Decided on February 09,1951

Gobinda Biswas And Ors. Appellant
THE STATE Respondents


RAM LABHAYA, J. - (1.)THIS petn. of revn. is directed against an order of the Addl. Ses. J., L.A.D., dated 22 -6 -1950 by which the convictions of the petnrs. Under Section 363, I. P.C. were confirmed and the sentences awarded to them upheld. The peters, were sentenced each to undergo R. I. for 3 months. They were also sentenced to a fine of Rs. 100/ -each and in default of its payment to R. I. for one month.
(2.)THE prosecution case was that the complain ant Ganesh Kumar Bhowick was the guardian of the minor girl Kamala aged about 9 or 10 years. On 18 -6 -1949, the minor was removed from the custody of her guardian during his absence. The minor, according to the prosecution case, was kept confined in the house of Khudiram Biswas, petnr. 3. The petnrs. are said to have intended giving the minor away in marriage to petnr. 2. The learned trial Mag. found that the girl was a minor and that she was removed from the custody of the complainant who was lawfully entrusted with the care and the custody of the minor.
(3.)THE learned Counsel for the petnrs. has raised only one contention. He has urged that the complainant was not the lawful guardian and therefore conviction Under Section 363, I. P.C. could not be sustained.
We do not think that there is any force in this argument. It is true that the maternal grandmother of the minor was alive and the complainant was a cousin. But the finding arrived at in the case is that the minor was living with the complainant, her cousin, since the death of her mother. She is an orphan. The maternal grandmother lived by begging. The complainant, therefore, had the custody of the minor with her consent which was necessarily implied. He was thus the 'de facto' guardian of the minor. As held in 'Banamali v. Emperor' 22 Pat 263, the lawful guardian Under Section 361, I. P.C. would include a 'de facto' guardian. In that case ,a married girl ran away from her husband's house. She remained away for a period of five or six years and lived with her mother, it was held that she was not In the 'keeping' of her husband but of her mother within the meaning of Section 361.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.