BAI RANI BAVA Vs. JIVA VARSANG
HIGH COURT OF GUJARAT
BAI RANI BAVA
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(1.)* * * *
The point that arises to be considered in this reference is as to whether on the averments made in the complaint whether the Judicial Magistrate First Class at Kodinar had jurisdiction to entertain and try the accused for the offence under sec. 494 of the Indian Penal Code. The parties are Hindus. The marriage of the complainant took place with accused No. 1 in the year 1961 at the village of Madhvad in Kodinar Taluka in accordance with the Hindu religious and customary rites prevailing amongst them. Both of them are then said to have lived together at Madhvad within the jurisdiction of the Kodinar Court for about six months as husband and wife and it is thereafter that she has been deserted by accused No. 1 with the result that he has not been living with her. In the first week of August 1965 the accused No. 1 is said to have contracted the second marriage with the daughter of Sidi Sakkai at Vanakbara in Diu Taluka which is now governed by the Union Government through a Lieutenant Governor. Since the parties were obviously governed by the Hindu Marriage Act 1955 as provided in sec. 11 of the Act any marriage solemnized after the commencement of this Act shall be null and void.......if it contravenes any one of the conditions specified in clauses (i) (iv) and (v) of sec. 5. The condition in clause (i) of sec. 5 is contravened by reason of the fact that the complainant was alive when her husband-the accused No. 1 contracted marriage with the daughter of Sidi Sakkai in August 1965. Sec. 17 then provides that Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of secs. 491 and 495 of the Indian Penal Code (Act XLV of 1860) shall apply accordingly. Then sec. 494 of the Indian Penal Code provides that Whoever having a husband or wife living marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Taking all these provisions together it would be essential for the complainant to establish that during her life time her husband the accused No. 1 had contracted marriage with another woman viz. Bai Hiru daughter of Sidi Sakkai and that such marriage is void as contemplated under the law governing the Hindus viz. the Hindu Marriage Act 1955
(2.)Now it appears that Vanakbara is in Diu Taluka which is at present being governed by the Union Government through a Lieutenant Governor. By reason of the Notification dated 20-7-1963 issued by the Lieutenant Governor in exercise of the powers conferred upon him by sec. 3(2) of the Regulation both the Indian Penal Code and the Code of Criminal Procedure have been extended to territories with effect from 1 Sec. 5(1) provides that All offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions hereinafter contained. Clause (2) thereof says that All offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. Since the complaint discloses the offence under sec. 494 read with sec. 114 of the Indian Penal Code having regard to clause (1) of sec. 5 of the Code the provisions of the Criminal Procedure Code would govern the investigation inquiry and trial in respect of any such offence under the Indian Penal Code. Even if it is taken to be an offence committed by reason of sec. 17 read with sec. 11 and sec. 5(1) of the Hindu Marriage Act by reason of clause (2) thereof the provisions of the Code of Criminal Procedure would govern the case. The Hindu Marriage Act nowhere provides any special procedure irrespective of any such cases mentioned therein. For determining the jurisdiction of the Court therefore ore has to turn to Chapter XV of the Criminal Procedure Code which deals with the jurisdiction of the Criminal Courts in inquiries and trials. 5 Sec. 177 of Cir. Pro. Code then provides that Every offence shall ordinarily he inquired into and tried by a Court within the local limits of whose jurisdiction it was committed The rule laid down by this section is one of general application and governs all criminal trials held under the Code of Criminal Procedure. The word Ordinarily used in that section would mean except where provided otherwise in the Code. That has been the settled law in that respect as observed in a case of Narumal v. State of Bombay. A.I.R 1960 Supreme Court 1329. It is no doubt true that if sections following sec. 177 give jurisdiction to the Court to try any such offence that can he availed of and in that respect Mr. Choksi the learned Govt. Pleader for the State invited our attention to sec. 179 of the Criminal Procedure code which lays down that 6When a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued. such offence may he inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done. or any such consequence has ensued. It was urged by him that it is by reason of the complainantS who happened to be the wife of accused No. 1 by the first lawful marriage being alive that the subsequent marriage contracted by him becomes void and that way becomes an offence punishable under sec. 494 of the Indian Penal Code. When that is so according to him though the marriage took place at Vanakbara in Diu Taluka the consequence of that marriage becoming void can be said to have ensued at the place where the first marriage took place within the jurisdiction of the Court at Kodinar and therefore both the Court at Kodinar as also the Court at Diu would have jurisdiction to try the case. Mr. Trivedi. the learned advocate appearing amicus curiae at the request of the Court since the accused was unrepresented pointed out by reference to the case of State v. Dhulaji Bavaji. A.I.R. 1963 Gujarat page 234 (1962. III G L R. 409) that sec. 177 of the Criminal Procedure Code would govern the case as it was the second marriage when contracted that the offence had come to be committed by the accused. The facts of the case were that while the police party was returning from the village Indroda in Kalol Taluka they received some information as a result of which they went to a place called Thakarda Vas at the village of Shertha. They found the accused in a state of intoxication and lying on a public road. Since be was not able to take care of himself and not able to walk steadly and his breath was smelling of liquor panchnama was drawn up about his physical condition and he was then sent to the Medical Officer Kalol. He was found to have been under the influence of alcohol. The Medical Officer had taken sample of blood and urine of the accused. The blood sample was sent to the Chemical Analyser and it was found that the sample blood contained Q. 130 per cent. W/V of ethyl alcohol. On those facts he was charge-sheeted for the offences under sections 66(1)(b) 85 (i) and 85(1)(iii) of the Bombay Prohibition Act. The learned Magistrate found that the accused had consumed liquor but he was of the view that the prosecution had failed to prove that the accused was found in an intoxicated state on the public road and therefore he was not liable to be convicted under sec. 85(1)(i) or sec. 85(1)(iii) and that the prosecution had also failed to prove that the accused had consumed liquor at a place within the jurisdiction of his Court. He therefore held that he had no jurisdiction to try the accused and he was accordingly acquitted Against that order the State bad filed an appeal and it was heard by the Division Bench of this Court. While considering the offence under sec. 66(1)(b) of the Bombay Prohibition Act said to have been committed by the accused the question as to the jurisdiction of the Court arose. The contention was that since he was not found to have consumed alcohol within the jurisdiction of that Court he can not be dealt with and convicted for the said offence. That argument was sought to be met by putting reliance on sec. 179 of the Criminal Procedure Code saying that it could be tried at the place where he had actually consumed liquor or at a place where he was found to have been in an intoxicated state on the public road. While considering that question both secs. 177 and 179 of the Criminal Procedure Code came to be considered and it was held that a Magistrate had no power by virtue of sec. 177 of the Criminal Procedure Code to try an accused for an offence committed wholly outside the limits of his jurisdiction. Consequently before a person can be convicted it is for the prosecution to establish that the Court which takes cognizance of and tries him has territorial jurisdiction. With regard to sec. 179 of the Criminal Procedure Code it was observed that it applies to those offences which by their very definition consist of an act and its consequence. The consequence must form part of the offence. The act and consequence together must constitute the offence. If therefore the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it not essential for the completion of the offence then sec. 179 cannot apply. Looked at from this point of view sec. 179 would not serve any purpose for the simple reason that an act on the part of accused No. 1 becomes void as a result of his contracting marriage with the daughter of Sidi Sakkai at Vanakbara inspite of his first wife having been alive. The offence became complete. There hardly remained anything to be done so as to say that a particular consequence had ensued within the territorial jurisdiction of the Kodinar Court. In a case of Radhabai Mohandas v. State of Bombay. A.I.R. 1955 Bombay 439 such a point had arisen and it was held that the criminal act is the marriage and not the possession of the Bombay State domicile. In that case it has been observed that when such a marriage is performed outside the Bombay State no part of the offence can be said to have taken place in the Bombay State. It follows therefrom that the offence falling under sec. 494 of the Indian Penal Code becomes complete as soon as it is proved that the second marriage is solemnized when the first wife is alive. That marriage had taken place admittedly in Vanakbara in Diu Taluka and it is at that place that the offence con be said to have taken place and not within the jurisdiction of the Kodinar Court. Same view hag been taken in a case of T. N. Venkataraman and others v. Pushkalammal A.I.R. 1950 Madras 823. After holding that the provisions of Criminal Procedure Code are attracted it has been observed that under sec. 177 of the Code it is only that Court within whose jurisdiction the offence of bigamy was committed that could try the accused charged with that offence and that the residence of the offender does not confer jurisdiction upon a Court to try an offence that took place outside its jurisdiction In other words neither the residence of the complainant nor the fact about the complainant and the accused No. 1 having lived together and led the married life within jurisdiction of that Court can confer any jurisdiction on the Kodinar Court for trying the offence under sec. 494 of the Indian Penal Code said to have been committed by accused No. 1. That obviously had been committed at Vanakbara in Diu Taluka. The learned Sessions Judge was right in holding that the learned Magistrate had no jurisdiction to try the case.
(3.)It was urged by Mr. Parikh the learned advocate appearing for the complainant that when the application was first rejected by the learned Magistrate and that point was decided viz. about the Court having jurisdiction to try and proceed with the case another application repealing the same contention in the same Court cannot be allowed to be reagitated and more so when he did not prefer any revision application in the Court of Sessions against that order on Ex.6 Now it is true that the same Court cannot review its previous order and that way the learned Magistrate had passed a proper order. But a Sessions Court had every right to consider any such point affecting jurisdiction of the Court in revision if brought to its notice and when he has dealt with it in its revisional powers no exception can be taken by any party. He referred to sec. 531 of the Criminal Procedure Code which says that No finding sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry trial or other proceeding in the course of which it was arrived at or passed took place in a wrong sessions division. district sub-division or other local area unless it appears that such error has in fact occasioned a failure of justice. Even if that sec. 331 were to apply to an order such as the one passed by the learned Magistrate it can be easily said that it would cause prejudice to the accused resulting in failure of justice by reason of an error such as one said to have been committed by the learned Magistrate viz. about his proceeding with the trial in respect of an offence which was not committed within his territorial jurisdiction. The accused would be put to considerable embarrassment and it is not a case of jurisdiction of a Court within even the same district or any subdivision thereof. The offence is committed in altogether a different area now governed by the Indian Union. At any stage of a proceeding this Court can intervene and correct any such error or flaw particularly when prejudice to the accused is caused resulting in failure of justice. It would be the duty of this Court to remove such an error committed by the learned Magistrate in exercising jurisdiction when he had none over that area where the offence was committed by the accused in the case. I am grateful to Mr. D.C. Trivedi the learned advocate for the assistance given to the Court in this case.
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