Here it is useful to refer
the decision in the case of Iqbal Vs State of Kerala
(2008) Cri.L.J. 436 wherein the Hon'able Apex court in
para 9 to 11 observed as under:
“9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A
IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or knowing
that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other
than the accused; (5) that the inducement caused the girl to go
from any place or to do any act.
10. In the instant case, the admitted case of the prosecution is
that girl had left in the company of the accused of her own will
and that she was not forced to sexual intercourse with any person
other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age,
conviction u/s 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than
the accused has not been established, Section 366A
has no
application.
28. Relying upon the decision in the case of
Bhagwan Laxman Rakshe (supra) learned APP submitted that
in case, it is held that the prosecution has failed to
prove offence under Section 366A
of the IPC against
accused then accused be convicted for the offence under
Section 366 of the IPC by altering the conviction from
Section 366A
into a conviction under Section 366 of the
IPC though no charge is framed under Section 366 of the
IPC. In the said case in paragraph No.17 as referred
earlier in detail it was observed that Section 366 of the
IPC, apart from abduction or seducing a woman to compel
her marriage, interalia, deals with offence of kidnapping
with intention that the woman may be forced to illicit
intercourse. The punishment is prescribed of 10 years for
both the offences under Section 366A
and Section 366 of
the IPC and hence it would be appropriate to convert
conviction awarded under Section 366A
into conviction
under Section 366 of the IPC and as such sentence as
passed by the trial Court was maintained.
29. Here, it would be appropriate to refer three
judges decision of the Hon'ble Apex Court in the case of
Shamnsaheb M. Multtani Vs State of Karnataka (2001) 2
Supreme Court Cases 577 wherein in paragraph Nos.16,17
and 18 of the said judgment the aspect what is meant by a
minor offence for the purpose of Section 222 of the Code
of Criminal Procedure is considered. Said paragraph Nos.
16,17 and 18 read as under:“
16. What is meant by “a minor offence” for the purpose of
Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence visavis
the
other offence.
31. From the decision in the case of Shamnsaheb M.
Multtani (supra) it is clear that the test of minor
offence is not merely that the prescribed punishment is
less than the major offence and that two illustrations
provided in Section 222 of the Code of Criminal Procedure
would bring the said point home well. So also, it is
clear from the said decision that only if the two
offences are cognate offences, wherein main ingredients
are common, the one punishable among them with a lesser
sentence can be regarded as minor offence visavis
the
other offence. The ingredients of offence punishable
under Section 366A
are five as referred earlier in
paragraph No.24 (supra) and the ingredients of offence
punishable under Section 366 of the IPC are that; 1.
Kidnapping or abducting of any woman, 2. Such kidnapping
or abducting must be(
i) with intent that she may be
compelled or knowing it to be likely that she will be
compelled to marry any person against her will; or (ii)
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or (iii) by
means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may
be, or knowing that she will be, forced or seduced to
illicit intercourse. The main ingredients of these two
offences are not appearing common. The material
ingredients of offence under Section 366A
of the IPC is
the inducement of a girl under the age of 18 years with
intent that she may be or knowing that it is likely that
she would be forced or seduced to illicit intercourse and
such intercourse must be with a person other than the
accused, while material ingredients of offence under
Section 366 is kidnapping or abducting of any woman with
intent that she may be compelled or knowing it to be
likely that she would be compelled to marry any person
against her will or she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
may be forced or seduced to illicit intercourse.
Moreover, the punishment provided for both the offences
is the same and the punishment of either of these
offences is not less than the other offence. Considering
these aspects and applying the aforementioned
observations of the Hon'ble Apex Court regarding a minor
offence in the case of Shamnsaheb M. Multtani (supra) I
hold that the offence under Section 366 of the IPC cannot
be regarded as minor offence to Section 366A
of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.466 OF 2016
Bhagwat Munjabhau Hoge Vs The State of Maharashtra
CORAM : S.M.GAVHANE,J.
PRONOUNCED ON : 07.06.2019
Print Page
the decision in the case of Iqbal Vs State of Kerala
(2008) Cri.L.J. 436 wherein the Hon'able Apex court in
para 9 to 11 observed as under:
“9. The residual question is of applicability of Section 366A
IPC. In order to attract Section 366A
IPC, essential ingredients
are (1) that the accused induced a girl; (2) that the person
induced was a girl under the age of eighteen years; (3) that the
accused has induced her with intent that she may be or knowing
that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other
than the accused; (5) that the inducement caused the girl to go
from any place or to do any act.
10. In the instant case, the admitted case of the prosecution is
that girl had left in the company of the accused of her own will
and that she was not forced to sexual intercourse with any person
other than the accused. The admitted case is that she had sexual
intercourse with the accused for which, considering her age,
conviction u/s 376 IPC has been maintained. Since the essential
ingredient that the intercourse must be with a person other than
the accused has not been established, Section 366A
has no
application.
28. Relying upon the decision in the case of
Bhagwan Laxman Rakshe (supra) learned APP submitted that
in case, it is held that the prosecution has failed to
prove offence under Section 366A
of the IPC against
accused then accused be convicted for the offence under
Section 366 of the IPC by altering the conviction from
Section 366A
into a conviction under Section 366 of the
IPC though no charge is framed under Section 366 of the
IPC. In the said case in paragraph No.17 as referred
earlier in detail it was observed that Section 366 of the
IPC, apart from abduction or seducing a woman to compel
her marriage, interalia, deals with offence of kidnapping
with intention that the woman may be forced to illicit
intercourse. The punishment is prescribed of 10 years for
both the offences under Section 366A
and Section 366 of
the IPC and hence it would be appropriate to convert
conviction awarded under Section 366A
into conviction
under Section 366 of the IPC and as such sentence as
passed by the trial Court was maintained.
29. Here, it would be appropriate to refer three
judges decision of the Hon'ble Apex Court in the case of
Shamnsaheb M. Multtani Vs State of Karnataka (2001) 2
Supreme Court Cases 577 wherein in paragraph Nos.16,17
and 18 of the said judgment the aspect what is meant by a
minor offence for the purpose of Section 222 of the Code
of Criminal Procedure is considered. Said paragraph Nos.
16,17 and 18 read as under:“
16. What is meant by “a minor offence” for the purpose of
Section 222 of the Code? Although the said expression is not
defined in the Code it can be discerned from the context that the
test of minor offence is not merely that the prescribed
punishment is less than the major offence. The two illustrations
provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main
ingredients are common, the one punishable among them with a
lesser sentence can be regarded as minor offence visavis
the
other offence.
31. From the decision in the case of Shamnsaheb M.
Multtani (supra) it is clear that the test of minor
offence is not merely that the prescribed punishment is
less than the major offence and that two illustrations
provided in Section 222 of the Code of Criminal Procedure
would bring the said point home well. So also, it is
clear from the said decision that only if the two
offences are cognate offences, wherein main ingredients
are common, the one punishable among them with a lesser
sentence can be regarded as minor offence visavis
the
other offence. The ingredients of offence punishable
under Section 366A
are five as referred earlier in
paragraph No.24 (supra) and the ingredients of offence
punishable under Section 366 of the IPC are that; 1.
Kidnapping or abducting of any woman, 2. Such kidnapping
or abducting must be(
i) with intent that she may be
compelled or knowing it to be likely that she will be
compelled to marry any person against her will; or (ii)
in order that she may be forced or seduced to illicit
intercourse, or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or (iii) by
means of criminal intimidation or otherwise by inducing
any woman to go from any place with intent that she may
be, or knowing that she will be, forced or seduced to
illicit intercourse. The main ingredients of these two
offences are not appearing common. The material
ingredients of offence under Section 366A
of the IPC is
the inducement of a girl under the age of 18 years with
intent that she may be or knowing that it is likely that
she would be forced or seduced to illicit intercourse and
such intercourse must be with a person other than the
accused, while material ingredients of offence under
Section 366 is kidnapping or abducting of any woman with
intent that she may be compelled or knowing it to be
likely that she would be compelled to marry any person
against her will or she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she
may be forced or seduced to illicit intercourse.
Moreover, the punishment provided for both the offences
is the same and the punishment of either of these
offences is not less than the other offence. Considering
these aspects and applying the aforementioned
observations of the Hon'ble Apex Court regarding a minor
offence in the case of Shamnsaheb M. Multtani (supra) I
hold that the offence under Section 366 of the IPC cannot
be regarded as minor offence to Section 366A
of the IPC.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.466 OF 2016
Bhagwat Munjabhau Hoge Vs The State of Maharashtra
CORAM : S.M.GAVHANE,J.
PRONOUNCED ON : 07.06.2019
