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Jwala Prasad and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1934All331
AppellantJwala Prasad and anr.
RespondentEmperor
Excerpt:
- - that section requires that the applicants should have acted in good faith, and the definition of good faith involves due care and attention. this woman medical officer has merely passed an examination of sub-assistant surgeon in are and although she may be qualified to hold charge of the dufferin hospital, id is obvious that she has not qualifications as good as the civil surgeon. if the act intended to prevent a trial being summary that would be stated clearly in the act, and in my opinion it cannot be introduced into the act by the mere provision that the trial is to take place in the court of the district magistrate......farrukhabad, to the effect that the girl was not less then 14 years of age. on the other hand the civil surgeon gave evidence that the girl was about 12 years of age. the court accepted the evidence of the civil surgeon. the father of the girl did not produce any evidence of a birth register to contradict the civil surgeon. there is no doubt therefore that the finding that the girl was under 14 years of age is correct. the argument was that the applicants might plead that they were justified by a mistake of fact under section 79 penal code. that section requires that the applicants should have acted in good faith, and the definition of good faith involves due care and attention. in the present case it appears to me that the applicants should have gone to the civil surgeon in order to.....
Judgment:
ORDER

Bennet, J.

1. This is an application in revision against the conviction of two persons Jwala Prasad and Ram Prasad under the Child Marriage Act, Act 19 of 1929. Jwala Prasad has been convicted under Section 4 for marrying a child, and Ram Prasad has been convicted under Section 5, the sentences being Rs. 200 in the case of Jwala Prasad and Rs. 50 in the case of Ram Prasad. It is admitted that the marriage of Jwala Prasad to this girl took place and that Ram Prasad officiated as a priest. The defence put forward is that the applicants were misled by a certificate which was granted by a woman medical officer in charge of the Dufferin Hospital Farrukhabad, to the effect that the girl was not less then 14 years of age. On the other hand the Civil Surgeon gave evidence that the girl was about 12 years of age. The Court accepted the evidence of the Civil Surgeon. The father of the girl did not produce any evidence of a birth register to contradict the Civil Surgeon. There is no doubt therefore that the finding that the girl was under 14 years of age is correct. The argument was that the applicants might plead that they were justified by a mistake of fact under Section 79 Penal Code. That section requires that the applicants should have acted in good faith, and the definition of good faith involves due care and attention. In the present case it appears to me that the applicants should have gone to the Civil Surgeon in order to obtain a certificate and should not have relied on the certificate of the woman medical officer. This woman medical officer has merely passed an examination of sub-assistant surgeon in Are and although she may be qualified to hold charge of the Dufferin Hospital, id is obvious that she has not qualifications as good as the Civil Surgeon. In her cross-examination she stated that she differed from recognised authorities such as Powell and Lyon on the question of what signs were to be used for determining age. The existence of the certificate is a matter which may be taken into account, in my opinion, in considering whether imprisonment or fine should be ordered. In the present case the Magistrate has only ordered fine and has not ordered imprisonment.

2. A further point taken was that the trial ought not to have been summary. There appear to be two mistakes in this argument, one of fact and one of law. As a matter of fact the trial does not appear to have been summary. There was no doubt a summary form which was used by the Magistrate for the recording of some evidence, but then the Magistrate has recorded the evidence again at length and not on a summary form. The trial therefore was not at all summary as the evidence of each witness was recorded separately in the ordinary way. But on the point of law it appears to me that a trial under this Act may be summary, as it is permitted by Section 260(1)(a), Criminal P.C., as the offences charged come under the heading 'Offences not punishable with imprisonment for a term exceeding six months.' Section 4(1)(o), Criminal P.C., states that 'offence means any act or omission made punishable by any law for the time being in force.' Therefore an offence under any law such as the Act 19 of 1929 will come under this provision in Section 260(1)(a), Criminal P.C. Learned Counsel argued that in this Act 19 of 1929 Section 8 lays down.

No Court other then that of a Presidency Magistrate or a District Magistrate shall take cognizance of or try any offence under this Act.

2. He argued that because of this provision the further words are to be read into the provision 'and such trial shall not be summary.' I see no justification for this argument. If the Act intended to prevent a trial being summary that would be stated clearly in the Act, and in my opinion it cannot be introduced into the Act by the mere provision that the trial is to take place in the court of the District Magistrate. As already stated, I consider that the sentences are not severe. The application in revision is dismissed.


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