NILKANTHRAO v. GANGABAI — 1965 DIGILAW 95 (BOM)

ORDER-This application for revision raises a very interesting question regarding the applicability of s. 403, Code of Criminal Procedure. 2. The facts leading to this application are in a brief compass: Petitioner No.1 Nilkanthrao was married to the opponent Gangabai in about the year 1954. Petitioner No.2, who also is named Gangabai, was married to one Digamber in about the year 1960 or so. During the subsistence of these two marriages and while the respective spouses of both these marriages were alive, petitioner No.1 Nilkanthrao married petitioner No.2 Gangabai on June 29, 1962. Digamber, who was the first husband of petitioner No.2 Gangabai filed Criminal Case No. 60 of 1962 against the petitioners Nilkanthrao and Gangabai under s. 494 of the Indian Penal Code, because they had entered into a bigamous marriage while their respective spouses of their previous marriages were alive on the date of their second marriage. The respondent Gangabai, the first wife of the petitioner Nilkanthrao was not a party to that criminal case. This offence of bigamy was compounded by the complainant Digamber on September 25, 1962, with the permission of the trial Court under s. 345 (2), Code of Criminal Procedure. The trial Magistrate who permitted this composition acquitted the petitioners Nilkanthrao and Gangabai of the offence of bigamy under s. 494 of the Indian Penal Code in accordance with s. 345 (6) of the Code of Criminal Procedure. On March 10, 1964-, the respondent Gangabai filed Criminal Case No. 25 of 1964 under s. 494 of the Indian Penal Code against her husband Nilkanthrao and against petitioner No. 2 Gangabai on the ground that they had entered into a bigamous marriage on June 29, 1962, during the life time of their former spouses and while their former marriages were subsisting. The respondent Gangabai implicated petitioners Nos. 3 to 6 also on the ground that they had abetted this offence of bigamy. The petitioners Nilkanthrao and Gangabai applied to the trial Court for dropping the complaint of the respondent Gangabai on the ground that it was barred by s. 403 of the Code of Criminal Procedure because of their previous acquittal of the same offence under s. 345 (6) in Criminal Case No. 60 of 1962. 3. The petitioners Nilkanthrao and Gangabai applied to the trial Court for dropping the complaint of the respondent Gangabai on the ground that it was barred by s. 403 of the Code of Criminal Procedure because of their previous acquittal of the same offence under s. 345 (6) in Criminal Case No. 60 of 1962. 3. The learned trial Magistrate held that there was no composition of the offence with the first wife Gangabai and, therefore, the acquittal of the petitioners by virtue of s. 345 (6) in consequence of a composition with Digamber alone, did not debar the right of the complainant respondent to prosecute the petitioners and, therefore, the complaint ought to proceed. In that view, he rejected the application of the petitioners. While affirming the learned Magistrates order, the learned Sessions Judge, Nanded, came to the conclusion that the same act of marriage between the petitioners Nilkanthrao and Gangabai on June 29. 1962, had resulted into two separate offences of bigamy one in regard to Digamber, the former husband of petitioner No.2, and the other in regard to the respondent Gangabai, the former wife of the petitioner Nilkanthrao, and, therefore, the respondent Gangabai was not precluded from prosecuting the petitioners for the offence of bigamy in relation to her, despite the fact that the offence of bigamy in relation to Digamber had been compounded with Digamber and that order of composition had ended in acquittals under s. 345 (6) of the Code of Criminal Procedure. 4. Mr. R. W. Adik, advocate for the petitioners and Mr. M. A. Rane, advocate for the State were agreed that the acts constituting the offence of bigamy in the previous complaint of Digamber (Criminal Case No. 60 of 1962) and the acts constituting the offence of bigamy in the present case, were identical Mr. R. W. Adik, advocate for the petitioners, submitted that the Courts below were in error in coming to the conclusion that the second marriage between the petitioners Nilkanthrao and Gangabai amounted to two separate offences. R. W. Adik, advocate for the petitioners, submitted that the Courts below were in error in coming to the conclusion that the second marriage between the petitioners Nilkanthrao and Gangabai amounted to two separate offences. According to him, s. 494 of the Indian Penal Code penalises the offence of the second marriage during the subsistence of the first marriage, but only one offence was constituted by such second marriage and there was no question of such second marriage resulting into two separate offences even though s.198 of the Code of Criminal Procedure entitled both Digamber and the respondent Gangabai or either of them to question that second marriage. In his opinion, the provisions of s. 198 authorising more than one person to challenge the offence of bigamy would not have the effect of splitting up the ingredients of the offence or of converting it into two separate offences so as to enable the respondent-complainant to say that the acquittals with respect to that offence in the complaint filed by one of the aggrieved persons, Digamber, did not operate as a bar to the maintainability of a similar complaint by her with regard to the same offence, even though she was not a party to the first complaint which had ended in the acquittals of the petitioners. Mr. M. A. Rane, Assistant Government Pleader, supported the reasoning of the Courts below and contended that the composition of the offence by Digamber with the petitioners did not and could not amount to a composition of the offence by or with the respondent and, therefore, the acquittals under s. 345 (6) in the previous case affected only the offence in regard to Digamber and did not affect the offence so far as it adversely affected her. In his view, Digamber could have only prosecuted the petitioner Gangabai as the principal offender and could not have prosecuted the petitioner Nilkanthrao except as an abettor and, therefore, the acquittal of Gangabai as the principal offender and of Nilkanthrao as an abettor would not bar the trial of Nilkanthrao as the principal offender and of Gangabai as an abettor in the complaint of the respondent Gangabai. In his opinion s. 345 (3) of the Code of Criminal Procedure would also support the reasoning of the Courts below. 5. In his opinion s. 345 (3) of the Code of Criminal Procedure would also support the reasoning of the Courts below. 5. The main question to be decided in the case would be whether the second marriage entered into by the petitioners Nilkanthrao and Gangabai on June 29, 1962, amounted to one offence, or to two separate and distinct offences. Section 494 of the Indian Penal Code is in the following words: "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine". [The exception to this section is not quoted as it is not relevant or necessary for deciding this case.] The wording of this section is in the singular and, therefore, Mr. Rane argued that it only refers to the marriage by a husband or a wife whose wife or husband is living at the time of the second marriage. He further submitted that in the present case both the parties to the second marriage had their previous spouses living at the time of the second marriage and, therefore, both of them could file complaints separately and the same second marriage between both of them will have to be treated as resulting into two separate offences of bigamy; one offence in respect of each of them. In advancing that argument, Mr. Rane was ignoring s.9 of the Indian Penal Code, which says: “Unless the contrary appears from the context, words importing the singular number include the plural number and words importing the plural number include the singular number." In view of these provisions, Mr. Rane was not right in assuming that this section was, at no time, intended to contemplate oases where both the parties to the second marriage had their previous spouses living on the date of the second marriage. The singular expression of this section would necessarily cover both the parties also, if the facts of the case so required. Rane was not right in assuming that this section was, at no time, intended to contemplate oases where both the parties to the second marriage had their previous spouses living on the date of the second marriage. The singular expression of this section would necessarily cover both the parties also, if the facts of the case so required. Ordinarily, it is only one of the parties to the second marriage who has his or her former spouse living on the date of the second marriage and it is rare to find that both the parties to the second marriage have their former spouses living on the date of the second marriage, as had happened in the present case. It would be noticed that most of the sections in the Indian Penal Code are worded in the singular number even when the offence concerned may require more than one person to commit them. Take for instance, the offence of dacoity under s. 395 of the Indian Penal Code, wherein also the singular number is used. The mere fact, therefore, that the singular expression has been used in the section would be no ground to contend that the same marriage and the same facts giving rise to that marriage would, by themselves, result into more than one distinct offence. What s. 494 penalises is the fact of the second marriage which is void on the ground that one or both of the parties to the second marriage has or have his or their former spouses living on the date of the second marriage. 6. In order to explain his point of view, Mr. Rane classified bigamous marriages into three categories: (1) where husband H has a living wife W when he re-marries a second wife W -1; (2) where the wife W has her husband H living when she marries the second husband H-l; and (3) where both the husband H and wife W have their previous spouses alive at the time of their second marriage with each other. According to Mr. According to Mr. Rane, the husband H in the first case and the wife W in the second case would be principal offenders when he or she has personal knowledge that his wife, or her husband, from the previous marriage is alive, while the other party to the marriage would not be guilty of any offence, if she or he does not know of the existence of the previous spouse of the other and would only be guilty of abetment, if she or he knew of the existence of the previous spouse of the other. In the third case, both the husband H and wife W would be principal offenders in so far as they marry again with the knowledge of the existence of their own previous spouses. Mr. Rane further submitted that in each of the three cases, there will be as many offences arising out of the second marriage as would be the number of the principal offenders and, therefore, there will be only one offence each in the first two oases, but two separate offences in the third case. 7. In making the above submission, Mr. Rane was assuming that the number of offences arising out of the second marriage depends, not on the marriage itself, but upon the person or persons, who would be liable as principal offenders or as abettors. His view seems to be that when different sets of facts, as in the three oases, have to be proved in the same trial for establishing that both the parties to the marriage are principal offenders, the necessary inference must be that the resulting offences are as many as are the principal offenders, or at any rate, are more than one. On giving a very anxious consideration to the submissions of Mr. Rane, I have not been able to appreciate or accept that contention. A perusal of s.494 of the Indian Penal Code would clearly show that the law makes the factum of the second marriage, effected under certain circumstances, an offence punishable under that section. That offence depends on the proof of the second marriage during the subsistence of the first marriage and does not depend upon the number of persons who would be liable as principal offenders or upon the circumstances of the particular case which give rise to this offence of second marriage. That offence depends on the proof of the second marriage during the subsistence of the first marriage and does not depend upon the number of persons who would be liable as principal offenders or upon the circumstances of the particular case which give rise to this offence of second marriage. There is nothing in the wording of s. 494, Indian Penal Code, which would support the view of Mr. Rane that the number of offences under s. 494 depends on the number of the principal offenders or on the circumstances of the parties to the second marriage, particularly vis-a-vis the existence of the previous spouses of both. 8. Mr. Rane again referred to the three categories into which bigamous marriages could fall as explained by him earlier. He submitted that there would be only one offence in the first two of the three categories wherein only one additional circumstance would have to be proved for invalidating the second marriage, namely, that the previous spouse of one of the parties to the marriage was alive. He, however, contended that in the third category it would also have to be proved that the previous spouses of both the parties to the second marriage were alive and because of that special feature requiring proof of more than one additional circumstance the resulting offences ought to be two and not one. His argument means that the number of the eventual offences depends not on the fact constituting the offences, namely, the second marriage in case of offences of bigamy, but on the attendant circumstances at the time of the second marriage which is penalised by s. 494 and, therefore, the plurality of these circumstances has the effect of multiplying the number of the resulting offence. It is indeed difficult to accept this argument without doing violence to the plain language of s. 494. As adumbrated, the offence arises as soon as the second marriage which is invalid by virtue of the existence of the previous spouse of one or more of the parties is performed. The circumstances attending upon that second marriage, namely, whether the spouse of one of the parties or the spouses of both the parties are alive, are irrelevant for the purpose of the happening of the event of second marriage which results in the offence of bigamy. 9. I would illustrate my point by an example. The circumstances attending upon that second marriage, namely, whether the spouse of one of the parties or the spouses of both the parties are alive, are irrelevant for the purpose of the happening of the event of second marriage which results in the offence of bigamy. 9. I would illustrate my point by an example. An offence of theft is punishable under s. 379, Indian Penal Code, and it amounts to robbery under s. 390 when the offender in committing the theft or carrying away or attempting to carry away the stolen property voluntarily causes death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. However, when five or more persons conjointly commit or attempt to commit a robbery that same offence of theft coupled with the use of force and causing hurt etc. amounts to an offence of dacoity under s.391. Thus, for proving an offence of dacoity under s. 395, Indian penal Code, the prosecution have to prove in addition to the factum of theft, the fact that death or hurt or wrongful restraint or instant fear of death or of hurt or of wrongful restraint are caused and all that is done by five or more persons acting together. Thus, several additional circumstances are required to be proved in a case of dacoity which is an aggravated form of theft and in which each one of the persons involved is a principal offender. Despite the fact that several additional circumstances are required to be proved and more than one person are principal offenders the offence of dacoity, as such, remains only one and the number of the offences is not affected or augmented by the number of additional circumstances to be proved or by the number of the principal offenders involved in the case. 10. I would take another example. An offence of cheating under s. 415, Indian Penal Code, is committed by deceiving any person and by fraudulently or dishonestly inducing the person so deceived to deliver any property. Deception and fraudulent or dishonest inducement for the purpose of securing delivery of property can be committed in several ways. 10. I would take another example. An offence of cheating under s. 415, Indian Penal Code, is committed by deceiving any person and by fraudulently or dishonestly inducing the person so deceived to deliver any property. Deception and fraudulent or dishonest inducement for the purpose of securing delivery of property can be committed in several ways. It would be conceivable that in a given case a person who is induced may be deceived in more ways than one and may be fraudulently or dishonestly induced any several means to deliver property and yet the ultimate result would be only of deceitful obtaining of delivery of property. Despite the fact that the case involves several circumstances of deception and of fraudulent or dishonest inducement, the ultimate offence of cheating by inducing the person to deliver property would only be one and the number of the offences would not increase or would not be multiplied merely because more than one means of deception and of fraudulent or dishonest inducement are used by the accused. I am, therefore, not prepared to agree with Mr. Rane that the number of the eventual offences would depend on the circumstances required to be proved in the case or on the number of the persons who could be charged as principal offenders. 11. The next submission of Mr. Rane was based on ss.198 and 345 (2) of the Code of Criminal Procedure. He pointed out that under s. 198 only the person aggrieved by the marital offence, namely, the husband or the wife, whose former spouse has entered into a second marriage can file a complaint for bigamy under s. 494, Indian Penal Code. He also pointed out that under s. 345 (2), Code of Criminal Procedure, the husband or the wife of the person marrying again during the life time of his or her former spouse can compound the offence of bigamy with the permission of the Court. In view of these two sections, Mr. He also pointed out that under s. 345 (2), Code of Criminal Procedure, the husband or the wife of the person marrying again during the life time of his or her former spouse can compound the offence of bigamy with the permission of the Court. In view of these two sections, Mr. Rane contended that in the present case where both the parties to the second marriage had their previous spouses living, both Digamber the former husband of petitioner No. 2 Gangabai and the respondent Gangabai the former wife of the petitioner Nilkanthrao were entitled to file their independent complaints under s. 494, Indian Penal Code, and the mere fact that Digamber compounded the offence of bigamy with the petitioners in the previous case did not have the effect of wiping out the right of the respondent Gangabai, who also was aggrieved by the second marriage, to file her own complaint under s. 494 and, therefore, her right to file a complaint being alive, the acquittal in, the previous complaint under s. 345 (6) would not prejudicially affect her in any manner. The argument appears plausible but will not stand scrutiny. It assumes that the second marriage results into two separate offences and, therefore, the acquittal of the offence with regard to the former husband Digamber does not affect the maintainability of the complaint of the respondent Gangabai. I have shown at considerable length that there is no basis for the assumption that the second marriage would result in two separate offences so as to entitle the respondent to proceed with her complaint despite the previous acquittal in Digambers complaint under s. 345 (6). If only one offence has resulted from the second marriage, there could be no question of a second prosecution with respect to that same offence after the offending parties were acquitted under s. 345 (6) in the previous complaint. This argument of Mr. Rane is based on a fallacy that the right to prosecute is equivalent to the subsistence of the offence itself. Section 198, as also s. 345 (2) of the Code of Criminal Procedure, no doubt, gives a right to both Digamber and the respondent Gangabai to prosecute petitioners Nos. 1 and 2 under s.494 and to compound the offence but that right is to be exercised only with respect to one offence of bigamy and not two offences. Section 198, as also s. 345 (2) of the Code of Criminal Procedure, no doubt, gives a right to both Digamber and the respondent Gangabai to prosecute petitioners Nos. 1 and 2 under s.494 and to compound the offence but that right is to be exercised only with respect to one offence of bigamy and not two offences. The offence of bigamy was dissolved with the acquittal recorded under s. 345 (6) in the previous complaint of Digamber. The effect of that acquittal would, therefore, by implication, be that even the right of the respondent Gangabai to prosecute petitioners Nos. 1 and 2 would come to an end with the acquittal recorded in the previous case. I may put it differently by saying that the right given to the respondent Gangabai by s. 198 may remain unaffected and even so, she will not be in a position to prosecute her complaint under s. 494 for the simple reason that the very offence of bigamy under s. 494 has come to an end with the acquittal recorded under s. 345 (6). 12. I would illustrate my point of view by an example. Supposing A and B have kept their separate property worth less than Rs. 250 in all, in a common trunk and that trunk is eventually stolen by C and D acting together. A prosecutes C and D for the offence of theft under s. 379, Indian Penal Code and ultimately compounds the offence of theft the permission of the Court under s. 345 (2). The right of B to file a complaint for the theft of his own separate property in that trunk remained unaffected, but he would Dot be permitted to prosecute C and D once again for the simple reason that the offence of theft by C and D, which was one, has already come to an end by the acquittal recorded in the complaint filed by A. It will be interesting to consider another illustration which was placed before me in the course of the arguments. Supposing a Hindu had married five times before the year 1947 when marrying for a second time during the life time of the first wife was made an offence in this State. Let us further suppose that all his five wives are living in the year 1963 and he re-marries again in the year 1963. Supposing a Hindu had married five times before the year 1947 when marrying for a second time during the life time of the first wife was made an offence in this State. Let us further suppose that all his five wives are living in the year 1963 and he re-marries again in the year 1963. Under s. 198, Code of Criminal Procedure, all the five previous wives of that person would be entitled to prosecute their husband under s. 494: because of his fresh marriage in the year 1963. If the reasoning of Mr. Rane is accepted, this marriage performed by that person in the year 1963 should result into five separate offences for which the husband and the new wife would be in jeopardy of five separate trials at the instance of the five former wives. He would also stand in the danger of being convicted and sentenced separately, five times, for that same offence of performing the bigamous marriage. That would obviously be an impossible situation and even Mr. Rane was not prepared to countenance it. It would be clear, therefore, that the number of persons aggrieved would not be a proper criterion for testing what is the number of resulting offences from the bigamous marriage. 13. Mr. Rane did not dispute that the test of considering the number of aggrieved persons for determining the number of offences would not be proper in all cases and he did not want to say that it should be the test in all cases. He, however, urged that that test should be applied by way of an exception to the persent case only. He was contending that under the peculiar circumstances of the case, Digamber would be aggrieved only with respect to the petitioner Gangabai and not with respect to the petitioner Nilkanthrao and, therefore, he could only have asked for a punishment of the petitioner Gangabai as the principal offender and for the punishment of Nilkanthrao as an abettor and in the same manner the respondent Gangabai could only have asked for punishment of the petitioner Nikanthrao as the principal offender and of the petitioner Gangabai as an abettor. In making that submission, Mr. In making that submission, Mr. Rane was ignoring one important fact that the second marriage does not take place without the other party joining it and there was no point in saying that Digamber was aggrieved only as against his former wife Gangabai, petitioner No.2, or that the respondent Gangabai was aggrieved only as against the petitioner Nilkanthrao. Neither of them could have re-married without the active help of the other. Mr. Adik pointed out in this connection that even in the complaint in Criminal Case No. 60 of 1962 Digamber had specifically mentioned the fact that the respondent Gangabai who was the wife of Nilkanthrao was alive on that date and the previous marriage of Nilkanthrao also was subsisting. With that averment, it would have been open to the Magistrate to find both the petitioners Nilkanthrao and Gangabai guilty as principal offenders and to punish them both accordingly. Mr. Rane was wrong in assuming that in spite of the aforesaid averment in the previous complaint, Digamber could not have sought relief against the petitioner Gangabai or that the respondent Gangabai could not seek relief against the petitioner Nilkanthrao who was equally responsible for bringing about the objectionable marriage. 14. There was one other aspect of the stand taken by Mr. Rane. His argument would mean that even if the petitioners were to have been convicted and sentenced under s. 494, Indian Penal Code, in the previous complaint of Digamber, they would again have been liable to be convicted and sentenced for that same offence in the present complaint of the respondent Gangabai. That would be in violation of the guarantee of fundamental right given in art. 20 (2) of the Constitution, which incorporates in its scope the plea of autrefois convict" as known to the British Jurisprudence, or the plea of "double jeopardy" as known to the American Constitution. That would create an impossible situation, as I have already pointed out while illustrating the hypothetical case of a subsequent bigamous marriage by a Hindu, who has five previous wives living. It can never be the intention of any law that persons should be tried and punished more than once for the same offence. 15. Section 345 (3), Code of Criminal Procedure, authorises composition of the abetment of or au attempt to commit offences in oases where the completed offences themselves are compoundable. I have already shown that petitioners Nos. It can never be the intention of any law that persons should be tried and punished more than once for the same offence. 15. Section 345 (3), Code of Criminal Procedure, authorises composition of the abetment of or au attempt to commit offences in oases where the completed offences themselves are compoundable. I have already shown that petitioners Nos. 1 and 2 would have been liable as principal offenders and not as abettors with regard to their offence of bigamy during the life time of the previous spouses of both of them and, therefore, c1. (3) of s. 345, Code of Criminal Procedure, cannot give any additional or special rights to the aggrieved persons as against these petitioners on the basis that they are mere abettors. In any case, both of them could not be abettors and at least one of them would have to be the principal offender. Even if such a special right, as contended by Mr. Rane, were to be postulated, the respondent Gangabai would not, by virtue of s. 198, Code of Criminal Procedure, be in a position to proceed with her complaint with regard to an offence which has come to an end by the prior acquittals under s. 345(6). Mr. Rane was further contending that the wording of c1. (2) of s. 345, Code of Criminal Procedure, like the wording of s. 494, Indian Penal Code, was in the singular number and, therefore, several offences were postulated with regard to the persons who were entitled to compound the offence. I have already dealt with the question of the phraseology of s. 494 being in the singular number. Without repeating those observations, I would only say that the wording of s. 345(2) in the singular number cannot result in multiplying or augmenting the number of the offences concerned. 16. Mr. Rane was then contending that the respondent Gangabai was not a party to the previous order of acquittal under s. 345(6) and she cannot be deprived of her legal rights by that order passed behind her back. Mr. 16. Mr. Rane was then contending that the respondent Gangabai was not a party to the previous order of acquittal under s. 345(6) and she cannot be deprived of her legal rights by that order passed behind her back. Mr. Adik did not dispute that respondent has unfortunately been barred from proceeding with her complaint because of the legal position arising from the doctrine of "autrefois acquit", but he contended that she has to thank herself for her failure to come up in revision against the orders granting permission to Digamber to compound the offence of bigamy and the consequent acquittals under s. 345(6). As adumbrated, Digamber had specifically mentioned in his complaint that Nilkanthraos first marriage was also subsisting and his wife from the first marriage, namely, the respondent Gangabai was alive on the date of the impugned bigamous marriage. With that averment on record, the learned trial Magistrate before whom the application for composition had come, ought not to have granted permission to Digamberto compound the offence without noticing the respondent Gangabai and without giving her a hearing, because she would have been affected by the order granting permission to compound the offence which was bound to result in the acquittals of the petitioners by virtue of s. 345(6) of the Code of Criminal Procedure. The order of the learned Magistrate granting permission to Digamber under s. 345(2) to compound the offence without giving a hearing to the respondent Gangabai was clearly improper and erroneous. The respondent Gangabai should have challenged that order by filing an application for revision within due time or at least in the course of the arguments in the present case, when it became apparent that her complaint would be barred by the provisions of s. 403 of the Code of Criminal Procedure. However, the respondent Gangabai did nothing of the kind. Even a request was not made in the course of the agruments to suo motu register a revision against the erroneous order granting permission to Digamber under s. 345(2) and consequently, acquitting the petitioners. The consequential order under s. 345(6) has now become final due to the failure of the respondent Gangabai to move this Court to get the erroneous order vacated. The consequential order under s. 345(6) has now become final due to the failure of the respondent Gangabai to move this Court to get the erroneous order vacated. With that order, as it stands, it will not be permissible to allow the respondent Gangabai to continue her complaint under s. 494, Indian Penal Code, against the petitioners after the petitioners have already been acquitted of that offence by virtue of s. 345(6) of the Code of Criminal Procedure. 17. Mr. Rane then referred to Moyna Dasi v. Hiralal Mandal1 on which the learned Magistrate had relied in support of his contention that a separate offence with regard to the respondent Gaugabai had resulted from this marriage. That was a case in which one Behary Lal had complained against Hiralal Mandal and others to a Magistrate that the accused had been guilty of rioting and had caused hurt to him and to his mother Moyna Dasi. The Magistrate issued a warrant against Hiralal Mandal and others under 323 and 147 of the Indian Penal Code. After a couple of dates of hearing, the three accused compounded the disputes with the complainant Behary Lal and consequently the Magistrate acquitted the accused under s. 345(6) of the Code of Criminal Procedure. Thereafter, the mother Moyna Dasi filed her separate complaint against these three persons mentioning the same facts. The Magistrate was of the opinion that the compromise of Behary Lal did not affect Moyna Dasi and she was not debarred from proceeding against these accused. The case was then sent to another Magistrate, who however held that the complaint of Moyna Dasi was barred under s. 403 of the Code of Criminal Procedure. The learned Magistrate while discharging the accused did not decide, as a fact, whether Moyna Dasi was or was not a party to the compromise. The matter was taken up to the High Court; While allowing the petition and setting aside the order of discharge, the Division Bench of the Calcutta High Court made the following observations (p. 31): "Reference to the table in sub-so (1) of the section shows that the offence of causing hurt under S. 323, Penal Code, can only be compounded with the person to whom the hurt is caused; in other words, there can only be a composition for an offence of causing hurt to the persons who actually were parties to the compromise. If Moyna Daai was not a party to the compromise, then there was no composition with her and there can be no acquittal of the accused in that case in respect of the hurt caused to her". [The italic. are mine.] It would thus be seen that the Calcutta High Court held that the offence of causing hurt to Behary Lal was distinct and separate from the offence of causing hurt to Moyna Dasi and on that basis, took the view that the alleged compromise by Behary Lal did not debar Moyna Dasi from proceeding with her complaint with respect to the hurt caused to her. That decision was clearly distinguishable on facts from the present case and would be of no avail to Mr. Rane unless he were to satisfy this Court that two separate offences had resulted from the same bigamous marriage dated June 29,1962, which he had not been able to do. 18. That would take me to the question whether the present complaint is barred by s. 403, Code of Criminal Procedure or not. The learned trial Magistrate had observed in para. 3 of his order that the first wife, namely, the complainant. respondent Was an aggrieved party "and her right is neither tried nor compounded". Even Mr. Rane was not prepared to support these observations. It is not the right of the aggrieved party to file a complaint that comes for trial, but it is the offence which has to come to trial and such trial can be initiated only upon a complaint by the aggrieved person. What s. 3l5, Code of Criminal Procedure, provides for is the composition of the offences concerned and not of the right to proceed in respect of that offence. The offence must be kept distinct and separate from the right to prosecute for that offence. 19. Three essential points would arise for decision of this question: (1) was the person in jeopardy upon indictment, (2) was there a final verdict and (3) was the previous charge substantially similar to the present one. I have already indicated that the accused, namely, the present petitioners Nos. 19. Three essential points would arise for decision of this question: (1) was the person in jeopardy upon indictment, (2) was there a final verdict and (3) was the previous charge substantially similar to the present one. I have already indicated that the accused, namely, the present petitioners Nos. I and 2 were in jeopardy in the first complaint of Digamber and they were in the present complaint of the respondent because they were liable to be convicted as principal offenders on the ground that both of them had re-married when their respective spouses from the first marriage were alive. On composition of the offence an order of acquittal was passed under s. 345(6) and there was undoubtedly a final verdict. The previous charge in Digambers complaint was exactly the same as in the present case. In view of these three factors, there could be no doubt that the present complaint would be barred by the principle of "autrefois acquit" embodied in s. 403, Code of Criminal Procedure, because of the former acquittal of the petitioners for the same offence of Digamber arising out of the same facts, It was not disputed that the rulings referred to in the trial Courts order were not applicable to the facts of this case and I am, therefore, not considering them in this judgment. I have already indicated that the Calcutta Case is materially distinguishable on facts. 20. Mr. Rane was then submitting that the order sanctioning composition in Digambers case should not be treated as final because it was possible and likely that Digambers complaint might have failed on merits. The argument was that if Digamber had failed to prove that the petitioner Gangabai was his married wife or that marriage was subsisting, he would not have been entitled to any relief and his complaint would have been dismissed and the accused would have been discharged, and there would have been no question of acquittal on merits. It is difficult to understand how these assumptions were made. It was not the case of the respondent in the Courts below that Digamber was not authorised to file his complaint or that his marriage with the petitioner Gangabai was not subsisting. Mr. Rane was raising some problematic possibilities for which no foundation was laid in the Courts below. The submission of Mr. It was not the case of the respondent in the Courts below that Digamber was not authorised to file his complaint or that his marriage with the petitioner Gangabai was not subsisting. Mr. Rane was raising some problematic possibilities for which no foundation was laid in the Courts below. The submission of Mr. Rane by way of raising presumptive facts would be negatived by the recitals in the complaint of the respondent Gangabai that the marriage of Digamber with the petitioner Gangabai was subsisting and that Digamber was alive. With all those admissions of the respondent in her complaint, it would be too much to say that something else would have happened so as to compel the Magistrate to hold to the contrary that Digambers marriage was not subsisting or that the petitioner Gangabai was not his wedded wife. It is not permissible to raise these questions of fact for the first time in revision in this case. If the respondent wanted to take up that stand, the proper course for her was to raise these questions in the trial Court, which could have considered them at the proper time. 21. In the result, the application for revision is allowed and the order of the learned Magistrate directing that the complaint by the respondent should proceed is set aside. The application dated August 14, 1964, by the present petitioners to the trial Court is allowed. The proceedings be dropped as they are barred by s. 403 of the Code of Criminal Procedure. Rule is made absolute. Rule made absolute.