1. Bigamous marriage contracted outside the State by a person domiciled within the State — Conviction under Section 5, Bombay Prevention of Hindu Bigamous Marriages Act, 1946. (Para 1 , 14 )
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1959 Supreme(SC) 207
SUPREME COURT OF INDIA
25th November, 1959
B.P. SINHA, C.J.I., P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.C. DAS GUPTA AND J.C. SHAH, JJ.
Narumal, Appellant
Versus
State of Bombay, Respondent.
Criminal Appeal No. 143 of 1955.
Advocates appeared
M/s. Frank Anthony, Udai Pratap Singh and P. C. Agarwala, Advocates, for Appellant; Mr. B. Sen, Senior Advocate, (M/s. R. H. Dhebar and T. M. Sen, Advocates, with him), for Respondent.
Advocates:
B.SEN, FRANK ANTHONY, P.C.AGRAWAL, R.H.Dhebar, T.M.SEN, Udaipratap Singh
B.SEN, FRANK ANTHONY, P.C.AGRAWAL, R.H.Dhebar, T.M.SEN, Udaipratap Singh
A non-obstante clause in a special statute specifying the grade of the court competent to try an offence does not override the general rule of territorial jurisdiction under Section 177 of the Code of Criminal Procedure unless a clear legislative intent to depart from that rule is evident.
Headnote:(A) Bombay Prevention of Hindu Bigamous Marriages Act, 1946 - Sections 4(b), 5, 8, and 8A - Code of Criminal Procedure - Section 177 - Jurisdiction of Magistrate - Bigamous marriage contracted outside the State - Whether a non-obstante clause in a special statute conferring jurisdiction on specific magistrates overrides the general rule of territorial jurisdiction under the Code of Criminal Procedure - A non-obstante clause intended to specify the grade of the court competent to try an offence does not necessarily override the general principle that an offence should be tried by a court within whose local limits it was committed (Paras 8, 11).
(B) Rule of Harmonious Construction - When two sections of a statute contain similar non-obstante clauses, they should be construed consistently. If one section is found not to override territorial jurisdiction, the other should be interpreted similarly unless a clear departure is intended (Paras 9, 11).
Facts of the case:
A person domiciled in a State contracted a bigamous marriage in another State. He was prosecuted under a State Act preventing bigamous marriages. The trial magistrate acquitted the accused on the ground of lack of territorial jurisdiction as the marriage occurred outside the State. The High Court reversed this, holding that the special provision in the Act conferred jurisdiction regardless of where the offence was committed.
Findings of Court:
The court found that the special provision in the Act was intended to modify the grade of the court (allowing First Class Magistrates to try cases otherwise triable by a Court of Session) rather than to override the territorial jurisdiction rules of the Code of Criminal Procedure.
Issues: Whether the non-obstante clause in Section 8 of the Act overrides Section 177 of the Code of Criminal Procedure, thereby empowering a magistrate to try an offence committed outside their territorial jurisdiction.
Ratio Decidendi: The court held that unless a special statute clearly intends to depart from the general principle of territorial jurisdiction laid down in Section 177 of the Code of Criminal Procedure, such a departure cannot be inferred. The non-obstante clause in Section 8 was meant to specify the forum (grade of magistrate) and not to expand the territorial limits of the court's jurisdiction.
Result: Appeal allowed, the order of conviction and sentence passed against the appellant set aside and he is ordered to be acquitted.
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Table of Contents
2. Vires of Sections 4(b) and 5 as extra-territorial — Whether Section 8 of the Act overrides territorial jurisdiction limits prescribed under Section 177, Code of Criminal Procedure. (Para 2 , 7 , 17 )
3. Section 8 modifies the grade of the trial court but does not override the general territorial jurisdiction rule under Section 177, Code of Criminal Procedure. (Para 8 , 9 , 10 , 11 )
4. A non-obstante clause conferring jurisdiction on specific courts does not automatically override territorial jurisdiction limits under Section 177, Code of Criminal Procedure, unless explicitly intended. (Para 11 )
5. Appeal allowed — Order of conviction and sentence set aside — Appellant acquitted. (Para 12 , 23 )
6. Does the court need to decide the vires of provisions creating offences for acts committed outside the state if the Act is repealed?
No, if the Act has been repealed, deciding the vires of its provisions becomes a matter of merely academic importance and is unnecessary for the effective disposal of the appeal. (Para 3 )
7. Does a provision stating an offence may be tried by a specific magistrate override the territorial jurisdiction rule in Section 177 of the Code of Criminal Procedure?
Not necessarily. Such a provision may only modify the grade of the court competent to try the offence without departing from the general principle that offences are ordinarily tried where they were committed. (Para 8 , 11 )
8. How should similar non-obstante clauses in different sections of the same Act be construed?
Under the rule of harmonious construction, identical non-obstante clauses in related sections should ordinarily bear the same meaning and serve a similar purpose unless a clear departure is intended. (Para 11 )
Judgment
GAJENDRAGAKDKAR, J. : This criminal appeal has been filed with a certificate granted by the Bombay High Court under Art. 134(1) (c) of the Constitution, and it challenges the validity and correctness of the order passed by the said High Court convicting the appellant Narumal Holaram Sindhi under S. 5 of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 (Act XXV of 1946) hereinafter called the Act) and sentencing him to suffer rigorous imprisonment for six months. The prosecution case against the appellant was that on September 9, 1953, he had contracted a second marriage at Khandwa in Madhya Pradesh with one Vishna Devi though he had his first wife living whom he had not divorced and thus rendered himself liable to be punished under S. 5 of the Act. Along with him his second wife Vishna Devi was also charged with having committed an offence under S. 6 of the Act. The case against both of them was tried by the Judicial Magistrate, First-Class, Second Court, Nasik. The learned magistrate held that the appellant had contracted a bigamous marriage which was void under S. 4(b) of the Act and that his second wife had abetted the solemnisation of the said marriage; in other words, he found that the appellant and his second wife had committed the offences under Ss. 5 and 6 of the Act respectively. However, he upheld the plea raised by the appellant that he had no jurisdiction to try the offence; that is why the appellant and his second wife were acquitted under S. 258(1) of the Code of Criminal Procedure. The order of acquittal passed in favour of the appellant was challenged by the State of Bombay by an appeal before the High Court. The High Court has reversed the conclusion of the magistrate on the question of jurisdiction and following its decision in Radhabai Mohandas v. State of Bombay, ILR (1955) Bom 1039 it has held that the trial magistrate was competent to try the case against the appellant. On the merits it has confirmed the finding recorded by the magistrate and convicted the appellant under S. 5 of the Act. Thereupon the appellant applied for and obtained a certificate from the High Court, and with the said certificate he has come to this Court.
2. On behalf of the appellant Mr. Frank Anthony has raised two questions for our decision. He contends that S. 4(b) as well as S. 5 of the Act are ultra vires; alternatively he argues that even if the said Sections are valid, the High Court was in error in holding that the trial magistrate had jurisdiction to try the case. It appears that both these questions had been considered by the High Court in the case of Radhabai Mohandas, ILR (1955) Bom 1039, in which it has been held that it was competent to the Provincial Legislature to enact Ss. 4(b) and 5 of the Act and that the result of S. 8 of the Act was to confer jurisdiction on the trial magistrate to try the case. Subsequently the point about the vires of Ss. 4(b) and 5 which was decided in that case was referred to a Full Bench of the High Court in the case of The State v. Narayandas Mangilal Dayame , ILR (1957) Bom 880 and the full Bench has reversed the decision in the case of Radhabai Mohandas, ILR (1955) Bom 1039 and has held that S. 4(b) of the Act was ultra vires and so the penal provisions of S. 5 did not operate in regard to marriages contracted outside the State. Mr. Anthony has naturally relied on this Full Bench decision in support of his first contention.
3. The contention about the vires of the relevant provisions of the Act undoubtedly raises an important question about the competence of the State Legislature to enact provisions which are characterised by the appellant as extra-territorial and as such outside the competence of the Legislature. We have, however, come to the conclusion that it is not necessary to decide this point in the present appeal. It is clear that after the passing of the Hindu Marriage Act the Act in question has been repealed; and the decision about the vires of two of its pr
