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Jaswantsinghji Fathehsinghji Thakore Vs. Kesuba Harisinh Dipsinhji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 187 of 1954
Judge
Reported inAIR1955Bom108; (1954)56BOMLR819; 1955CriLJ357; ILR1955Bom6
ActsCode of Criminal Procedure (CrPC) , 1882; Code of Criminal Procedure (CrPC) , 1898 - Sections 4, 131, 177, 190, 197A, 197A(2), 316, 340, 342, 369, 404, 409, 488, 488(7), 488(8), 489 and 490; Constitution of India - Articles 4 and 362; Cattle Trespass Act, 1871
AppellantJaswantsinghji Fathehsinghji Thakore
RespondentKesuba Harisinh Dipsinhji
Appellant AdvocateA.D. Desai, Adv.
Respondent AdvocateV.S. Desai, Adv. for Govt. Pleader and ;D.V. Patel, Adv.
Excerpt:
.....filed against ruler of former indian state without sanction under section 197a(2)-competency of application--application under section 488 whether a charge for commission of offence. ; an application for maintenance filed under section 488 of the criminal procedure code, 1898, by a wife or a child against a person cannot be regarded 'as making of a charge for the commission of an offence' against him. ;an application for maintenance under section 488 of the criminal procedure code, 1898, was filed against the petitioner, who was the ruler of a former indian state, by his wife and minor son. the petitioner opposed the application on the ground that in the absence of sanction of the central government under section 197a(2) of the code, the proceedings taken against him were incompetent..........proper maintenance from the petitioner.it was urged on behalf of the petitioner before the learned trial magistrate that he was a 'ruler' within the meaning of the constitution of india, and the proceedings taken against him in the court of the resident magistrate were in the absence of sanction of the central government incompetent. in support of that contention reliance was placed upon sen. ii of the white paper, which gives a list of the former indian slates which merged with the province of bombay, and upon article 4 of the agreement between the petitioner and the governor general of india dated 26-5-1948. article 4 provided :'thakorshi, his wife, his mother, the heir apparent and his wife shall be entitled to all personal privileges enjoyed by them within or outside the territories.....
Judgment:
ORDER

1. Thakore Shri Jaswantsinghji Fate-singhji (hereinafter referred to as the petitioner) was a Ruler of an Indian State known as Kho-dal. On 26-5-1948, the Khodal State merged with the Union of India and the territory thereof now forms part of the Bombay State. The petitioner claims that he is recognised under Article 362 of the Constitution of India as a Ruler.

Opponents Nos. l and 2 claiming, respectively, to be the wife and son of the petitioner, filed an application under Section 488, Criminal P. C. in the Court of the Resident Magistrate, First Class, Kapadvanj, for an order that they be awarded proper maintenance from the petitioner.

It was urged on behalf of the petitioner before the learned trial Magistrate that he was a 'Ruler' within the meaning of the Constitution of India, and the proceedings taken against him in the Court of the Resident Magistrate were in the absence of sanction of the Central Government incompetent. In support of that contention reliance was placed upon Sen. II of the White Paper, which gives a list of the former Indian Slates which merged with the Province of Bombay, and upon Article 4 of the agreement between the petitioner and the Governor General of India dated 26-5-1948. Article 4 provided :

'Thakorshi, his wife, his mother, the heir apparent and his wife shall be entitled to all personal privileges enjoyed by them within or outside the territories of the State immediately before 15-8-1947.'

Reliance was also placed upon Section 197A, Criminal P. C., which was added by the Leigslature by Act I of 1951 with a view to effectuate the agreement,1? entered into by the Government with the Rulers of Indian States. Sub-section (2) of Section 197A provides that 'no Court shall take cognizance of any offence alleged to have been committed by the Elder of a former Indian State except with the previous sanction of the Central Government.'

2. The learned trial Magistrate held that the petitioner was not charged with having committed an 'offence', and therefore 'the previous sanction of the Central Government' to the institution of the application was not necessary and the proceedings under Section 488, Criminal P. C., were competent against the petitioner, and that he had jurisdiction to entertain the application.

3. Against the order passed by the trial Magistrate, an application in revision was filed in the Court of Session at Nadiad by the petitioner. The learned Sessions Judge held that an application under Section 43S, Criminal P. C., did not amount to 'accusation of an offence within the meaning of Section 197A, Criminal P. C.', and therefore the trial Magistrate had jurisdiction to entertain the application filed by the opponents and sanction of the Central Government was not a condition precedent to the opponents' making an application'. On that view the learned Sessions Judge rejected the revision application filed by the petitioner. The petitioner has come to this Court in revision.

4. Section 197A, Sub-section (9), prohibits criminal courts from taking cognizance of offences alleged to have been committed by Rulers of former Indian States except with the previous sanction of the Central Government. The expression 'offence' is defined in Clause (o) of Section 4, Criminal P. C., as follows:

' 'offence' means any act or omission made punishable by any law for the time being in force: it also includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871.'

5. The Criminal Procedure Code does not make failure to maintain the wife and children punishable. What is made punishable under the Code is failure without sufficient cause to carry out the order passed by a Magistrate for a payment of maintenance. Section 488 of the Code provides a summary remedy available to the wife and children - legitimate or illegitimate - of a person on proof of neglect or refusal to maintain, to obtain an order for maintenance against that person.

It is true that if an order for payment of maintenance under Section 488, Criminal P. C., is not corn-plied with, the same may be executed by issue of a warrant for levying the amount due under the order in the manner provided for recovery of fines. The Magistrate who passes an order for payment of maintenance can also sentence the person ordered to pay maintenance, 'if he fails without sufficient cause to comply with the order', to suffer rigorous imprisonment for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant. But the fact that the Legislature has made provision for enforcement of the order passed under Section 488, Criminal P. C., for levying the amount due under it in the manner in which fines are recovered, or by directing that the person who contumaciously disregards the order shall be liable to punishment, does not convert an application for maintenance, into a charge for commission of an 'offence' within the meaning of Clause (o) of Section 4, Criminal P. C.

What is essentially a civil remedy is given to abandoned wives and children by providing in Chap. XXXVI of Criminal P. C. a right to approach a Magistrate of the First Class or a Presidency Magistrate for an order for payment of maintenance. The fact that the proceedings lie in the Court of a Magistrate does not convert those proceedings into 'criminal proceedings' nor proceedings in respect of an offence. Inherent in the provisions of Sections 433, 489 and 490, which fall in Chapter XXXVI of the Code, is sufficient indication that the proceedings under Section 488 of the Code are not regarded as proceedings in respect of an offence.

Section 177, Criminal P. C. provides for 'place of enquiry and triat of every offence, and other sections in Chap. XV in which Section 177 falls, deal with place of enquiry and trial in certain specified cases. But Sub-section (8) of Section 488 provides for the forum which must be approached for trial of an application filed for maintenance under Section 438. It is evident that the Legislature did not regard an application for maintenance under Section 488, Criminal P. C., as a complaint charging the husband or the father with commission of an offence.

Under the Criminal P. C. of 1898, in Sub-section (8) of 8. 488 before it was amended in 1923 it was provided that 'the accused may be proceeded against' in any district where he resides etc. Thereafter by Section 131 of Act 18 of 1923, Sub-section (8) was amended, and the words 'the accused may be proceeded against' were substituted by the words 'Proceedings under this section may be taken against any person'. That again is another indication that the person against whom an application is made for payment of maintenance is not regarded as one who is charged with commission of an offence.

It is settled law that a judgment once delivered by a criminal court cannot be altered by It, and that is provided in Section 369, Criminal P. C. Sections 488 and 489, Criminal P. C., provide for alteration in the allowance awarded in view of change of circumstances, or for other reasons. Section 190, Criminal P. C., provides for cognisance of offences by Magistrates. If the Legislature treated the failure to maintain a wife or a child as an offence, it was unnecessary to make a special provision regarding cognisance of applications for maintenance under Section 488, Criminal P. C.

Sub-section (7) of Section 488 authorises the Magistrate trying a case to award costs. An order for costs to a successful litigant is again not the normal incident of a criminal trial in our Jurisprudence. In my judgment the Courts below were right in holding that the petitioner was not charged with commission of any offence, and therefore Section 197A, Criminal P. C. did not bar the jurisdiction of the trial Court.

6. Reliance was placed by Mr. A. D. Desai upon a judgment of the Allahabad High Court reported in - 'In the matter of the petition of Malcolm DeCastro', 13 All 348 (A). It is true that Mr. Justice Knox, who delivered the judgment of the Court in that case, observed at page 350 of the report:

'........the neglect to maintain a wife is an offence, inasmuch as it is an omission which is made punishable by the Code, and as an offence its place of trial must be determined by the provisions laid down in Chapter XV of the Code.'

That case was decided under Chap. XXXVI of the Criminal P. C., Act 10 of 1882, which did not contain any provision similar to Sub-section (8) of Section 488, Criminal P. C. of 1898. It is true that even under the Criminal P. C. of 1882 the expression 'offence' meant 'any act or omission made punishable by any law for the time being in force'; and Section 177 of that Code provided that 'every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed.'

There being no provision in the Criminal P. C. conferring territorial jurisdiction upon certain Magistrates for trial of applications under Section 488 of the Code, the Court in that case preferred to treat the application for maintenance as a 'complaint' in respect Of commission of an offence. It may be noted that since the year 1832, Section 488 of the Criminal P. C. has undergone substantial changes. Whereas under Section 342, Clause (4), Criminal P. C., no oath can be administered to an accused person, Section 340 expressly provides for evidence being given by a person against whom an application is made for maintenance. It Is evident that in the view of the Legislature applications under Section 488, Criminal P. C,, are not governed by the terms of Section 342, Criminal P. C.

The Legislature has made special provision for dispensing with the presence of the person against whom an application is made under Section 488, Criminal P. C., and has also provided a period of limitation after the expiration of which the amount of maintenance awarded cannot be recovered.

By the amendment of Section 340, Criminal P. C., in 3923 it has been provided, that any person against whom proceedings are instituted, 'inter alia', under Chap. XXXVI of the Code may offer himself 'as a witness in such proceedings.' Whatever the view, which could be taken of Section 488 as it stood when - 'In re Malcolm DeCastro (A)' was decided, the scheme of the Criminal P. C. of 1898 as amended in 1923 is inconsistent with the view that in entertaining an application for maintenance, a Magistrate entertains a complaint for an offence alleged to have been committed by the person from whom maintenance is claimed.

Mr. Desai also relied upon - 'In re The Petition of Shaik Fakrudin', 9 Bom 40 (B) in support of his contention that proceeding for maintenance was a proceeding relating to the commission of an offence against the father or husband. It was held in that case that

'A complaint under Section 488, Criminal P. C. (Act 10 of 1882) falls within the cognizance of the Magistrate competent to entertain such complaint, and within the local limits of whose jurisdiction the husband or the father is actually residing at the date of such complaint.'

It is true that in that case the learned Judges who decided that case called an application for maintenance, a 'complaint', and held following the practice in England under analogous provisions, that cognizance could be taken of that 'complaint' by the Magistrate competent to entertain the complaint and within the local limits of whose jurisdiction the husband or the father was actually residing at the date of the 'complaint'.

It is evident on a perusal of the judgment that the Legislature having failed to make any express provision conferring territorial Jurisdiction upon Magistrates to try cases under Section 488, Criminal P. C., the Court regarded an application under Section 488 as a 'complaint' of an offence triable by a Magistrate within whose jurisdiction the opponent after the date of the application resided.

7. In this connection it may also be useful to refer to a judgment of this Court reported in - 'Reg. v. Thaku', 5 Born HCR (Cr) 81 (C) in which the Court held that

'An order of maintenance, under Section 316, Criminal P. C. (Section 488, Criminal P. C., Act V of 1898), is a 'judicial proceeding of a Criminal Court' Within the meaning of Section 404 of that Code, but no appeal lies against such order under Section 409.'

It appears that in that case the Court took the view that there was no conviction by a criminal Court, and hence an appeal against the order awarding maintenance was incompetent. In my view, having regard to the terms of Section 488, Criminal P. C., as It stands at present, an application for maintenance filed by a wife or a child against a person cannot be regarded 'as making of a charge for the commission of an offence' against him.

8. The Courts below were, therefore, right In the view they took that the trial Court had jurisdiction without the sanction of the Central Government to try the application filed under Section 488, Criminal P, C., against the petitioner.

9. The rule is discharged. The petitioner topay the costs under Section 488, Sub-section (7), CriminalP. C., of opponents Nos. 2 and 3. Costs quantifiedat Rs. 50. Interim stay discharged.

10. Rule discharged.


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