been pointed out by Mr. Justice Dalal, there is a close resemblance in the texts of sections 362 and 366A. We are of opinion that some of the salient ingredients of the two offences are common and that we must hold that an offence under section 366A is a continuing offence.
Section 182 of the Code of Criminal Procedure inter alia provides that where an offence is a continuing one and continues to be committed in more local areas than one … it may be inquired into or tried by a court having jurisdiction over any of such local areas.
The learned Sessions Judge has found that Nanhua Ahyria and Mst. Sukhao had committed an offence under section 366A of the Indian Penal Code within his jurisdiction. The offence being a continuing one, the other persons who joined Nanhua Ahyria and Mst. Sukhao at Hapur and Hafizabad and participated in the sale of the girl to Barkat Ram, are equally guilty with them. Nanhua Ahyria and his wife had prevailed upon a minor girl to leave Moradabad and go with them to Hapur. On reaching Hapur, the inducement which had commenced at Moradabad did not cease but continued to exist. The same inducement continued at Hafizabad and Rampur. If Nanhua Dhimar, Bihu Chamar and Kesri Chamar were parties to the inducement and had prevailed upon the minor girl to go from one place to another with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person, all the ingredients necessary for the offence under section 366A are present in their case. We are, therefore, of opinion that, although the part played by these three persons was outside the jurisdiction of the Moradabad sessions court, the learned Sessions Judge of Moradabad had jurisdiction to try the case against these persons.
There is yet another aspect of the case, which may be considered. The three accused persons either intentionally aided or engaged with Nanbua Ahyria and his wife in the commission of an offence under section 366A. They are clearly guilty of abetment. Illustration (a) to section 180 of the Code of Criminal Procedure is instructive:— “A charge of abetment may be inquired into or tried either by the court within the local limits of whose jurisdiction the abetment was committed or by the court within the local limits of whose jurisdiction the offence abetted was committed.” The offence abetted was one under section 366A of the Indian Penal Code which was committed by Nanhua Ahyria and his wife within the jurisdiction of the Moradabad court. Assuming that the abetment took place either at Hapur, Hafizabad or Rampur, the charge of abetment against Nanhua Dhimar, Bihu Chamar and Kesri Chamar could be inquired into and tried by the Moradabad court within the local limits of whose jurisdiction the principal offence was committed. The learned Sessions Judge may well he justified, if he so choose, in charging these three persons in the alternative for an offence of abetment, that is to say, under section 366A coupled with section 109 of the Indian Penal Code.
In the absence of more detailed particulars it is difficult to say whether any charge could be brought against all or any of the three accused persons under section 368 of the Indian Penal Code. The venue for the trial of a case under section 368 of the Indian Penal Code is evidently the court within whose jurisdiction the kidnapped or abducted person has been wrongfully concealed or confined. If Mst. Ram Kali was wrongfully concealed or confined at Hapur, Hafizabad or Rampur, the court of session's at Moradabad would have no jurisdiction to try the accused under section 368 of the Indian Penal Code. The offence under section 372 of the Indian Penal Code is distinct from that under section 366A of the Indian Penal Code. All the five accused persons who were committed to the court of sessions could be tried for an offence under section 372 of the Indian Penal Code. This offence however was committed at Rampur and was beyond the jurisdiction of either the court of sessions or that of a Magistrate of the first class of the Moradabad district.
In view of what we have said above, the learned Sessions Judge of Moradabad has jurisdiction to try the case against, Nanhua Dhimar, Biha Chamar and Kesri Chamar under section 366A/109 or 366A of the Indian Penal Code and the trial, therefore, must proceed.