(1) This Revision case is against the order of acquittal passed by the Sub-Divisional Magistrate, Peddapuram.
(2) A complaint was filed by the petitioner against four persons under S. 494, Penal Code, read with S. 4 (2) of the Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949) on the allegations taht the first accused took a second wife while his marriage with the complainant's daughter was subsisting, that the second wife is the daughter of the 4th accused and that the accused 2 to 4 actually assisted the 1st accused in committing this offence. A number of witnesses were examined for the prosecution to prove both the marriages.
(3) The main plea of the accused was that the complaint was incompetent in that it offended against the provisions of S. 198, Criminal P. C., Agreeing with this objection, the lower court acquitted all the accused. This revision is directed against that Order.
(4) The main point for consideration in this case is whether the view of the Sub-Divisional Magistrate is correct. It is urged in support of his case by Mr. Chinnappa Reddy, the learned counsel for the petitioner, that S. 198 is inapplicable to this case. According to him S. 198 governs only offences under S. 494 but not cases which are deemed to be offences under that section.
The substantive offence alleged to have been committed by the respondents, contends the learned counsel, is one under S. 4 (2), Hindu (Bigamy Prevention and Divorce) Act, which only says that party to a marriage void under S. 4 (1) shall be deemed to have committed an offence under S. 494, which means that it is not really an offence under S. 494. It is urged that when a particular thing is deemed to be something it is really not what it is deemed to be.
Such being the case the procedure prescribed in S. 198 need not be followed in the case of offences created under S. 4 of the Madras Hindu (Bigamy Prevention and Divorce) Act.
(5) I do not think I can give effect to it. If, as contended the second marriage during the continuance of the first marriage is sought to be made an offence under S. 494, surely the provisions governing the laying of complaints for an offence under S. 494 will be attracted.
(6) This point was considered by Bench of the Madras High Court in -- 'Srinivasa Aiyar v. Saraswati Ammal', : AIR1952Mad193 (A), and it repelled a contention similar to the one urged in this case. At p. 197 of the report it is stated thus :
'In various Act of the local legislature, the words 'as if they were arrears of land revenue' were introduced so as to recover the amount due to the State. This expression has been construed to mean that the procedure laid down in the Revenue Recovery Act is made applicable in its entirely, see -- 'Ibrahim Khan v. Rangasamy Naicken', 28 Mad 420 (B) and -- 'Sankaran Nambudripad v. Ramasamy Iyer', AIR 1919 Mad 590 (c) where the earlier authorities were all collected.'
In view of this decision it is not necessary to pursue this point. Suffice it to say I express my respectful accord with the principles stated therein.
(7) It was nexturged by Mr. Chinnappa Reddy, that the complaint could be filed by the father of the first wife of the first accused, who is a minor, as he is a person aggrieved within the is a minor, as he is a person agrrieved within the meaning of S. 198. To substantiate this position reliance was ;placed on the decision in -- 'Daem Sradar v. Batu Dhali', 3 Cri LJ 187 (Cal) (D). In that case Woodroffe J. and Mukerji J. held that the father of a minor husband was entilted to lay a complaint against persons committing an offence under S. 494, Penal Code. In support of their ocnclusion reliance was also placed on -- 'Thakur Das v. Adhar Chandra', 32 Cal 425 (E), which related to a case a complaint for the offence the defamation.
With great respect to the learned Judges, the considerations that govern the right of members of the familky with whom the person defamed resided to institute a complaint are altogether different from thoise relating to the offence of bigamy. The learned Judges thought that S. 199, Criminal P. C. throws some light on the intendment of S. 198. It was remarked that if really it was only a person directly affected that could file a complaint there was no necessity for enacting S. 199, and that even offences under ss. 497 and 498, Penal Code, could have been included in S. 198. Emphasis was laid on the expression 'some person aggrieved by such offence.'
(8) As regards the reasoning based on S. 199, with great respect to the learned Judges, I must say that it is not quite forcible. Section 199 permits a person having the care of a woman to file a complaint on behalf of the husband at the time when the offence was committed provided the leave of the court was obtained. It seems to be for this reason that Ss. 497 and 498, Penal Code have been excluded from the purview of S. 198, Criminal P. C. and in my opinion this argued more against the conclusion reached by the learned Judges.
(9) The expression 'some person aggrieved by such offence has been consdered and explained by a Bench of the Madras High Court in -- 'In re Sessions Judge, Godaveri', 2 Weir 231 (F) which took a contrary view. It was decided in this case that the mother of a minor husband aged 16 was not a person aggrieved within the meaning of S. 198 so as to nebale her to file a complaint for an offence under S. 494. The ratio decidendi is that it is only a person that is primarily aggrieved that is competent to make a complaint.
In the opinion of the learned Judges, the intention of the legislature was not to permit other persons who might be indirectly aggrieved to file a complaint and according to the learned Judges the reason is not far to seek.
'This view seems to be necessary to avoid the difficulties which would arise when the person more remotely agrrieved wished to complain and the husband was unwilling to do so.'
They further remarked that the expression 'some person aggrieved' implies that in some cases
'there may be more person aggrieved than one, as for instance, where a number of persons are defamed by a single statement or where a number of persons are equally injured by a criminal breach of contract.'
(10) This view is shared by the Allahabad High Court in -- 'King Emperor v. Lal', 32 All 78 (G). To a similar effect is the opinion of the Bombay High Court in -- 'Queen Empress v. Bal Rukshmoni', 10 Bom 340 (H).
(11) Mr. Chinnappa Reddy relied on a number of cases where it has been held that the father or a brother of a woman who was defamed by imputing unchastity to her was competent to maintain a complaint as a person aggrieved within the meaning of S. 198. In my view , those rulling have no bearings on the question to be answered by me. In all those cases, it was thought that since the reputation of the members of the family was inexplicably bound up with that of the woman defamed and they would be as much affected as the woman herself, they were persons aggrieved by the defamation.
The observations of the learned Judges Ameer Ali J. and Handley J. in 32 Cal 425 (E) may be cited usefully in this context.
'A HIndu lady residing with her father, her brother or her son is a member of his family; and her reputation is boiund up with the reputation of the person in whose house and under whose charge she is living. If any imputation is made against her character, that would affect as much the relative with whom she is living as herself.'
In my considered judgment the principle adumbrated in the decision 2 Weir 231 (F) is the correct one.
(12) It is to get over the effect of the rulings in 2 Wrir 231 (F) and 'King Emperor v. Lala (G)' and that line of cases the proviso to S. 198, Criminal P. C. was enacted. This enables the guardian of a minor spouse or someone who is really interested in either of them to institute a complaint with the leave of the Court. It looks to me that it is to avoid frivolous complaints being filed in such cases by persons other than the wife or the husband that the leave of the Court was prescribed as a condition precedent, and it is with this object that this expression 'leave of court' seems to have been introduced for the first time in S. 199 in 1923.
It is significant that at the time when the proviso to S. 198 was added, S. 199 was also amended by inserting a similar proviso. Provision wasmade by subsequent amendments to both Ss. 198 and 199 for complaints being filed on behalf of husbands serving in armed forces if so authorised by them and with the leave of the court.
(13) On a careful consideration of all the relevant provisions of the law and the decided cases, I have come to the conclusion that it is only a person who is directly affected and injured that could make a complaint and a person who is affected or injured in a remote degree could not intimate proceedings for offences under S. 494 except with the leave of the court. It is to provide for cases of guardians of minor spouses that the proviso to S. 198, Criminal P. C., was added.
It follows that the Magistrate could not take cognizance of the case on a complaint filed without the leave of the court by the father of the minor girl whose husband is alleged to have married a second time.
(14) Another contention raised on behalf of the petitionoer is that when once the case was taken cognizance of, it is not open to the accused to challenge the validity of the complaint. It is argued that when the Court takes a complaint on file it must be deemed to have accorded its sanction. I feel that it lacks substance. It is difficult to postulate that a Court, which had not applied its mind, could be assumed to have considered the matter and given leave.
If this argument is to be accepted, the accused would be precluded from raising an objection if the complaint was entertained by a court without the least thought of the requirements of S. 198, Criminal P. C.
(15) In this connection, a rulling of the Lucknow High Court in -- 'Jagdish Narain v. Shamsara Begam', AIR 1935 Oudh 6 (I) is pertinent. Repelling a similar contention Ziaul Hasan J. observed thus:
'On behalf of the opposite party it was contended that no objection with regard to jurisdiction was taken by the applicant in the trial court. This is no doubt true; but in view of the mandatory provisions of S. 198, this cannot confer jurisdiction on the Magistrates who tried the applicant.'
I have no hesitation in rejecting this argument.
(16) There remains the question whether the Magistrate was competent to acquit the accused when he felt that the compaint was not properly made. If he considered that the case could not be taken cognizance of, on the complaint of a person who had no locus standi to do it, the only course open to him was to dismiss the complaint and not to acquit the accused. The order of acquittal is therefore set aside and in its stead one of dismissal is passed. With this modification, the criminal revision case is dismissed.
(17) Order accordingly.