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The Superintendent and Remembrancer of Legal Affairs Vs. Radha Kissen Agarwalla and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in163Ind.Cas.147
AppellantThe Superintendent and Remembrancer of Legal Affairs
RespondentRadha Kissen Agarwalla and ors.
Cases ReferredRex v. Esop
Excerpt:
child marriage restraint act (xix of 1919), sections 5, 6(1) - offence under act committed in british india, by native indian subject--accused, if guilty. - .....does not apply. this is a personal matter, and i do not consider that the act can be applied to subjects of native states. the case is dismissed. accused acquitted, return the deposit.4. there is no doubt that the deputy commissioner misdirected himself in law as to the effect of this statute. it is a penal statute and under its provisions whoever offends against those provisions commits a crime. such a statute is of course applicable to all such crimes committed in british india. the fact that the person a accused are foreigners makes no difference. if any authority is wanted for this proposition it will be found in the case of rex v. esop 7 car. & p. 456, where it was stated thatit is no defence on behalf of a foreigner charged in england with a crime committed there, that he did.....
Judgment:

Lort-Williams, J.

1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against an order of the Deputy Commissionar of Sib-sagar dismissing a case brought against the respondents under Sections 5 and 6(1) of the Child Marriage Restraint Act of 1929 and acquitting them.

2. The case for the prosecution was that the accused who are residents of Golaghat, a Sub-Division in Assam, celebrated the marriage of the son of the first respondent a boy of about 15 years of age, with the daughter of second respondent, a girl aged about 11 years. The respondents admitted that the age of the bridegroom was below 18, and that the age of the bride was below 14. They stated that they were compelled to celebrate the marriage according to the custom of their society. They further stated that the law under which they had been summoned was strange to them and was not followed in their country. They also prayed for mercy.

3. The Magistrate in his order dated September 3, 1934, says that the accused

admit the offence. Plead that they are subjects of a Native State where this law does not apply. This is a personal matter, and I do not consider that the Act can be applied to subjects of Native States. The case is dismissed. Accused acquitted, Return the deposit.

4. There is no doubt that the Deputy Commissioner misdirected himself in law as to the effect of this statute. It is a penal statute and under its provisions whoever offends against those provisions commits a crime. Such a statute is of course applicable to all such crimes committed in British India. The fact that the person a accused are foreigners makes no difference. If any authority is wanted for this proposition it will be found in the case of Rex v. Esop 7 Car. & P. 456, where it was stated that

It is no defence on behalf of a foreigner charged in England with a crime committed there, that he did not know he was doing wrong, the act not being an offence in his own country. But though it is not a defence in law, yet it is a matter to be considered in mitigation of punishment.

5. The result is that this appeal must be allowed and the order of the Deputy Commissioner set aside. In view of the fact that both the respondents admitted the offence charged against them, it is not necessary to send the case back for retrial. As it appears that they are subjects of a Native State and it may be true that this law, as they allege, was strange to them and not followed in their own country, it is not necessary to punish them with imprisonment. But the sentence must be sufficient to bring home to offenders that this statute must be obeyed. Each of the accused is sentenced to pay a fine of Rs. 200, and in default of payment, to 8 days' simple imprisonment.

Jack, J.

6. I agree.


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