John Beaumont, C.J. - (1.)THIS is an application by the Government of Bombay to enhance the sentence passed upon the accused. The accused was convicted under Section 373 of the Indian Penal Code, and sentenced to fifteen days' rigorous imprisonment and a fine of Rs. 100.
(2.)MR. Mahale for the accused has exercised his right of challenging the propriety of his conviction, and contends that the conviction was wrong in law, and that the case could not be brought within Section 373, because the possession, which the accused is said to have obtained over the girl in question in the present case, was not obtained from a third party. The girl, who was seventeen and a half years of age, went with the accused voluntarily. MR. Mahale has referred to a recent decision of a bench of the Calcutta High Court in Jateendra Mohan Das v. Emperor [1937] 2 Cal. 187, in which the bench held that Sub-section 372 and 373 of the Indian Penal Code are correlative of each other, and that the phrase "otherwise obtains possession" in Section 373 corresponds to "otherwise disposes of" in Section 372 and is ejusdem generis with "buying" and "hiring". That point was considered by a bench of this Court in Bhagchand Jasraj v. Emperor (1934) I.L.R. 58 Bom. 498, s.c. 36 Bom. L.R. 379 and the Calcutta High Court refused to follow that decision. Having reconsidered the matter in the light of the Calcutta decision, I remain of the opinion which I expressed in Bhagchand Jasraj v. Emperor. No doubt, the opening language of Sub-section 372 and 373 to some extent corresponds. Section 372 commences "Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years," and Section 373 commences "Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years." But to my mind, the fact that the language corresponds to some extent does not justify a conclusion that Section 373 is a mere counterpart of Section. 372. I apprehend that, if Section 372 was repealed or amended, that would not in any way affect the construction or effect of Section 373. Section 373 in terms deals with obtaining possession, and not merely with obtaining possession from a third person, and to say that because an offence under Section 372, which is aimed at disposing of a girl, necessarily involves two parties to the transaction, therefore Section 373, which is aimed at obtaining possession, must involve two parties, is, to my mind, a fallacy. Henderson J. in Jateendra Mohan Das v. Emperor in giving the judgment of the Court gives an illustration. He says (p. 190): If the mother of an illegitimate girl, whom she is unable or unwilling to maintain, made her over to the keeper of a brothel with the intent that she may be used for purposes of prostitution, the mother is guilty under Section 372 and the keeper of the brothel under Section 373.3. I entirely agree. But, in my opinion, if the keeper of the brothel meets the girl, and by physical force or by false representation induces her to enter the brothel, and keeps her there, he undoubtedly obtains possession of the girl, and the fact that no third party is involved as the giver of possession is irrelevant. In my judgment, the view taken by the Calcutta High Court imposes an entirely unjustifiable and most undesirable limitation upon the plain words of Section 373.
A further question arises in this case, however, whether what the accused did amounts to obtaining possession of this girl. As pointed out by this Court in Bhagchand Jasraj v. Emperor, obtaining possession involves exercising some sort of control over the person of the girl. In that case the question was whether the Judge had correctly summed the matter up to the jury. In the present case we are not concerned with a jury, and we have to see whether what the accused did amounts to obtaining possession. On the finding of the learned Magistrate, the girl went with the accused voluntarily. He had been living in the same house as the girl, and was a relative, and they went away together by mutual consent. There is nothing whatever to show that the accused exercised any control over the girl, that he locked her in a room, or prevented her from communicating with her friends, or did anything of that sort. As far as I can see, she was perfectly free to leave the accused whenever she wanted to. That being so, I am unable to accept the view of the learned Magistrate that the accused obtained possession of this girl of seventeen and a half years of age, within the meaning of Section 373.

Therefore the conviction must be set aside, and the fine, if paid, be refunded.