Mt. Bhagwati and Others vs Emperor

Bucknill, J.—(After stating the facts, as set out above):--It is not clear from the Committing Magistrate''s order exactly what part Bhagwati''s mother took with regard to the alleged abetment of the offence of bigamy with which Bhagwati and Lachmi Narain are substantively charged; nor is it in the least clear what parts Lachmi Narain''s father or Bhagwati''s uncle and grandfather took in abetting the offence, The learned Counsel who has appeared for the applicants here, stressed the distinction which must be drawn between the first applicant, her second husband and the third applicant on the one part and the rest of the applicants who were charged with abetting the offence of bigamy. So far as can be seen from the committing order, the only charge which has been made against the first and third applicants is in effect that of the bigamous marriage outside the jurisdiction, not only of the Magistrate at Buxar and the Sessions Judge of Arrah, but also of this Province. With regard to the abetment, it is not clear, as I have said, where it is alleged it took place; but I can see nothing in the order which, possibly, with the exception of the case of Bhagwati''s mother, could be taken to show that the abetment alleged against. Bhagwati''s grandfather and uncle took place other than within the jurisdiction of our local provincial Courts.

With regard to the father of Lachmi Narain (i.e., of Bhagwati''s second husband) I can see nothing in the committing order which indicates where his abetment is alleged to have taken place; and I can only imagine that such abetment is presumed to have taken place at the locality where his son was married to Bhagwati. The commitment order is indeed extremely unilluminating and inexhaustive.

The question of what jurisdiction over these different applicants was held by the Magistrate of Buxar and by the Sessions Judge of Arrah was not apparently raised before the Committing Magistrate but was only brought up when the matter came up before the Sessions Judge: but a point of jurisdiction can be raised at any stage. Here, it is not a point which can be dismissed without very careful consideration. In the Criminal Procedure Code it will be observed that Section 531 points out:

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

It is common ground that an order of committal to the Sessions Court is an order under this section. It is not, however, at all clear that the provisions of this section contemplate a case in which there has been an order by a Court which had no territorial jurisdiction at all; such as in a case in which jurisdiction could only properly have been exercised by some Court outside the territorial limits of the jurisdiction of a Provincial High Court. There is, however, nothing in the section itself which limits in any way its operation. But u/s 177 of the Criminal Procedure Code it will be observed that it is laid down that:

Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed;

and by Section 179 it is further laid down that:

When a person is accused of the commission of any offence by reason of anything which has been done and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.

by Section 180 which reads:

When an act is an offence by reason of its relation to any other act, which is also an offence, or which would be an offence if the doer were capable of committing an offence, a charge of the first mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.

It is, in Illustration (a) pointed out that

A charge of abetment may be inquired into or tried either by the Court within the local limits of whose jurisdiction the abetment was committed, or by the Court within the local limits of whose jurisdiction the offence abetted was committed.

Now, as I have said already, the position here, as shown in the--somewhat un-satisfactory--committal order, with regard to the two persons who are said to have been the actual contracting parties in the bigamous alliance, indicates an offence committed outside the borders of this Province. There arises, therefore, with regard to them little doubt that the ''Court of the Sessions Judge at Arrah has no jurisdiction to try them for an offence committed at Nilphamari in Bengal.

With regard to the abettors, the committal order leaves one in the dark as to the alleged venue of the abetment. The abetment, however, of the father of Bhagwati''s second husband (Lachmi Narain) does not appear, on the face of the committal order, to have taken place within the limits of the jurisdiction of the Sessions Court of Arrah: though he is said to have a house at Jamshedpur in another district of this Province. The question arises then, as to what should be the procedure which should be adopted by this Court? There are authorities which seem to indicate that, in certain cases, a transfer to a Court which undoubtedly has jurisdiction is proper, where a committal order has been made by a Court which has no jurisdiction. But, where extra provincial jurisdiction is concerned, I take it that this Court has no power to order such a transfer to the jurisdiction of a Court in another Province: though it might suggest through a proper channel that action might be taken by an appropriate tribunal in another Province where jurisdiction over the matter in question seemed to lie: and, therefore, no question of transfer can well arise in this case. On the other hand, it has been suggested that, possibly, it would be best not to interfere with the committal order but simply to inform the Sessions Judge that he has no power to try the substantive offence with which the first and third applicants are charged; leaving the complainant to take such steps as he may be advised to take in the proper Court; wherever that may be.

The third alternative in this case is to quash the committal order so far as it relates to those persons whose offence, if any, seem clearly, on the face of the committal order, not to have occurred within the limits of the jurisdiction of this Province. Now those persons to whom this last alternative applies are clearly Mussammat Bhagwati, the woman who is said to have bigamously married Lachmi Narain and Lachmi Narain himself. The offence committed by those two persons is said to have been committed, if at all, at Nilphamari in Bengal, outside this Province. I am also inclined to think that, on the face of this obscure committal order, the same remarks must also apply to Ram Prasad, the father of Lachmi Narain: for, although in the committal order it states that he has a house at Jamshedpur which is in this Province where Bhagwati and Lachmi Narain are said to have been recently residing, I can find nothing showing, before the offence was committed, that any abetment by Ram Prasad took place in this Province. In my view therefore, the committal order with regard to these three persons should be set aside and quashed, leaving it to the complainant to take such steps as he may be advised to take in a Court which has proper jurisdiction. With regard to the other three applicants, namely, (No. 2) Mussammat Ramdasi, the mother of Bhagwati; (No. 5) Lachman Ram her grandfather and (No. 6) Raghunath Ram her uncle: here, again there is nothing to indicate in the committal order, except with regard to Mussammat Ramdasi, whether the abetment of the offence of bigamy took place other than inside this Province. It is probable that with regard to the mother, if there was by her any abetment of the offence it took place both in and outside this Province. With regard to Bhagwati''s grandfather and uncle, I can see nothing in the committal order which indicates that they ever left this Province although there may be something in evidence which we have not seen which shows to the contrary effect. With regard to these three persons, the committal order must stand.

The result is, that with regard, to the first, third and fourth applicants, the committal order will be quashed and with regard to the second, fifth and sixth, the committal order will be maintained.

I think that I ought, with regret to say that in this case the commitment order was not well drawn up, conveyed insufficient information and shows signs either of haste or lack of what is requisite in such a record.

Adami, J.

I agree.

Committal order quashed in some cases.