Order.- This petition has been taken on file on a reference by the District Magistrate, Chittoor, for quashing the charge under section 363, Indian Penal Code, framed by the Stationary Sub-Magistrate, Madanapalle, against one Subbanna for having kidnapped one Venkatalakshmamma, a girl aged 16 years on 4th December, 1949. The facts were briefly these. The Sub-Inspector of Police, Thambanapalle, filed a charge sheet in the Court of the Stationary Sub-Magistrate, Madanapalle, against accused Subbanna under section 366, Indian Penal Code, for kidnapping Venkatalakshmamma, a fatherless minor girl of 16, from the guardianship of her mother, P.W.2 on 4th December, 1949, with intent that she might be compelled to marry him against her will. That case was taken on file by the Stationary Sub-Magistrate, Madanapalle, as P.R.C. No. 4 of 1950. As the girl had stated to P.W.10, the Sub-Inspector of Police that she loved the accused and was having sexual intercourse with him even before her marriage in the fields and elsewhere, and had willingly eloped with him and had indeed induced him to take her away and marry her as she did not like to marry a Bangalore man fixed up for her by her mother and intensely disliked by her, the Assistant Public Prosecutor probably relying on the rulings in Fulchand Tepriwalla v. King Emperor1 and Bishnath Prasad v. King-Emperor2 applied to the Sub-Magistrate by a memo dated 23rd March, 1950, to send the case to the Sub-Divisional Magistrate, Madanapalle, for trial under section 363, Indian Penal Code as he was not pressing the charge under sections 366, Indian Penal Code. So without examining the prosecution witnesses, the Sub-Magistrate sent the case to the Sub-Divisional Magistrate Madanapalle, for taking it on file under section 363, Indian Penal Code, and disposing of the case. He simply endorsed on the case file thus: “Submitted to the Sub-Divisional Magistrate, as requested by A.P.P.II.” The Sub-Divisional Magistrate, Madanapalle, sent the case back to the Sub-Magistrate stating that, when the charge sheet and complaint disclosed an offence under section 366, Indian Penal Code, the Assistant Public Prosecutor could not say that he was giving up the offence under section 366, Indian Penal Code at his will and pleasure and that it was the duty of the Court to hear the witnesses and determine what offence was committed. I may here remark that the Assistant Public Prosecutor had not applied to the Stationary Sub-Magistrate, under section 494, Criminal Procedure Code for permission to withdraw from the prosecution of the offence under section 366, Indian Penal Code and the Court had not given its consent to any such withdrawal and discharged the accused regarding the offence under section 366, Indian Penal Code. So the Sub-Divisional Magistrate’s action in returning the case to the Sub-Magistrate, cannot be said to be unjustified. The Sub-Magistrate, after receiving back the case, enquired into it as a P. R. case and finally came to the conclusion that only an offence under section 363, Indian Penal Code would stand, as the marriage was not by compulsion or against the will of the girl but with her full consent, and, indeed, demand. So, he framed a charge only under section 363, Indian Penal Code against the accused, but, unfortunately, fell into an illegality by not framing a charge as in a committal Court, and also by recording the accused’s plea after the charge was framed. The charge runs: “I, Stationary Sub-Magistrate, Madanapallee, hereby charge you as follows: That you, on or about 4-12-1949, kidnapped Venkatalakshmamma, a minor girl, under 18 years, from the lawful guardianship of her mother Sidhamma and thereby committed an offence under section 363, Indian Penal Code and within the cognisance of the First Class Magistrate, Madanapallee. I hereby direct that you be tried by the said Court on the said charge.” It will be noticed that this kind of charge was not within the powers of the Sub-Magistrate as he could not under the law frame a charge relating to a first class offence (which he was not “competent to try” under section 254, Criminal Procedure Code-the principle of the Privy Council ruling in Yusofali Mulla Noorbhai v. The King1 that the Court should be one “competent to hear and determine the case” will apply) and record the accused’s plea of “not guilty” and direct the First Class Magistrate to try the case. He could only frame charges for offences within his cognizance or within the cognizance of the Court of Session and not for offences within the cognizance of the First Class Magistrate, Madanapalle, indeed even the printed form of the charge sheet would have warned him about this illegality. But he corrected the form and committed the error! He could only frame charges for offences within his cognizance or within the cognizance of the Court of Session and not for offences within the cognizance of the First Class Magistrate, Madanapalle, indeed even the printed form of the charge sheet would have warned him about this illegality. But he corrected the form and committed the error! Nor did he proceed under section 346, Criminal Procedure Code and stay the proceedings and submit the case with a brief report to the Sub-Divisional Magistrate, Madana-pallee as that section requires. Naturally, the Sub-Divisional Magistrate, Madanapalle moved the District Magistrate, Chittoor, to move this Court to quash the illegal charge and to direct the committal of the case by the Sub-Magistrate; Madanapalle to the Sessions Court, Chittoor, under section 366, Indian Penal Code or to direct the case to be tried by the Sub-Divisional Magistrate, taking it on file only under section 363, Indian Penal Code. He urged that in any case, the charge framed by the Sub-Magistrate had to be quashed by this Court as it was illegal and not merely irregular and curable under section 537, Criminal Procedure Code. The. District Magistrate agreed with him and made this reference. I have perused the records and heard the learned Public Prosecutor. The accused is absent though served. It is clear to me that, under the law and applying the principle of the Privy Council ruling in Yusofali Mulla Noorbhai v. The King1, the charge framed by the Sub-Magistrate is illegal as urged by the Sub-Divisional Magistrate, the District Magistrate and the learned Public Prosecutor, and not merely irregular and curable under section 537, Criminal Procedure Code. Magistrates must stick to the law and not strike out the well-known and recognised clauses in printed forms of charges approved by this Court and frame new and unauthorised methods of charges regarding offences which they are not “competent to try” and send the cases up to the superior magistrates to try, after recording the accused’s plea also. That is clearly illegal, and not merely irregular under section 537, Criminal Procedure Code. So I quash the charge under section 363, Indian Penal Code framed by the Sub-Magistrate, Madanapalle. That is clearly illegal, and not merely irregular under section 537, Criminal Procedure Code. So I quash the charge under section 363, Indian Penal Code framed by the Sub-Magistrate, Madanapalle. The next question is whether the case is a fit one to be directed to be committed by the Sub-Magistrate, Madanapalle to the Court of Session, Chittoor for an offence under section 366, Indian Penal Code or whether it is to be simply directed to be tried by the Sub-Divisional Magistrate, Madanapalle for an offence under section 363, Indian Penal Code. There is a conflict between the other High Courts regarding the validity of a minor girl’s consent to marriage with the person who kidnaps her when considering a charge against him under section 366, Indian Penal Code. The Calcutta High Court in Fulckand Tepriwalla v. King-Emperor2 and the Oudh Chief Court in Bishnath Prasad v. King Emperor3 have taken the view that the clause “against her will” in section 366, Indian Penal Code means only the minor’s own will and not the will of the lawful guardian whereas the Allahabad High Court in Bhagwati Prasad v. King Emperor4 and Sultan v. The King Emperor5 and the Bombay High Court in Emperor v. Ayubkhan Mirsultan and others6 have held that minor’s consent is no consent at all even for purposes of section 366, Indian Penal Code and that a prosecution for an offence under section 366, Indian Penal Code will lie in such circumstances. There is no Madras case on this point. Prima facie, I am inclined to agree with the view of the Bombay and Allahabad High Courts, as the principle of section 366, (as of section 363 itself) is to uphold the lawful authority of the parents or guardians over their minor wards and throw a ring of protection over the girls themselves, and to penalise sexual commerce on the part of persons who corrupt Or attempt to corrupt the morals of the minor girls by taking improper advantage of their youth and inexperience, and as under section 376, Indian Penal Code the consent of a girl under sixteen is expressly enacted to be irrelevant and immaterial and ignored. I offer no final opinion now on this point, but it is obvious that the point will have to be considered and decided in this State one way or the other, and, so, it is better that the accused be directed to be committed to the Court of Sessions, Chittoor, for an offence under section 366, Indian Penal Code which will permit of a conviction under section 363, Indian renal Code if it will not stand and the lesser offence will. Of course, I say nothing also as to whether an offence under section 363 also will be finally made out. That is all for the trial Court. In the end, I direct the Sub-Magistrate, Madanapalle to commit the case to the Court of Sessions, Chittoor, for an offence under section 366 Indian renal Code, after framing such a charge against the accused. K.S ----- Reference accepted.