Meredith, J.The appellants, Banamali Tripathy and Dhundi Nath have been convicted and setenced by the learned Assistant Sessions Judge of Puri under a number of sections of the Penal Code. Both have been convicted u/s 366 of the Code for the abduction of a married girl named Nishamani, and have been sentenced to undergo seven years rigorous imprisonment. Both also have been convicted u/s 420 of the Code, and sentenced to undergo rigorous imprisonment for five years. Both also have been convicted u/s 494 read with Section 109 of the Code for abetting the offence of bigamy said to have been committed by the same girl, and have been sentenced to five years rigorous imprisonment. Dhundi Nath alone has also been separately convicted of an offence u/s 366 of the Code for kidnapping the girl in question, and has been separately sentenced to seven years rigorous imprisonment. In the case of each appellant all the sentences have been made concurrent.

2. Put briefly, the prosecution case is that the girl Nishamani, who was aged about 14, had been married seven years previously to one Dinabandhu Hota (P.W. 12). As she had not attained puberty she did not go to live with her husband, but remained in the house of her mother, who was a widow. The first appellant, Banamali Tripathy, had been living in the house for a year as prospective bridegroom of Nishamanis younger sister. The other appellant, Dhundi Nath, was a close friend of the family and a frequent visitor to the house. On 24th March 1942, the day before the Ashokastami festival, at about 10 A.M. the appellant, Dhundi Nath, came to the house, and informed the girls mother, Puna Bewa, that the females of his house would like to take Nisha to see the Jatra in village Dian, and he said that if the girl was allowed to go he would bring her back within two days. Banamali had, left the house the previous day, saying that he was going to his sisters place at village Taraboi.

3. Nisha was allowed to go with Dhundi Nath, and after they had proceeded some distance they were joined by Banamali. After some time, Nisha realised that she was not being taken to see the Jatra. She was taken in a bullock-cart to the railway station, and thence by train and cart to village Jajang. On the way, Dhundi and Banamali revealed to her that they were taking her away for the purpose of getting her married to some one else. They said they were providing a rich husband for her and she would be better off. She protested and asked to return to her mother, but was threatened by the appellants. At Jajang they went to the house of Bharat Tihadi (P.W. 11). Next day Dhundi Nath returned, but Banamali remained on in the house for twelve days, after which he also left, and some days after that the girls marriage was celebrated with Bharat Tihadi and a sum of Rupees 192 was paid over by Bharat to Banamali as bride price.

4. Meanwhile, Puna Bewa had become anxious at the prolonged absence of her daughter. She made inquiries from Dhundi Nath, who first told her that Banamali had taken Nisha to his sisters place at Taraboi. Puna went to Taraboi, but Banamalis sister told her that neither Banamali nor Nisha had come there. She went to Banamalis house at Trilochanpur, but there also failed to find any trace of her daughter. Then she went to Dhundi Naths place at Jhampalpur, and there Dhundi Nath admitted that he, Banamali and also, he said, Balabhadra Misra (P.W. 5) and Bharat Naik had taken the girl to village Jajang inKendrapara sub-division, and given her in marriage to Bharat Tihadi. Thereupon, Puna Bewa went to the police station at Brahmagiri, and lodged information. That was on 1st May 1942, a month and eight days after the girl was said to have been kidnapped or abducted.

5. There can be no doubt about the main (acts of the story. In fact, they have been largely admitted. Puna and Nisha both told their stories in Court. The original marriage to Dinabandhu Hota was proved by him, and the second marriage to Bharat Tihadi was proved by Bharat Tihadi himself (P.W. 11) and by the priest (P.W. 8) and the barber (P.W. 9). Bharats story was that he was an innocent victim. He was not told that the girl had a previous husband living. He had actually paid out Rs. 192 (he says it was to the girls mother), and he would not have paid that money had he not been deceived with regard to the real facts. There can be no doubt that the girl was taken away as alleged and married to Bharat Tihadi. The investigating Sub-Inspector actually found her in Bharat Tihadis house. There can also be no doubt that the two appellants were the leading spirits in the affair and were paid Rs. 192 by Bharat. The person who acted as go between in the marriage has been examined, and I can find no reason for not accepting his evidence. He is Balabhara Misra (P.W. 5), and he says that Bharat Tihadi, who was known to him, came to his house in search of a bride. Dhundi Nath also came there and met him, and agreed to arrange for a bride. Subsequently, both came again to his house with Banamali. Rupees 192 was fixed as the bride price and was paid by Bharat to Banamali in his presence and in that of Banchhanidhi Misra and others. Banchhanidhi has also been examined. He is P.W. 4, and he also states that Rs. 192 was paid to Banamali by Bharat in his presence at Balabhadra Misras house. There can, I think, also be no doubt that the girl was below the age of 16. A lady doctor has been examined, and gives her opinion that Nisha was aged about 14 years. The most she could be was 15 in the doctors opinion.

6. The petition of appeal which was preferred by the appellants from jail itself contains admissions covering almost the entire prosecution case. It is worth setting it out in full. It runs as follows:

The girl Nishamani had been married to a person from before. As she was oppressed by the husband and the mother-in-law in several ways, that girl could not bear the oppressions and fled away to her fathers house. After some days Puna Devi, the mother of that girl resolved to have her married elsewhere, and her youngest son-in-law Banamali Tripathy, Dhundi Nath and others as respeotable persons, got the marriage settled to the effect that Rs. 182() should be paid and the girl purchased and taken away. In accordance therewith Bharat Tihadi, the bridegroom of the second marriage, paid Rs. 182() to the girls mother and took away the girl. He also paid Bs. 20 to these two petitioners as travelling expenses to take the girl with him and to have the girl married to him in his village and then return. The former husband of that girl came and asked her mother to send his wife to his house. Her mother said to the son-in-law that she had gone to her relatives house and that as soon as she returned, she would send her to his house. The son-in-law said I have come to know that you have married her elsewhere. I shall bring a case against you. Saying this he went away. Thereafter, within about one and a half months, the mother brought a case against these petitioners and got the case conducted in collusion with one Govinda Misra who had ill-feelings against these petitioners. These petitioners have been sentenced not according to proper administration of law and justice, but most unjustly.

7. It will be observed that everything is admitted, and there is only one difference between this story put forward by the appellants themselves and the prosecution version. That is as regards the part played by the girls mother. According to this petition, the mother was in it with the rest of them. In my opinion, in that respect the petition probably states the real facts. That is, I think, the sole point upon which the prosecution case is not true. There are indications in the evidence which, to my mind, indicate that the mother, Puna, is not as innocent as she makes out. I have already said that I see no reason for doubting the evidence of Balabhadra Misra. He makes some very significant statements in cross-examination. He says:

I cannot name the mother, but she came to my house 8 or 10 days before the payment of money. The mother came to see the bridegroom. The mother relied on Banamali for settlement of the marriage. The mother of the girl had come to my village on the date of payment and was waiting at the Grameswar temple which is 200 cubits from my house. Banamali paid the money to the mother of the girl. Before payment Bharat enquired whether the girl was already married. Banamali and the mother said that the girl was not married previously. That talk took place at my house when the mother had come there.

8. He identified Puna Bewa as the woman who had come.

9. It is also clear that there had been some trouble between Nisha and her mother and the first husband. So it is not at all unlikely that the mother would wish, if possible, to get her daughter married elsewhere. The girl herself made some significant admissions. She said that she had been assaulted by her mother-in-law with a red-hot iron, and in consequence had fled away from her husband and come back to her mothers house in the night. She added that four years previously her husband had brought a case against her and her mother. The first husband, Dinabandhu Hota, does not admit that there was any such case. Nevertheless, I think, there is some significance in the girls statement. The girl further stated that about a year previously, her first husband came to her house to take her to his house, but her mother objected alleging ill-treatment and said, she would send her four months after. Later on, her husband came again, but could not take her because, she says, she and her mother were ill. It seems clear that Nisha having attained the age of puberty, as is proved by the lady doctor, her first husband was anxious to take her to his house, but was being resisted by the girls mother.

10. I see no reason to doubt that the petition of appeal filed from jail, which must have been prepared by the appellants themselves, states the real facts.

11. It only remains to consider of what offences, if any, the appellants could properly be convicted upon these facts. There can be no doubt, in my judgment, that both have been rightly convicted for cheating u/s 420. Both the appellants took part in the deceiving of Bharat Tihadi which resulted in his paying a largo sum which he would not have paid had he known that the girl had a previous husband living. The money was actually paid to Banamali. He may have made it over to Puna Bewa, but that can make no difference to his guilt.

12. I also consider that the appellants have been rightly convicted u/s 366 of the Code for abduction. "Abduction" is defined in Section 362:

Whoever by force compels or by any deceitful means induces, any person to go from any place is said to abduct that person.

13. With regard to the use of force, there is only the uncorroborated statement of the girl herself, and it would be dangerous to rely upon it. But with regard to the use of deceit, all the circumstances of the case corroborate her statement. This was a young girl, little more than a child. She cannot have known the consequences of marrying a second husband while the first was living, or that it was a serious criminal offence punishable with a long term of imprisonment. Her story that the appellants said to her

You have been unhappy with your previous husband. Now we are going to arrange a new and rich husband for you, so that you will be better off, and will not have to go back to the first husband.

rings true. Such a statement was, of course, deceiving the girl, because there could be no second marriage in the circumstances. The second marriage, if gone through, would have no legal effect. I find it impossible to believe that even if the girl, as she may have, did go with the appellants more or less willingly she did so understanding that there could be no real marriage, and that she was being asked to commit a criminal offence. If she did consent it could only have been under a misapprehension and was no consent in the eye of law. The circumstances do disclose abduction within the meaning of the section. And as for the intent or knowledge necessary to constitute the offence u/s 366 while it is true that there could have been no intent to marry the girl against her will since there could be no legal marriage, there was certainly an intent that she should be seduced to what would be in the circumstances illicit intercourse, and at the lowest the appellants certainly knew that it was likely that the girl would be forced or seduced to illicit intercourse. All the elements, therefore, necessary to constitute an offence u/s 366 of the Code have been established.

14. The case is different with regard to the other two charges. I have said that there was a second conviction of Dhundi Nath u/s 366 on the ground that he also kidnapped the girl with the necessary intent. In any view, that separate conviction and sentence, even though the sentences were made concurrent, was plainly wrong. What Dhundi Nath did could at most amount to one offence u/s 366, not two.

15. Apart from that, however, the conviction for kidnapping cannot, in my judgment, be sustained. "Kidnapping from lawful guardianship" is defined in Section 361 as follows:

Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsoundmind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

16. There is an explanation to the effect that the words "lawful guardian" in the section include any person lawfully entrusted with the care or custody of such minor or other person.

17. "Lawful guardian" in the section, therefore, includes a de facto guardian such as the girls mother, was at the time, though the first husband continued to be the legal guardian. But it cannot be said that Nisha was taken from the keeping of her mother with-out the latters consent. That has certainly not been established. On the contrary, as have already indicated, I am inclined to believe that the mother was party to the whole proceedings and was aware of what was being done.

18. It is argued, however, for the prosecution that the consent or otherwise of the mother is irrelevant, that the girl must be deemed to have been still in the keeping of her legal guardian, her first husband. He certainly did not consent, and therefore, she was taken from the keeping of her lawful guardian within the meanig of the section. It has been held in a number of cases that where a minor leaves the immediate custody of her lawful guardian for: a temporary purpose, such as a visit to friends, she will be deemed to be still in his keeping for the purposes of Section 361. In particular, the Crown has relied upon the case of Jagannadha Rao v. Kamaraju 24 Mad. 284 where the whole position in this regard has been very carefully examined. The proposition put forward is, of course, correct, but only within limits. It is significant to notice that in this case and in other cases which have been cited stress was laid upon the temporary character of the absence from the immediate custody of the lawful guardian. In this Madras case, the girl had gone on a visit to her sister for about a month and was held to be still in the keeping of the lawful guardian.

19. There must obviously, however, be a point after which it could no longer be held that the girl while out of the immediate custody of the guardian could still be deemed to be in his keeping. That indeed is made clear in Jagannadha Rao v. Kamaraju. 24 Mad. 284 The real principle to be followed in dealing with such cases is in fact set out in the judgment of Benson J. and, if I may say so with respect, I think it is quite correctly stated. The learned Judge says:

The result of the cases seems to be that the Court must consider all the facts, and see whether they are consistent or not with the continuance of the fathers legal possession of the minor. If they are not inconsistent, the minor must be held to be in the fathers possession or keeping even though the actual physical possession should be temporarily with a friend or other person.

20. Let us apply this principle to the present case. Is it a case where despite the girls absence from her husbands house she can be held legally to have been still in his keeping In my judgment, it is not such a case. It goes beyond the reasonable limit--a limit which must inevitably be to some extent arbitrary--to which the legal fiction, if I may so call it, can be extended. This girl had been away from her husbands house for a period of five or six years at least. It is doubtful whether she had ever lived in her husbands house, certainly, for any extended period. Normally speaking, a married girl in these circumstances would not go to live in her husbands house until she had attained the age of puberty. The proper place for her to reside would be with her parents. She would in the circumstances, in my judgment, be in the keeping and "keeping" is the important word not of her husband, but of her parents. In the present case, it seems probable from the girls evidence that she was even being kept by the mother against the husbands wishes, for he had twice within the previous year attempted to take her to his house and on each occasion upon one ground or another had been unsuccessful. To hold that Nisha in such circumstances and after this long period of years in her mothers house could still be the keeping of her husband would, in my opinion, be stretching the principle laid down by the rulings to an unreasonable extent. I hold then that it has not been shown that any offence of kidnapping was committed. Dhundi Nath is entitled to acquittal upon that charge.

21. There remains the charge for abetment of bigamy u/s 494 read with Section 109. It is contended that this conviction cannot be sustained, because u/s 198, Criminal P.C., no Court shall take cognizance of any offence falling under chap. 19 or chap. 2l Penal Code, or under Sections 493 to 496 both inclusive of the same Code except upon a complaint made by some person aggrieved by such offence. It has been held that the proper person to make the complaint as the person aggrieved within the meaning of this section is in cases of bigamy the first husband. There has been no such complaint in the present case, and, therefore, it is argued, the Court could not legally take cognizance of any such offence or the abetment of any such offence.

22. I am of opinion that this contention is correct. The Crown seeks to avoid the difficulty by arguing that the prohibition of taking cognizance relates expressly only to the offence itself, and not to the abetting of the offence, and it is pointed out that in Section 195, which is also a section debarring the Court from taking cognizance of certain, offences, there is an express provision in Sub-section (4) laying down that the provisions of Sub-section (1) with reference to the offences named therein apply also to criminal conspiracies to commit such offences and to the abetment of such offences and attempts to commit them. As there is no such provision in Section 198, it is argued that the Legislature did not intend that the prohibition in that section should cover anything but the substantive offence itself. Reliance is placed upon the decision of a Judge of the Allahabad High Court, sitting singly, in Munir Vs. King-Emperor, .

23. With all possible respect to the learned Judge in question, I do not think that decision was correct, and I am not prepared to follow it. Ho has relied solely upon the circumstance, which I have already noticed, that there is an express provision in Section 195 extending the prohibition also to abetment and attempts, but no such provision in Section 198. There is, however, a significant difference in the wording of these two sections. Section 195 says: "No Court shall take cognizance of any offence punishable under Sections 172 to 188, etc. etc." The offence punishable under the sections is, of course, only the substantive offence. The abetment is punishable under a different section. In the case of Section 198, however, the wording is "No Court Shall take cognizance of an offence falling under chap. 19 and so on. Surely, if we attach to these words their ordinary meaning, it must be held that the abetment of an offence and attempts to commit the offence fall under the offence itself, and I am of opinion that where the word "offence" is here used the intention was to include such minor offences as might fall under that offence, namely, attempts and abetments.

24. The fact that it was considered necessary to put an express provision in Section 195, but not in Section 198, can be explained upon this difference in the wording of the sections or alternatively it may well be that the provision in Section 195, which be it noted did not originally form part of the Code, was inserted ex abundanti cautela.

25. In my judgment, when the Court is debarred from taking cognizance of the offence it is only right to hold that it is also debarred from taking cognizance of such minor offences as would fall under that offence.

26. In this view, the conviction of the appellants u/s 494/109 of the Code must be set aside.

27. Two other points have been urged for the appellants. It is said that there has been misjoinder of charges, but I can see no misjoinder. The offences under Sections 366 and 420 are, of course, entirely distinct, but Section 235(1), Criminal P.C., lays down:

If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

28. The present case is, in my judgment, fully covered by that provision. The acts of the appellants formed a series so connected together as to form the same transaction.

29. It is contended also that the charges are defective in so far as they specify only the month in which the offences were committed, but not the actual dates. In any event, this irregularity, if irregularity there be, would be curable u/s 537 of the Code. But I do not consider that there is any irregularity. This matter is regulated by Section 222, Criminal P.C. Section 222(1) says:

The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

30. In my judgment, the particulars specified in the charges in the present case were reasonably sufficient to give the accused notice of the matter with which they were charged. That is all that the law requires.

31. In the result, therefore, I would set aside the convictions and sentences of both appellants under Sections 494/109, and the conviction and sentence of Dhundi Nath for kidnapping u/s 366. I would maintain the convictions of both appellants u/s 366 for abduction and u/s 420 for cheating. The question of sentence needs consideration. It seems to me possible on the evidence that the money, or a part of it at least, went to the mother. That is the evidence both of Balabhadra Misra and of Bharat Tihadi himself. Then with regard to seduction, no great harm has been done to this girl. She herself states that she did not sleep with Bharat Tihadi, and was not actually seduced. She told the same thing to her mother, and that is also what Bharat Tihadi himself says.

32. In the circumstances, I am of opinion that the sentences imposed by the learned Judge are much too severe. I would reduce the sentences upon each charge to rigorous imprisonment for a period of two years, and in each case I would direct that the sentences should run concurrently.

Brough, J.

I agree.