Nanhak Lal vs Baijnath Agarwala

Wort, J.—This rule was directed against a decision of the District Magistrate of Patna in a prosecution under Act 19 of 1929, generally known as the Sarda Act. The matter has been before this Court on a previous occasion. The learned Chief Justice directed the Court below to consider an aspect of the case which was dealt with by the judgment of the learned Chief Justice. The contention now is that the District Magistrate has wrongly decided that it was unnecessary to go into the question of the age of the girl. From one view of the matter the decision of the learned Magistrate could not be questioned. That aspect of the case depends upon the proper construction to be placed upon Ss. 5 and 6 of the Act. The Magistrate in the Court below went into the question of whether the boy was under 18 years of age or not; and having decided that the evidence of the prosecution was unsatisfactory on this point he came to the conclusion that no conviction could be recorded. It is obvious that under S. 6 of the Act the accused was answerable only in the case of his own son or daughter being under the prescribed age.

But it is now contended on behalf of the petitioner that although the construction which the Magistrate appears to have placed upon S. 6 which in my judgment was right, is the correct one, the learned Magistrate has not considered the other aspect of the case, that being, that although it has not been established that the son of the accused was under 18 years of age he may be still guilty of abetting an offence under S. 6 if the other party to the marriage was under She prescribed age. There can be no doubt that although the Act of 1929 makes no mention of abetting yet under the provisions of the I.P.C. it is possible for there to be a prosecution for abetting an offence although the accused is not the father of one of the parties who is under age so long as the other party is below the prescribed age in other words if the Magistrate in the Court below was not satisfied with the prosecution case as regards the age of the son of the accused, yet it be were satisfied that the girl was under 14 years of age, the accused would be guilty of abetting an offence under the Sarda Act. That is the view which the Magistrate has not considered and in order to come to a conclusion one way or the other with regard to that matter, it would be necessary for him to go into the question which he has declined to consider in this case, namely the age of the daughter. The Magistrate has stated that the evidence of the prosecution does not satisfy him that the boy was under 18 years of age.

It is of course obvious that the onus was on the prosecution to establish the fact that an offence has been committed (and I pause hero to state that I am now dealing with that branch of the case which in some of its aspects has already been considered, namely whether the accused who is the father of his son, one of the parties to the marriage, is guilty of an offence as the principal) under S. 6. To revert to what I was saying a moment ago it is obvious that the onus is on the prosecution to establish that an offence has been committed, but that does not mean that if there is evidence which supports the prosecution case the Court may disregard it if the evidence adduced by the prosecution does not establish the charge. The Court is bound to consider all the evidence before it and to decide Whether such evidence establishes the case beyond any reasonable doubt.

Now there were, as one would expect in a case of this kind, a number of witnesses who deposed either to matters of their own knowledge or as a result of their observations on the age of the boy. It is this evidence which the Magistrate has characterized as being unsatisfactory but the learned Advocate for the petitioner has pointed out that there was certain evidence which the Court could not disregard and that was evidence in the form of an original register, a copy of which is in the record of this case. That is receivable and is a relevant document under S. 35, Evidence Act. There was no further evidence necessary and the document itself would establish the date of the birth of the boy. It is unnecessary for me to state what the reasons are for accepting this evidence or, to put it more accurately, the reason why the legislature has considered the Register of Births evidence of the fact it is sufficient to state that that is the law.

Now if that were the sole evidence in the case, the Magistrate could hardly fail to come to the conclusion that this boy was born on 1st April 1916 and if that were the case and as the marriage took place on 11th March 1934 the offence would have been established. I repeat that this document is evidence of the fact I have just mentioned and if the defence desire to get rid of its effect and to establish that contrary to the statement in the birth certificate the birth took place on some other date, it would be necessary for them to call evidence to establish that fact. Now they have attempted to do that by calling one of their servants. The Magistrate refers to the servant''s evidence as being evidence that the boy was 19 years of age. That means that the Magistrate has taken the first statement of the witness and disregarded the remainder. I make that observation because if he had not disregarded the remainder, it is impossible to have considered it without coming to some definite conclusion as to what the evidence meant. The servant states that he notified this birth about two days after the event and that would be established by the document itself. The date of the notification is given as 3rd April; the date of the birth is 1st April; and he gave his reason for that as being that they would have been prosecuted if this false statement had not been made; and he goes on to say in his evidence that the birth was notified about 20 or 25 days later. The only meaning that can possibly be given to that expression is that it was notified 20 or 25 days later than the birth; but that is a matter for the Magistrate and he will have to consider it.

Now the learned Magistrate certainly has not considered this aspect of the case. If ha considers the evidence of the servant as vague and unsatisfactory, then the birth certificate stands; and although I do not decide any question of fact, it would appear that an offence has been committed. If on the other hand the learned Magistrate can make out anything of the statement 20 or 25 days later and decide exactly what date the birth was, then the Magistrate would of course come to what would, in the circumstances, be the necessary conclusion. But unless this evidence is accepted, it is quite clear, as I have already said that the birth certificate must stand. There is no other way of dealing with it: it is evidence and conclusive evidence unless disproved by the evidence of this witness, the servant.

Now in those circumstances from the point of view of the first question which I stated in the earlier part of my judgment, it would become necessary to consider the age of the girl. If the learned Magistrate comes to the conclusion that the boy was under 18 at the time of the marriage it may be unnecessary to consider the age of the girl. I looked at the deposition of the witnesses not for the purpose of deciding the question of ago but to judge of the argument of the learned Advocate on behalf of the accused as to the value of that evidence as to the age of the girl, as it was suggested that in any event the evidence of the prosecution did not establish the age of the girl, But for the strong views that I hold with regard to acquittals, I should not have hesitated in this case to discharge this rule if I had been satisfied that the Magistrate could not possibly come to the conclusion that the girl was under 14 years of age. To repeat myself, if I come to the conclusion on the evidence of the prosecution that no Judge or Magistrate could have found that the girl was under 14 years of age, I should have discharged this rule, but the evidence has to be considered. What my conclusion with regard to it would be I cannot say, and I do not propose to say, but in the view that I take of the matter I regret to say that this case will have to go back to the Magistrate to determine this question of fact and such questions of law that would arise from my observations. The rule must there-fore be made absolute. I only wish to say that the learned Advocate has referred me to some well-known authorities laying down the practice of this Court in regard to acquittals. I take a very strong view in regard to that matter and only its the most exceptional cases would I set aside an acquittal. But we have a different state of facts here. It is a case in which the police can take no action under the Act and the legislature has in a sense made the members of the public litigants under it. It would be impossible therefore for me to apply strictly the principles which I would apply in other cases to this case. With these observations I must make the rule absolute as I have said and direct that the Magistrate do hear and determine this case according to law.