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1987 DIGILAW 474 (ALL)

Premwati v. State of U. P.

1987-04-21

R.K.SHUKLA

body1987
JUDGMENT R.K. Shukla, J. - This criminal misc. application filed by Premwati and 9 others u/s 482 Code of Criminal Procedure is directed against the judgment and order dt 7.11.1981, passed by the 3rd Additional District and Sessions Judge, Bulandshahar, whereby he has dismissed the revision of the applicant and maintained the order dated 28.8.1980 of the Magistrate in Case No. 541 of 1980 by which cognizance of offences u/s 5/6 of the Child Marriage Restraint Act,' 1929 (here-in-after called the Act) was taken. The applicants have prayed for quashing the order dated 28.8.80 passed by the learned Magistrate. 2. Brief facts of the case are that Ramjit Singh complainant filed a complaint on 19.7.1979 before the Judicial Magistrate, Bulandshahr against all the ten applicants u/s 5/6 of the Act with the allegations that the applicants committed the offence on 25.10.1978 by performing the marriage of a minor boy, Hira Lai. The Magistrate after taking evidence Under Sections 200 and 202 Code of Criminal Procedure took the cognizance of the offence and passed the order for summoning the applicants on 7.7.1979. That complaint was however dismissed u/s 203 Code of Criminal Procedure for want of non appearance of the complainant on the date fixed i.e. 23.1.1980. The complainant thereafter filed a fresh complaint in the court of the Magistrate on 30.1.1980 on the same facts and against the same accused. It was alleged that complainant mistook the aforesaid date 23.1.80 as 30.1.80. Therefore, he failed to appear and hence he filed a fresh complaint on 30.1.1980. The learned Magistrate summoned the record of the previous complaint and after taking evidence u/s 202 Code of Criminal Procedure took the cognizance on 28.8.1980 on the subsequent complaint and summoned the applicants. The applicants appeared before the Magistrate and moved an application objecting the complaint as time barred. The Magistrate dismissed the application by means of the impugned order, against which they preferred a revision before the learned Sessions Judge, who has dismissed the same by holding that discretion u/s 473 Code of Criminal Procedure has been rightly exercised by the learned Magistrate. 3. Referring Sections 4 and 5 of the Code of Criminal Procedure and Section 9 of the Child Marriage Restraint Act, 1929, Mr. 3. Referring Sections 4 and 5 of the Code of Criminal Procedure and Section 9 of the Child Marriage Restraint Act, 1929, Mr. R.P. Tripathi, learned Counsel for the applicants vehementally urged that Section 473 Code of Criminal Procedure will not override the specific provision made u/s 9 of the aforesaid Act. 4. The Child Marriage Restraint Act, 1929 was enacted with a view to prevent child marriages, namely, a marriage to which either of the contracting parties is under a specified age. Originally, the age of limit for a male was 18 years and for female 14 years. The age limit was subsequently raised in the case of female from 14 to 15 by the Amending Act, 41 of 1949. Violation of the provisions of the Act is made punishable. The question of increasing the minimum age of marrige for males and females has been considered in the present context when there is an urgent need to check the growth of population in the country. By Act 2 of 1978 the minimum age of marriage from 15 to 16 for females and from 18 to 21 for males have been raised and consequential amendment in the Hindu Marriage Act, 1955 and the Indian Christian Marriage Act, 1872 has also been made. 5. It has also been provided by the aforesaid amendment that the offences under Child Marriage Restraint Act may be investigated upon by a police officer under the Code of Criminal Procedure as if it were cognizable offences. The Police Officer shall however, not have the power to arrest without a warrant or order of Magistrate. Section 5 of the Act has made a provision for punishment for solemnising a child marriage. Under this provision whoever performs, conducts or directs any child marriage shall be punishable with simple imprisonment which may extend three months and shall also be liable to fine. Section 6 of the Act provides that when a minor contracts a child marriage, any person having charge of the minor whether as a parent or a guardian or in any capacity, lawful, or unlawful who does any act to promote the marriage or permits it to be solemnised or negligently fails to prevent from being solemnised shall be punishable with simple imprisonment which may extend to three months and shall also be liable to fine, provided that woman shall not be punished with imprisonment. Section 9 of the Act has made a provision for mode of taking cognizance of the offences as under: No court shall take cognizance of any offence under this Act after the expiry of one year from the date of on which the offence is alleged to have been committed. A new Section 7 has been inserted in the Act by Act 2 of 1978 which reads as under: 7. Offence to be cognizable for certain purposes. The Code of Criminal Procedure, 1973, shall apply to offences under this Act as if they were cognizable offences for the purpose of investigation of such offences, and for the purposes of matters other than (i) matters referred to in Section 42 of that Code and (ii) the arrest of a person without a warrant or without an order of a Magistrate. From the above it is quite clear that in view of Section 7 inserted by Act 2 of 1978 the offences under the Act are made cognizable for certain purposes. The limitation prescribed in Section 9 aforesaid being incorporated in the original Act by the Amending Act (19 of 1938) continues to be effective notwithstanding the repeal of the Amending Act by the Repealing Act 25 of 1942, by virtue of the saving clause contained in Section 4 of the Repealing Act. By virtue of Section 7 of the Act, Code of Criminal Procedure has been made applicable to offences under this Act as if they were cognizable offences for the purposes of investigation of such offences and for the purposes of matters other than referred to in Section 42 of that Code, and (ii) the arrest of a person without a warrant or without an order of a Magistrate. 6. Now the question for our determination is whether Section 473 Code of Criminal Procedure 1973 will override the provision of Section 9 of the Child Marriage Restraint Act, 1929. It is fairly established rule of interpretation of statute that whenever the legislature in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the legislature had before provided for specially, unless an intention to do so is specifically declared. A merely general rule is not enough, even though by its terms it is so widely stated that it would, taken by itself, covers special cases. The rule of interpretation is clear that a general statute will not, in the absence of clear words, be construed as derogating from special provision in a previous statute. Generalia specialibus non-derogant and when the legislature has given its attention to a particular subject and made provisions for it, the presumption is that the subsequent and general enactment is not intended to interfere with or derogate from the special provision unless an intention to do so is clearly manifested. Legislative intention is quite clear from the wording of Section 9. of the Act that no court shall take cognizance of any offence under this Act after the expiry of one year from the date on which the offence is alleged to have been committed. Section 5 of the Criminal Procedure Code, 1973 makes a provision of a saving clause that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 7. After careful scrutiny of the relevant provisions of both the statutes, I am fully satisfied that provision of Section 9 of the Act is saved from the clutches of newly added Section 473 Code of Criminal Procedure in view of the aforesaid Section 5 of the same Code. Thus, I find that rigor of Section 9 of the Act has not been taken a A ay by the Criminal Procedure Code. Neither the Magistrate nor the learned Sessions Judge has considered the effect of Section 9 of the Act. Therefore, this judgment of the courts below are liable to be quashed. 8. It is further urged by Sri R.P. Tripathi, learned Counsel for the applicants that second complaint dated 30.1.1980 is on the same facts and no special case is made out in the instant case therefore, it is not maintainable. In support of his contention he relied on Maj. Genl. A.S. Gauray v. S.N. Thakur 1986 AWC 995 = 1986 A CrR 500 . In support of his contention he relied on Maj. Genl. A.S. Gauray v. S.N. Thakur 1986 AWC 995 = 1986 A CrR 500 . It is clearly held in the above case that a second complaint is permissible in law if it could be brought within the limitation imposed by the Supreme Court in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, AIR 1962 SC 876 . Filing of a second complaint is not the same thing as revising a dismissed complaint after recalling the earlier order of dismissal. Code of Criminal Procedure does not contain any provision enabling the criminal court to restore a dismissed compLint. In view of the above decision of the Supreme Court a second complaint can lie only on fresh facts or even on the previous facts only if special case is made out, as has been held by the Supreme Court in Taluqdar's case (supra). In the instant case having in view Section 9 of the Act, no special case is made out by the complainant for filing a second complaint on the same facts after the expiry of limitation of one year from the date on which the offence is alleged to have been committed. 9. In view of the above discussions the order dated 28.8.1980 by which cognizance of the offence has been taken would fall to the ground and summoning of the accused applicants must be treated to be a nullity and destitute of any legal effect. Therefore, the orders of the Courts below are liable to be quashed. 10. In the result this application succeeds and is allowed. The order of the learned Sessions Judge, dated 7.11.1981 as well as the order of the Magistrate dated 28.8.1980 are quashed.