John Beaumont, Kt., C.J.
1. The accused in this case were prosecuted under Section 6 of the Child Marriage Restraint Act, XIX of 1929, in that they permitted, or failed to prevent, the marriage of their son, who was under the age of eighteen years. The marriage in question took place at Goa, outside British India, and the accused were tried by the District Magistrate of Kanara, where the accused were residing at the time of the charge. The question which we have to determine is whether the conviction was legal.
2. In general the subject of trials in British India for offences committed outside British India is dealt with by Section 4 of the Indian Penal Code, and Section 188 of the Criminal Procedure Code. It is instructive to note the history of those two sections. They are taken substantially from Sections 8 and 9 of the Foreign Jurisdiction and Extradition Act, 1879. Section 8 provides :-
The law relating to offences and to criminal procedure for the time being in force in British India shall, subject as to procedure to such modifications as the Governor General in Council from time to time directs, extend-
(a) to all European British subjects in the dominions of Princes and States in India in alliance with Her Majesty; and
(b) to all Native Indian subjects of Her Majesty in any place beyond the limits of British India.
This section deals with the subject-matter of Section 4 of the Indian Penal Code as it now exists, though the wording is by no means identical. Then Section 9 provides that such persons may be dealt with as if the offences had been committed in the place in British India where they may be found. Section 9 seems to me to deal purely with procedure, and to be a corollary to the substantive enactment contained in Section 8. Section 9 was repealed in 1882, and was re-enacted in Section 188 of the Criminal Procedure Code of that year, which is in the same terms as the corresponding section in the present Code. In 1898 Section 4 of the Indian Penal Code was amended and enacted in its present form. Uptil that date the section had applied only to Government servants, but the amended section comprised also the two classes of persons covered by Section 8 of the Foreign Jurisdiction and Extradition Act, 1879, namely, Native Indian subjects in any place beyond British India, and British subjects within Native States.
3. The Explanation to the section provides that the word ' offence ' includes every act committed outside British India which, if committed in British India, would be punishable under this Code. It is clear that celebrating a child marriage is not punishable under the Indian Penal Code, and the present case cannot therefore be brought under that section, but the Government Pleader has argued that Section 188 of the Criminal Procedure Code is not confined purely to procedure, but makes it a substantive offence for anybody to do an act which would be an offence if committed in British India. This view prevailed in the lower Courts, but I am unable to accept that construction of the section. It seems to me that a consideration of the history of the section and the language employed shows that it deals with procedure and nothing else. So far as material for the present purpose, what the section enacts is that when a Native Indian subject of Her Majesty commits an offence at any place without and beyond the limits of British India, he may be dealt with in respect of such offence as if it had been committed at any place within British India at which he may be found. ' Offence ' is defined by Section 4, Clause (o) as any act or omission made punishable by any law for the time being in force. To attract the section it must be shown that an accused has been guilty of an act or omission made punishable by some law (which must mean some law applicable to British India) for the time being in force. In support of his argument the Government Pleader has relied strongly on Queen-Empress v. Eaya Bhima I.L.R.(1888) 13 Bom. 147, where it was held before the amendment to Section 4 of the Indian Penal Code, that native Indian subjects who committed in Portuguese territory acts which would have amounted to criminal breach of trust if committed in British India could be prosecuted under Section 188 of the Criminal Procedure Code of 1882 at the place in British Indian territory where they were subsequently found. The reasoning of the Court is not given in full, and the Judges seem to have assumed that an offence had been committed, although generally an act constituted an offence by the Indian Penal Code would not be an offence if committed outside British India (see Empress v. S. Moorga Chetty I.L.R.(1881) 5 Bom. 338) The assumption, however, may have been justified on the language of Section 8 of the Foreign Jurisdiction and Extradition Act of 1879, which was then in force, but has since been repealed.
4. Where the Court is dealing with an act committed outside British India by an Indian subject which would be an offence punishable under the Indian Penal Code if it had been committed in British India, Section 4 of the Indian Penal Code, as it now exists, constitutes the act an offence, and it can be dealt with under Section 188 of the Criminal Procedure Code. Cases arising under other statutes which contain a provision similar to Section 4 of the Indian Penal Code of the Indian Railways Act, 1890, and the Indian Telegraph Act, 1885) can be similarly dealt with. But the Child Marriage Restraint Act, XIX of 1929, contains no such provision, and the prosecution must prove that the Act makes penal a child marriage performed outside British India. By Section 1(2) it is provided that the Act extends to the whole of British India, including British Baluchistan and the Sonthal Parganas. Section 2 defines a ' child marriage ' as meaning a marriage to which either of the contracting parties is a child, and ' child ' is defined as a person who, if a male, is under eighteen years of age, and if a female, is under fourteen years of age. Sections 3 and 4 make it punishable for a male to contract a child marriage ; Section 5 makes it punishable to perform a child marriage ; and Section 6 makes it punishable for any person having charge of a minor who contracts a child marriage, whether as parent or guardian or in any other capacity, to promote the marriage or permit it to be solemnised or negligently fail to prevent it from being solemnised. It is to be noticed that the Act is not confined to child marriages contracted between members of any particular race or community, and if it be penal for a Hindu father to promote the marriage in Goa of his son aged seven years, it is equally penal for an English father to promote the marriage of his son aged seventeen years in London. In my opinion, the Act is limited in its operation to British India and only strikes at marriages contracted in British India. I am of opinion, therefore, that the child marriage contracted in this case outside British India is not an offence under the Act, and if it is not an offence under the Act, there is no offence to which Section 188 of the Criminal Procedure Code can apply.
5. It was lastly argued by the Government Pleader that even if a child marriage celebrated outside British India did not constitute an offence, still permitting within British India such a marriage would be an offence, and that such permission was proved in the present case. Apart from the fact that this was not really the charge made against the accused, I am of opinion that Section 6 only aims at permitting or failing to prevent a marriage which is made penal under the earlier sections, and does not impose a penalty for permitting a marriage which is lawful.
6. The application must, therefore, be allowed and the conviction set aside. Fine, if paid, to be refunded.
N.J. Wadia, J.
7. I agree.