(1) This is a reference under S. 438 of the Code of Criminal Procedure, made by the Second Additional Sessions Judge, Shimoga, who on examining the records in C.C. No. 2099 of 1963 on the file of the Special First Class Magistrate, Sagar, felt that the order passed by the learned Magistrate on 25-2-1964 was erroneous.
(2) Respondent 2 in this revision case filed a complaint before the Special First Class Magistrate, Sagar, against respondents 1 and 3 to 6 in this revision case who were arraigned as accused 1 to 4. The complainant was the elder brother of Jayalakshmiyamma who was admittedly the wife of Accused 1, Venkataramana. It was alleged in the complaint that even when Jayalakshmiyamma was alive, accused 1 married another woman by name Vedavathiamma on 25-4-1963. The other accused are alleged to be the abettors of this bigamous marriage. Jayalakshmiyamma, wife of accused 1 is alleged to have married Vedavathiamma. After the death of Jayalakshmiyamma, her brother filed the complaint on 2-12-1963.
(3) After the accused appeared before Court, accused 4 Gangamma, filed an application before Court questioning the maintainability of the complaint on the ground that the complainant was not the aggrieved person and hence the Court could not take cognizance of the offence punishable under S. 494 of the . The learned Magistrate overruled the objection by his order dated 25-2-1964. Accused 4 Gangamma filed revision petition before the Second Additional Sessions Judge who has doubted the correctness of the order made by the learned Magistrate and has made this reference.
(4) The short question for consideration in this case is whether the brother of the deceased first wife of accused 1, has locus standi under S. 198 of the Code of Criminal Procedure to file a complaint for the offence of bigamy.
(5) Section 198 of the Code of Criminal Procedure, after the amendment by Central Act 56 of 1960, reads as follows:
198. No Court shall take cognizance of an offence falling under Chap. XIX or Chap. XXI of the Indian Penal Code or under Ss. 493 to 496 (both inclusive) of the same Code, except upon a complaint made by some person aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the customs and manners of the country, ought not to be compelled to appear in public, or where such person is under the age of eighteen years or is an idiot or lunatic, or is from sickness or infirmity unable to make a complain some other person may, with the leave of the Court, make a complaint on his or her behalf:
Providing further that where the person aggrieved by an offence under S. 494 of the said Code-
(a) is the wife, any relative of the wife may make a complaint on her behalf;
(b) is the husband, and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (1) of section 199B may, with the leave of the Court, make a complaint on his behalf.
Explanation.--For the purpose of clause (a) of the second proviso, 'relative' means any lineal descendant or sister or her father's or mother's brother or sister.
(6) Looking at the scheme of Section 198 of the Code of Criminal Procedure, it is clear that when the offence of bigamy is committed by the husband, the wife is the 'aggrieved party' with the meaning of this section. None of her relatives, however closely related, can be said to be the 'aggrieved party' for the purpose of Section 198 Cr. P.C.
(7) It is not the case of the complainant that Jayalakshmiyamma, wife of accused-1 was below eighteen years of age or that she not to have been compelled to appear in public and that the complaint was filed by the complainant with the leave of the Court as contemplated under the first proviso to S. 198 Cr. P.C.
(8) Under the second proviso to S. 198 Cr. P.C., when the aggrieved party is the wife, the relative of the wife, as specified in the explanation to the Section, is empowered to file a complaint on her behalf.
(9) The complainant who is the elder brother of Jayalakshmiyamma, wife of accused-1, undoubtedly comes within the definition of the word 'relative' as stated in the explanation to S. 198 Cr. P.C. If Jayalakshmiyamma was alive, it does not admit of any doubt that the complainant, who is her elder brother, could have filed this complaint on her behalf. But as Jayalakshmiyamma died before the complaint was filed, the question is whether her brother can be said to act on her behalf when he filed a complaint after her death.
(10) The words, 'on behalf of' have been construed in several judicial decisions. In Bank of Bengal v. Fagan, 7 Moo P C 61 the Privy Council observed as follows:
'.... But it is said, that the power was given to do the acts in question on the donor's behalf. This is really only saying that what the agent is to do, he is to do as representing the principal; as doing it on behalf of, or in the place and in the right of, the principal....'
(11) In Lewis v. Nicholson, (1852) 18 Q.B. 503 the defendants acting as agents for the assignees, addressed a letter to the plaintiff's solicitor as follows:
'.....We hereby, on behalf of the assignees consent that the net proceeds of the effects included in the said bill of sale shall be paid over to you or your client...................'
The plaintiff's solicitor consented to the sale. It was contended for the plaintiffs that the defendants considered themselves personally bound by the undertaking. Lord Campbell, C.J. observed as follows:
'I think that the true construction of the letters is that the defendants also were not contracting parties, but acting as agents for the assignees, making a contract for them, and, as I think, personally contracting that they had authority to make a contract binding the assignees. The letter expresses that, in consideration of the plaintiff consenting to the sale, 'we hereby, on behalf of the assignees, consent.................................................'
(12) Wightman, J. who delivered a concurring but separate judgment observed as follows:
'..........The proof is that a contract was made by them 'on behalf of assignees', language which, I think, prima facie imports that they made the contract only as agents........'
(13) Thus the words, 'on behalf of' connote an agency; when one person acts on behalf of the other the former acts as a agent of the latter. No doubt ordinarily, an agency, that is, the relationship of principal and agent, is the result of a contract express or implied; but an agency may also be created by a statute.
(14) In Article 2 of Bowstead's classical treatise on Agency, it is stated as follows:
'............The relationship of principal and agent exists, and can only exist, by virtue of the express or implied assent of both principal and agent 'except in certain cases of necessity in which the relationship is imposed by operation of law''.
(Underlining (here in ' ') is mine)
(15) When Section 198 Cr. P.C. authorises any relative of the wife to make a complaint on her behalf, it constitutes such relative the agent of the wife for the purpose of filing a complaint for the offence punishable under Section 494 I.P.C. If the relative who files a complaint on behalf of the wife is regarded as an agent by operation of law, it follows that the authority by an agent must come to an end on the happening of any event which determines the agency. It is well settle principle of the law of Agency that the agency will come to an end with the death of the principal or the agent. The authority given under S. 198 Cr. P.C. to any relative to file an end on the death of the principal that is, the wife. After the death of the wife such relative can no longer claim to act as her agent and file a complaint on her behalf.
(16) There is one more reason why the authority of such relative to file a complaint for the offence of bigamy cannot continue after the death of the wife. As observed by Caspersz and Sharfuddin, JJ., in Uttam Chand v. Emperor, ILR 39 Cal 344 the expression 'on behalf of' connotes some benefit to the person on whose behalf another person may act. It cannot be said that after the death of the aggrieved wife, the filing of the complaint against her husband for the act of bigamy would be to her benefit. The prosecution of the guilty husband will not confer any benefit even to her estate. Hence the complaint filed by a relative of the wife after the death, cannot be said to be on her behalf.
(17) For the reasons mentioned above, the authority conferred under Section 198 Cr.P.C on a relative specified in the explanation to that section to file a complaint on her behalf, must be understood as being one that could be exercised only when she is alive and not after her death. In the present case, admittedly, Jayalakshmiyamma had died by the time her elder brother filed the complaint. Therefore, the complaint cannot be regarded as one made by a person authorised under Section 198 Cr.P.C. and the learned Magistrate could not take cognizance of the offence.
(18) Mr. Srinivasan, the learned Counsel for respondent 2, contended that once the proceedings had been commenced by the Magistrate taking cognizance of the offence complained of the death of the complainant cannot affect the proceedings. In support of his contention, he relied on a decision of the Rangoon High Court in U Tin Maung v. The King, AIR 1941 Rang 202. That was a case in which a person who had the authority to make a complaint had initiated criminal proceedings. The death of the complainant after the Court had taken cognizance of the offence, was held as not amounting to abatement of the proceeding. This decision can have no application to the facts of the present case since the question in this case is whether the Magistrate could, in law, take cognizance of the case and commence the proceedings. This is not a case in which the wife died after her relative had filed a complaint on her behalf. As stated earlier, the complaint was filed several months after her death. Similarly, the decision in Nathu v. Sheopal, : AIR1963MP47 cited by Mr. Srinivasan was also a case where the aggrieved party died after the commencement of the proceedings. Hence that decision also cannot help Mr. Srinivasan.
(19) In the result, this reference is accepted, the order of the learned Magistrate dated 25-2-1964 is hereby set aside and the complaint filed before the Magistrate is dismissed as not being cognizable under Section 198 of the Code of Criminal Procedure.
(20) Reference accepted.