BAI NIRMALABAI REVADAS Vs. REVADAS BHIKHABHAI

JUDGEMENT

(1.) THE complainant Nirmalabai filed a complaint --being Case No. 12/s/53-- in the Court of the Presidency Magistrate, 17th Court, Mazagaon, Bombay, against Her husband Rewadas Bhikabhai for an offence under Section 5, Bombay Prevention of Hindu Bigamous Marriages Act, No. 25 of 1946. It was the case of the complainant that even though the respondent was married to her, he contracted a bigamous marriage on 19th January 1953, at Broach with one Champabai and thereby committed an offence under Section 5, Bombay Prevention of Hindu Bigamous Marriages Act, 25 of 1946. The learned Magistrate was of the view that the offence having been committed within the territorial limits of the Magistrate, First Class, Broach, he had no jurisdiction to try the case. The learned Magistrate, therefore, dismissed the complaint. The complainant has come to this Court in revision.

(2.) ON behalf of the complainant reliance was placed upon Section 8 of the Bombay Act 25 of 1946 in support of the contention that even though the offence alleged by the complainant to have been committed by the respondent was committed in the town of Broach, the Presidency Magistrate in the City of Bombay had territorial jurisdiction to try that offence. Section 8 of the Act provides:

(3.) IT was urged that Section 8 of the Act enabled every Presidency Magistrate and every Magistrate of the First Class in the State of Bombay to try any offence under Section 5 of the Act 25 of 1946, whether or not the offence is committed within the limits of his territorial jurisdiction. Power to try offences under Section 5 is undoubtedly conferred upon Presidency Magistrates and the Magistrates of the First Class by Section 8 and that power is conferred 'notwithstanding anything contained in the Code of Criminal Procedure, 1898. ' But in my judgment, Section 8 does not confer jurisdiction upon all Magistrates of the First Class and the Presidency Magistrates irrespective of the extent of their territorial jurisdiction. Section 28, Criminal P. C. provides for the trial of offences under the Indian Penal Code by the High Court or the Court of Session, or by any other Court by which such offence is shown in the eighth column of the second schedule to be triable. Section 29, Criminal P. C. provides for the power of Courts to try offences other than those under the Code. That section prescribes that when an offence under any law other than the Indian Penal Code is made triable by any Court mentioned in that law, such Court shall try the offences, and when no Court is mentioned, such offence is triable by the High Court or the Court mentioned in the last four entries in the eighth column of Schedule II of the Code. An offence under Section 5 of the Act 25 of 1946 is made punishable with imprisonment for 7 years, and in the absence of an express provision to the contrary, it would be triable by the High Court or the Court of Session, Section 8 of the Act, however, makes an express provision to the contrary and provides for trial of offences under Section 5 of the Act by the Courts of the Presidency Magistrate and the Magistrate of the First Class. It was urged that even if the Legislature had provided that offences under Section 5 of the Act shall be triable by Courts designated therein, those Courts would be competent by Section 29 (1), Criminal P. C. to try those offences; and therefore, it was contended that it could not have been the intention of the legislature by the use of the expression 'notwithstanding anything contained in the Code of Criminal Procedure, 1898', merely to provide what was expressly provided by the Code. It is unnecessary in the view I take to enter into a detailed examination of the diverse provisions of the Criminal procedure Code to ascertain what other provisions besides the provisions of Schedule II of the Criminal P. C. , were not to apply to the trial of offences under s. 5 of the Act. section 5 (2), Criminal P. C. provides that: