HARNARAYAN BHIKAMCHAND Vs. GOVINDRAM AGYARAM

JUDGEMENT

(1.) A complaint was lodged against the three applicants under Sections 3, 5 and 6, Child Marriage Restraint Act. The marriage in question was celebrated on 21st June 1938 and the complaint was lodged on 17th June 1939, that is four days before the expiry of one year from the date of the solemnization of the marriage. As the marriage was performed in the Indian State of Dewas a certificate of the Political Agent was required under the proviso to Section 188, Criminal P.C. This certificate was not secured until 13th October 1939. It was applied for and received after objection had been raised by the accused on the question of jurisdiction. The lower Court accepted the certificate and held that the case should go on and that the burden of proof lay on the accused to show that they are not British subjects. This last point is the third ground now taken in revision, but it is not pressed in argument. The presumption certainly was that the accused are British subjects, and as the fact of their birth is within their special knowledge it was for them to rebut this presumption.

(2.) THE difficulty in this case arises out of the different wording of Section 188, Criminal P.C., and Section 9, Child Marriage Restraint Act. According to Section 9 no Court shall take cognizance of any offence under this Act save upon complaint made within one year of the solemnization of the marriage in respect of which the offence is alleged to have been committed.

(3.) THE point then is this: Can the Magistrate take cognizance under Section 9, Child Marriage Restraint Act, before this certificate is obtained under Section 188, Criminal P.C., or in other words is the taking of cognizance an action which is prior to and independent of the enquiry into the charge so that the Court may have jurisdiction to take cognizance, although it has no jurisdiction to enquire into the charge ?