Jildar Kaiyer vs Emperor

Jawala Prasad, J.—Complainant Chhatoo of Jale, District Darbhanga, had been to Assam with his wife and a number of children to work as a labourer. He learnt that his son Parmeshwar was ill at home; and he returned with his wife and children, leaving his daughter Jailach in charge of accused, Jildar Kaiyer, a resident of village Nada, District Muzaffarpur, who was working in Assam as a labourer. Jildar is related to Chhatoo in various ways. Chhatoo was in need of money to cover the expenses of his journey, and he borrowed Rs. 50 from Jildar Kaiyer, pledging the girl for re-payment of his loan. The transaction was verbal, and it is said that the said loan of Rs. 50 was to be re-paid in Jeth following and the girl was then to be returned to Chhatoo. Chhatoo did not go back to Assam, as he learnt that there was dearth of employment. In the meantime accused Jildar Kaiyer pawned the girl with accused Nebati Kaiyer of Khorai, District Purnea, for Rs. 93 with certain terms and stipulations set forth in an agreement written on a paper with one anna stamp (Ex. 2). It was stipulated that the loan was to be re-paid in 1335 Asin (corresponding to October, 1927), failing which Nebati was at liberty to marry the girl to his son. Jildar Kaiyer returned home from Assam in Jeth last, and Chhatoo was informed that the girl did not come with him. His story is that he went to Jildar for the girl but was told that Jildar did not know his daughter at all. Subsequently he came to know from Rudra Kunjra, who is a relation of his, that there was a rumour that the girl had been sold by Jildar to some one near Katihar. Accordingly he went in search of the girl to the Districts of Muzaffarpur, Purnea, Katihar, Kasba, Banailigarh and Jalalgarh and ultimately reached the village of accused Nebati and saw the girl at his house. He did not go to him, but he learnt in the village from others that it was not known why the accused had purchased the girl. He went straight to the Police Station at Kasba and lodged information, but the Sub-Inspector had already received an information that day from the chaukidar of the village that the accused had purchased and brought the girl in question and he was coming to the village to recover the girl. He recovered the girl and made her over to the complainant. In these circumstances both Jildar and Nebati have been convicted u/s 363 of the Indian Penal Code for taking away the girl from the lawful guardianship of her father, the complainant.

The Courts below have not accepted the story told by Jildar as to his having made strenuous search for the girl in the several districts mentioned above. They have held that the girl was entrusted by Chhatoo to accused Jildar so as to ensure the return of the loan of Rs. 50 that was taken by him and that Jildar subsequently pawned the girl with accused Nebati to secure a loan of Rs. 93. The Courts below have held that these findings are sufficient to bring both the accused within the purview of Section 363 of the Indian Penal Code, and the reason given is that the accused Jildar had no right to sell or hypothecate the girl in question nor had Nebati the right to take the girl in pledge for his loan and under the terms set forth in Ex. 2. In short, the view is that the disposal of a minor girl like chattels is forbidden by law and that fact alone would amount to taking the minor from the lawful custody of its natural guardian.

The girl was voluntarily made over to the charge of Jildar by her natural guardian and consequently Jildar became the lawful guardian of the girl for the time being and he had all the rights and liabilities of the legal guardian. He could exercise the same right of transfer of guardianship as the natural guardian of the minor did, provided he returned the girl to the custody of the lawful guardian the moment that was demanded. No doubt, the pledging of a girl to secure a loan is not a legal contract and may not be enforced in law: but if a minor is retained in the custody of a person with the consent of the lawful guardian he will not commit the offence of kidnapping defined in Section 361 of the Indian Penal Code and made punishable u/s 363 of the Code. It is essential in terms of that section that the minor should be taken or enticed out of the keeping of the lawful guardian of the minor "without the consent of such guardian"; and if there is consent given, the section has no application. It does not matter whether the consent is given for consideration or not. If after having obtained custody of a minor in a lawful manner with the consent of its guardian the minor is married or disposed of in such a manner as to make it impossible for the, lawful guardian to get back the custody of the minor, an offence u/s 361 would be committed and the temporary guardian doing any such act would be liable under the section but so long as nothing is done which would render the restoration or exercise of the custody of the child by the lawful guardian impossible, the mere fact of transferring the guardianship by the temporary guardian would not constitute an offence. Jildar had obtained the keeping or custody of the girl with the consent of her father and as such he was lawfully in possession of the girl. He made over the girl to Nebati temporarily to secure the loan of Rs. 93. The agreement between him and Nebati is certainly not enforceable under the law, but we have nothing to do with that. He did transfer the girl to Nebati, and if that had rendered the return of the girl to the guardianship of her father when demanded impossible, then certainly the act of Jildar and of Nebati would amount to an offence. It is not the case of Chhatoo that he demanded the girl from Jildar and was refused. He left the girl with Jildar and he never demanded the girl back from him until after Jildar returned home from Assam. He says in the First Information that he went to Jildar after hearing of the sale of the girl by him and Jildar refused any knowledge of the girl meaning thereby that he refused to return the girl. If that were a fact Jildar would certainly be liable, for it was his duty to return the girl to her natural guardian, the father, the moment he demanded the girl back. The Court below has not accepted this case of the complainant. Therefore, Chhatoo did not demand the girl from Jildar; and it is not his case that he ever demanded her from Nebati for seeing the girl at Nebati's house without seeing or questioning Nebati Chhatoo went straight to the thana and lodged information. There is no finding of the Courts below that the girl was ever demanded from any of the accused and was refused. Therefore, it is not proved that the girl was retained in the custody of either of the accused after the guardianship temporarily created in favour of Jildar was terminated. Hence no offence of kidnapping has been committed by any of the accused. In fact the father of the girl does not seem to be anxious about the custody of the girl and has been pawning her. He did so with Jildar accused and after having recovered the girl through the Police from accused Nebati he has again pawned her with one Ramdhari a man of Supaul for Rs. 60.

The result is that the conviction of, and the sentence passed on, the petitioner are set aside. Nebati has not filed any application in revision; but as in the view taken by us the case against him also is not proved he should get the benefit of this finding and should be acquitted. Both the accused should be set at liberty.

James, J.

I agree.