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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.

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 prosecutrix's own evidence, no such offence was made out, at all.

6. The law is also settled that if the Magistrate determines that the offence is exclusively triable by the Court of Session and if it is found by the Court of Session to be wrong, the latter Court may discharge the accused under Section 227 of the Code or remit it to the Chief Judicial Magistrate under Section 228(1)(a) ibid (See Sanjay v. Union of India 1978 Cri LJ 642 (SC) (supra) and Kalimuddin v. State 1977 Cri LJ NOC 261 (Cal). It would thus be seen that the order dated 15-3-77 of the learned Sessions Judge, remitting the case to the CJM for trial under Sections 148. 341. 342 and 354. IPC, had the effect of discharging the appellants-accused of the offences under Sections 330 and 376/511, IPC, for which, they had been initially committed by the committing Magistrate for trial by the Sessions Court. The question is whether, after such remitting of the case to the Magistrate, the latlter could, again, commit the case to the Court Of Session. He would not have been competent to do so, if he had simply recommitted the case to the Court of Session after considering the very police report and the documents mentioned is Section 207 of the Code, which he had examined earlier, at the time of initial commitment. But, the situation in the instant case was obviously quite different, The learned Magistrate, after the remission of the case for trial for the particular offence exclusively triable by him, had started the trial, in obedience of the Sessions Courts order dated 15-3-77. He had proceeded to record the plea of the appellants-accused to the charges as framed by the Sessions Court, and had, thereafter, proceeded to record the evidence of the prosecution witnesses in the trial, it was in the course of trial and after the recording of the evidence of the principal witness viz. the prosecutrix PW 1 Mst. Shantibai that the trial Magistrate has, again, thought it fit to commit the case to the Court of Session for trial of the offence under Section 366, IPC. It was after consideration of the evidence of PW 1 Mst. Shantibai (Ex. D-1) that it had appeared to the Magistrate that the case was one which could be tried by the Court of Session, and it was for this reason that he had acted in exercise of his powers under Section 323 of the Code, to commit the case to the Court of Session, over again, in accordance with Section 209 ibid. The learned Magistrate was fully competent to do so, by invoking the further enabling provisions of Section 323 ibid. It was not on the old material that be had recommitted the case, but it was on the basis of further material i. e. the actual evidence (oral testimony) of the prosecutrix Mst. Shantibai, as recorded by him in the trial, that he had come to hold the opinion that the case was the one which was to be tried by the Court of Session for the offence under Section 366 IPC. The Magistrate's powers under Section 323 of the Code are. thus, found to be wide enough and not circumscribed to any extent, just because of the Sessions Court's earlier remittal of the case under Section 228(1)(a) ibid. It is wrong to contend that after recommitment by the trial Magistrate, the learned Sessions Judge, by framing the charge afresh, under Section 366, IPC, had reviewed his earlier order whereby he had impliedly discharged the appellants-accused of the offence under Section 366, IPC. To use the word "review'' in such a situation, apparently, is a misnomer. It was not the same old material which the learned Sessions Judge had considered at the time of the framing of the charge, i. e. at the time when he had actually framed the charge under Section 366 IPC. On the earlier occasion when he had remitted the case under under Section 228(1)(a) of the Code, he had simply considered the police report and the documents under S 207 ibid : whereas, at the later stage, when the Magistrate, in exercise of his powers under Section 323 of the Code, had recommitted the case in accordance with Section 209 ibid, the learned Sessions Judge had. again, to consider and to take into account the additional material viz. part of the actual evidence of Mst. Shantibai, as recorded by the trial Magistrate during the trial. Additional material, having thus 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. Thus, there is no substance in the argument of the appellants' learned Counsel that the learned Sessions Judge was not competent to try the case "or commission of the offence under Section 336, IPC and as such, the Sessions trial consequently is found to be in order, and conviction of the appellants-accused under Section 366, IPC cannot be vitiated on such legal plea, as raised.

9. Now, taking up the case against these three appellants-accused, Bondal, Bedram and Gunjarilal under Section 366, IPC, it may, well, be borne in mind that, 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. There is no allegation regarding compelling Shantibai for any marriage, It is the second part of Section 366 Penal Code which is attracted, for consideration. It is now to be seen whether abduction was made in order that Mst. Shantibai may be forced to illicit intercourse by Bedram or any one or that she had been abducted knowing it to be likely that she will be so forced. Now, the scrutiny of the oral testimony of the prosecutrix PW 1 Mst. Shantibai shows that she had been detained in the house of Bondal throughout the whole day. This house had not remained lonely. On the contrary, all the women-folk of Bondal's family were also there in the house, throughout the whole day, she has stated in her evidence that the two kotwars Go-hani and Gyandas, who had actually rescued her from this house, were duly apprised by her regarding the incident of attempted sexual intercourse by the appellant-accused Bedram. If this were a fact, these Kotwars would have naturally supported her version. Gyandas Kotwar has entered the witness-box as PW 10, and he has clearly contradicted the version of PW 1. Mst. Shantibai that Shantibai had not told him anything whatsoever as to what had happened to her, during the whole period of her detention in the house of Bondal. It is, thus, obvious that Mst. Shantibai is just telling lies in the matter of the accused Bedram's any attempt to commit sexual intercourse with her, during the time of her detention inside Bondal's house. Thus, the offence under Section 366, IPC is not made out against the appellant-accused Bedram and so also against the other two appellants-accused Bondal and Gunjarilal. They, hence, deserve to be acquitted of the said offence.