1. The question in this case is whether the trial of accused No. 1 for adultery, and accused No. 2 for abetment, is barred by the result of a previous prosecution in which accused No. 1 was acquitted of adultery with the same woman. The previous trial was held in respect of offences under Sections 497 and 498, Indian Penal Code, committed in Nana's Peth within the jurisdiction of the Court of the Bench Magistrates. The Bench Magistrates in their judgment state : 'The offence under Section 497 alleged to have been committed in Kamatipura only remains to be dealt with. This locality is beyond the jurisdiction of the Court. 'If the acquittal of the accused by the Bench Magistrates be confined to the offence in Nana's Peth, there was no trial of the accused with regard to the charge of adultery in Kamatipura, If, on the other baud, the judgment be read as covering the offence of adultery in Kamatipura, it was obviously a judgment by a Court which had no jurisdiction to try the offence at Kamatipura. The acquittal, therefore, by the Bench Magistrates, was without jurisdiction be far as the offence in Kamatipura is concerned.
2. It is urged on behalf of the applicant that it was a continuing offence, and under Section 182 of the. Criminal Procedure Code the Bench Magistrates had jurisdiction. Section 497 of the Indian Penal Code says: 'Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.... It, therefore, follows that every act of sexual intercourse amounts to an offence of adultery, and that if a person has several sexual intercourses with a woman, it cannot be said that the offence is a continuing offence. In Queen Empress v. Emaji (1880) C C. 150 it was held that if a man who was convicted of adultery with another man's wife continues his adulterous intercourse, he will be liable to a second conviction and punishment for the fresh act, notwithstanding that the woman has not returned to her husband after the conviction of her paramour. Adultery is an infringement of the rights of the husband towards his wife, and when the offender has once been convicted or acquitted of the offence of adultery, which consisted of one sexual intercourse, he cannot with impunity commit another offence of adultery under Section 497. We think, therefore, that Section 182 of the Criminal Procedure Code has no application to the facts of the present case. The offence in this case is not a continuing offence, nor does it consist of several acts done in different local areas. Here there are distinct offences committed in distinct local areas.
3. Reference has been made to Section 531 of the Criminal Procedure Code in support of the contention that the acquittal by the Bench Magistrates was not without jurisdiction. The legality of the trial by the Bench Magistrates has not come for decision before this Court in appeal or revision. Section 531, therefore, has no application on the question of the jurisdiction of the Bench Magistrates. Similarly, under Section 21 of the Civil Procedure Code, no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest 'possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice, Unless there is a failure of justice, such objections cannot be allowed by an appellate or revisional Court, but the Court is not thereby invested with jurisdiction which it does not possess. It, therefore, follows that the Bench Magistrates had no jurisdiction in this case to acquit the accused.
4. The accused was not a person who had been once tried by a Court of competent jurisdiction for an offence and acquitted of such offence within the meaning of Clause (1) of Section 403, nor was the Court by which he was first tried competent to try the offence with which he was subsequently charged under Clause (4) of Section 403. 'Jurisdiction' means legal authority to adjudge. It may mean the local jurisdiction of a Court or the legal authority of a Court to do certain things, See Mohesh Chandra Dass v. Jamiruddin Mollah. I.L.R (1900) Cal. 324 It may mean the power of administering justice according to the means which the law has provided and subject to the limitation imposed by that law upon the judicial authority: Har Prasad v. Jafar Ali I.L.R (1885) All. 345 There may be lack of jurisdiction according to the nature of the offence as prescribed by col. 8 of Schedule II of the Criminal Procedure Code. A Court which has jurisdiction to deal generally with the offence and with the offender may not be competent to deal with a particular case on the ground of want of local jurisdiction as laid down by Sections 177 to 184 and 188 of the Criminal Procedure Code, or on account of the non-fulfilment of some essential condition such as the absence of necessary sanction under Sections 195 to 199 of the Criminal Procedure Code.
5. It was urged on behalf of the accused, relying on In re Ganapathi Bhatta I.L.R (1911) Mad 308, that Section 403, Clause (4), refers to the character and status of the tribunal when it refers to competency to try an offence. The case turns upon the question whether a sanction under Section 195 of the Criminal Procedure Code is a condition of the competency of the tribunal or only a condition precedent for the institution of the proceedings. The view of the Madras High Court in In re Ganapathi Bhatta I.L.R (1911) Mad 308, is not accepted by this Court in In re Samsudin I.L.R (1896) Bom. 711 and Emperor v. Jivram Dankarji I.L.R (1915) Bom. 97, s.c. 17 Bom. L.R. 881, by the Allahabad High Court in 1928 Emperor v. Jiwan I.L.R (1914) All. 107 and by the Patna High Court in Sheikh Mohammad Yasin v. King-Emperor. I.L.R (1926) Pat. 452 It was held in Emperor v. Jivram Dankarji I.L.R (1915) Bom. 97 : 17 Bom. L.R. 881 by Batchelor J. that the grant of sanction is a condition precedent to the Court's jurisdiction to try an offence, and that without such sanction the Court is not ' competent to undertake the prosecution. Section 537, Clause (b), of the Criminal Procedure Code, which was then in force, was also considered in that case, and it was held by Hayward J. that the Court proceeding with the first charge could not be said to have been a Court of competent jurisdiction to try the second charge by reason of the fact that proceeding illegally with that Charge would not necessarily have vitiated the trial by virtue of Section 537, Clause (b). Similarly, notwithstanding Section 531 of the Criminal Procedure Code, the Bench Magistrates in this case could not be said to be a Court of competent jurisdiction if they had no jurisdiction to try the offence in the second case under Section 177 of the Criminal Procedure Code. Competency of jurisdiction would, therefore, include competency to try for reasons other than jurisdiction over the offender and the offence. We think, therefore, that the view of the lower Court is correct, and the Bench Magistrates had no jurisdiction to acquit the accused of the offence of adultery committed at Kamatipura outside Poona city.
6. We, therefore, discharge the rule.
7. I agree. The judgment of the learned Bench Magistrates states plainly that the locality of Kamatipura is outside the jurisdiction of the Court, and that only the offence under Section 497 of the Indian Penal Code alleged to have been committed at Kamatipura remains to be dealt with. The judgment, however, proceeds for several pages more. The Magistrates do not state how they have jurisdiction to deal with the offence at Kamatipura. If they did not intend to deal with that offence, which is not clear from the judgment, then there could not have been any acquittal in respect of that offence, and if the judgment is to be read as dealing with the offence at Kamatipura, then the Magistrates had no jurisdiction to deal with that. The offence in the present case is not a continuing offence under Section 182 of the Criminal Procedure Code, a matter which has already been dealt with by my learned brother in his judgment. Section 531 of the Criminal Procedure Code does not apply, in my opinion, to the facts of the present case, as we are not sitting to set aside the order of the Bench Magistrates. In these circumstances it appears that the Bench Magistrates had no jurisdiction, as they themselves admit, to deal with the offence of adultery stated to have taken place at Kamatipura, and, therefore, there has been no acquittal by a Court of competent jurisdiction, and there can' be no bar under Section 403. The rule must, accordingly, be discharged.