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M.H. Alexander and anr. Vs. Smt. Claira Alexander - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 115 of 1958
Judge
Reported inAIR1959All67; 1959CriLJ14
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 177 and 179; Indian Penal Code (IPC), 1860 - Sections 494
AppellantM.H. Alexander and anr.
RespondentSmt. Claira Alexander
Appellant AdvocateC.P. John, Adv.
Respondent AdvocateAkramuddin Ahmad, Adv.
Excerpt:
.....must be a necessary ingredient of the offence in order that section 179 cr. 12. i may observe here that the accused in this case can be convicted only if the trial court finds that the bigamous marriage at lucknow has been established by reliable evidence......court of a judicial officer at lucknow. the complaint did not disclose as to when and where the bigamous marriage was performed. smt. claira alexander was examined on 26-8-1957 under section 200 cr. p. c. by the magistrate and even in this statement she gave no information about the date and the place where this alleged bigamous marriage was performed. it is therefore surprising how this complaint was entertained at all. courts entertain complaints when they are satisfied not that an offence has been committed but that an offence has been committed within their jurisdiction. it is necessary for a court to satisfy itself on this point before entertaining a complaint. it appears that this was not done by the magistrate. 3. after the complaint was entertained and the accused were.....
Judgment:
ORDER

A.N. Mulla, J.

1. The facts which led to the filing of this application of criminal revision are as follows.

2. Smt. Claira Alexander is the married wife of Sri M. H. Alexander. They were married several years ago and they were also parents of some children. On 19-8-1957 Smt. Claira Alexander filed a complaint under Section 494 I. P. C. against her husband and Smt. Karuna Kumari alleging that they entered into a bigamous marriage.

This complaint was filed in the court of a Judicial Officer at Lucknow. The complaint did not disclose as to when and where the bigamous marriage was performed. Smt. Claira Alexander was examined on 26-8-1957 under Section 200 Cr. P. C. by the Magistrate and even in this statement she gave no information about the date and the place where this alleged bigamous marriage was performed. It is therefore surprising how this complaint was entertained at all. Courts entertain complaints when they are satisfied not that an offence has been committed but that an offence has been committed within their jurisdiction.

It is necessary for a court to satisfy itself on this point before entertaining a complaint. It appears that this was not done by the Magistrate.

3. After the complaint was entertained and the accused were summoned they submitted an application on 9-9-57 in which they prayed that the complainant should be asked to disclose the date and the place where this bigamous marriage was performed according to her. This application was curiously rejected by the Magistrate.

4. The prosecutrix was examined as a witness in the case on 6-11-1957. In her statement she stated that she had heard rumours since a long time about the infidelity of her husband and they were confirmed when she found that Smt. Karuna Kumari was admitted to a Maternity Hospital and gave birth to a child. It may be mentioned that Smt. Karuna Kumari was a friend of the complainant.

In her cross examination which was held on 12-11-1957 she for the first time suggested that a second bigamous marriage between the two accused was performed in January 1956. It was alleged that this marriage was performed according to Vedic rites in Mohalla Baisi-ki-masjid at the house of Sri Nickolson Mathews who is a brother-in-law of the complainant.

5. In the course of cross examination on 12-11-1957 the complainant stated for the first time that a second bigamous marriage was performed at Allahabad between the two accused on 9-1-1956 according to Arya Samaj rites. The witnesses in support of the marriage at Lucknow were then examined and on 9-12-1957 the Magistrate framed a charge under section 494 I. P. C. against both the accused.

In this charge the Magistrate did not mention the place where it was alleged that the bigamous marriage was performed. He only mentioned that the marriage was performed in January 1956. He examined the accused the same day before framing the charge and in the questions put to the accused he mentioned that this marriage was alleged to have been performed at Lucknow.

6. Subsequent to the framing of the charge the complainant made another application on 23-12-1957 praying that the Allahabad witnesses be called so that the marriage at Allahabad beproved. This application was rejected by the Magistrate.

7. The complainant felt aggrieved by this rejection of her prayer and she went up to the Court of Session praying that the order of the Magistrate be set aside the Sessions Judge came to the conclusion that the order of the Magistrate rejecting the prayer of the complainant was incorrect as the Magistrate ignored the provisions of Section 179 Cr. P. C. The Sessions Judge, however, did not make a reference to this Court but after rejecting the revisional application of the complainant he incorporated in his order a direction that the complainant should make a fresh prayer before the Magistrate and in view of Section 179 Cr. P. C. the Magistrate would allow it.

8. It is against this order that Sri Alexander and Karuna Kumari have come up in revision before this court.

9. It seems to me that the learned Sessions judge did not care to read the illustrations along with the words of Section 179 Cr. P. C. If he had done so perhaps he would not have passed the order which he did. Section 179 Cr. P. C. only applies to those offences which are not completed until a specified consequence has happened. This consequence must be a necessary part and ingredient of the offence. Where the offence is complete irrespective of any consequence. Section 179 Cr. P. C. has no application and the place where the act was committed would determine the jurisdiction of a court.

It has been held in a large number of decisions, which I need not cite, that Section 179 Cr. P. C, applies to those offences only where the act and its consequence taken together constitute the offence which is charged. It may be that the act by itself amounts to an offence and when this act is taken together with the consequence it constitutes a different offence. It the accused is to be prosecuted for the act alone then the jurisdiction of the court where the consequence occurred will not arise, but if the accused is prosecuted for that offence which was completed by the act followed by its consequence that the courts where the act was committed and where the consequence ensued will both have jurisdiction to try the offence.

The test to apply is whether the offender could have been prosecuted and punished for the offence charged even if the alleged consequence had not ensued. If the answer is in the affirmative then section 179 Cr. P. C. does not apply, but if the answer is in the negative Section 179 Cr. P. C. does apply. It should also be remembered that the consequence should be closely related to the act and not merely a remote and contingent result. A proximity of time is essential between the act and the consequence.

A consequence which is not so related to the act may at best provide evidence of the act. It does not become a part of the act. In this case the fact that Smt. Karuna Kumari gave birth to a child only amounts to evidence of the fact that she had legitimate or illegitimate sexual relationship with a man. It may be a circumstance to support the other evidence of a bigamous marriage if it exists. The birth of this child cannot be considered a consequence within the meaning of Section 179 Cr. P. C.

10. I have mentioned above that there is a siring of decisions of various High Courts in support of the interpretation of Section 179 Cr. P. C. which I have made above. I need only cite two decisions of our own High Court. These decisions are Kashi Ram Mehta v. Emperor : AIR1934All499 . The learned Judges observed at page 503:

'If therefore the act done and the consequence which has ensued are to be taken as together amounting to the offence, the commission of which is complained against, then it necessarily follows that the consequence must be a necessary ingredient of the offence in order that Section 179 Cr. P. C. be applicable. If the offence is complete in itself by reason of the act having been done and the consequence is a mere result of it which was not essential for the completion of the offence, then Section 179 would not be applicable. The illustrations to the section also make it clear that the consequence contemplated in the section is a consequence which coupled with the act done constitutes the offence. But if the two can be separated and the act itself is sufficient to constitute the offence, it would make the section inapplicable.'

This decision was followed by another decision of this Court reported in Ibarat Husain v. State : AIR1955All363 .

11. The counsel for the complainant relied on a decision quoted in Munir v. Emperor : AIR1926All189 . The view expressed in this decision is not supported by any reasoning and with all respect to the learned Judge who decided this case it is not acceptable to me. I am therefore of the opinion that the order of the Magistrate refecting the prayer of the complainant to summon the Allahabad witnesses was the proper order and the learned Sessions Judge erred when he made observations to the effect that if such a prayer is made again before the Magistrate it should be allowed.

12. I may observe here that the accused in this case can be convicted only if the trial court finds that the bigamous marriage at Lucknow has been established by reliable evidence. It would be open to the complainant to file her complaint at Allahabad if she wants to depend upon the bigamous marriage that was performed at Allahabad. The stay order is vacated and the Magistrate should resume the hearing of the case.


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