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Citation Codes
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Case Number
Attorney(S)
  • A.D Desai, for Petitioner.
  • V.S Desai, Assistant Government Pleader for the State.
  • D.V Patel, for Opponents.
Judges
  • Mr. Shah, J.
Acts
  • s. 369 of the Criminal Procedure Code. Sections 488 and 489 of the Criminal Procedure Code
  • s. 316 of the Criminal Procedure Code (s. 488 of the Criminal Procedure Code, Act V of 1898),
  • s. 20 of the Cattle-Trespass Act, 1871.The Criminal Procedure Code
  • s. 488 of the Criminal Procedure Code (Act X of 1882),
  • SECTION 177 CRIMINAL PROCEDURE CODE
  • SECTION 190 CRIMINAL PROCEDURE CODE
  • Criminal Procedure Code, Act X of 1882,
  • discharged.Rule discharged.G.N.V
  • s. 131 of Act 18 of 1923 sub-s. (8)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • A.D Desai, for Petitioner.
  • V.S Desai, Assistant Government Pleader for the State.
  • D.V Patel, for Opponents.
Judges
  • Mr. Shah, J.
Acts
  • s. 369 of the Criminal Procedure Code. Sections 488 and 489 of the Criminal Procedure Code
  • s. 316 of the Criminal Procedure Code (s. 488 of the Criminal Procedure Code, Act V of 1898),
  • s. 20 of the Cattle-Trespass Act, 1871.The Criminal Procedure Code
  • s. 488 of the Criminal Procedure Code (Act X of 1882),
  • SECTION 177 CRIMINAL PROCEDURE CODE
  • SECTION 190 CRIMINAL PROCEDURE CODE
  • Criminal Procedure Code, Act X of 1882,
  • discharged.Rule discharged.G.N.V
  • s. 131 of Act 18 of 1923 sub-s. (8)
See more information ...
Smart Summary

Summary of Opinion — Shah, J.

Factual and Procedural Background

Thakore Shri Jaswantsinghji Fatesinghji (the petitioner), formerly the Ruler of the Indian State of Khodal which merged into the Union of India on May 26, 1948, was the subject of an application under section 488 of the Criminal Procedure Code filed in the Court of the Resident Magistrate, First Class, Kapadvanj by Opponents Nos. 1 and 2, who claimed to be his wife and son respectively. The opponents sought an order for proper maintenance from the petitioner.

The petitioner contended before the trial Magistrate that he was a “Ruler” within the meaning of Article 362 of the Constitution and that proceedings against him required the previous sanction of the Central Government under section 197A of the Criminal Procedure Code (added by Act I of 1951). He relied on Schedule II of the White Paper and Article 4 of the agreement dated May 26, 1948 between him and the Governor-General, which provided entitlement to personal privileges, and on section 197A(2).

The trial Magistrate held that the petitioner's case under section 488 was not a charge of an “offence” and therefore did not require prior Central Government sanction; he entertained the application. The petitioner filed a revision in the Court of Sessions at Nadiad. The Sessions Judge held that an application under section 488 did not amount to an “accusation of an offence” within the meaning of section 197A, and rejected the revision. The petitioner pursued revision to this Court.

Legal Issues Presented

  1. Whether an application under section 488 of the Criminal Procedure Code for maintenance is an accusation of an “offence” within the meaning of clause (c) of section 4 (definition of “offence”) and section 197A(2) of the Criminal Procedure Code such that previous sanction of the Central Government is required before a criminal court takes cognizance against a Ruler of a former Indian State.

Arguments of the Parties

Petitioner's Arguments

  • The petitioner asserted that he is recognised as a “Ruler” under Article 362 of the Constitution and the agreement of May 26, 1948; hence section 197A(2) applies and bars criminal courts from taking cognizance of offences alleged to have been committed by former Rulers except with prior Central Government sanction.
  • Reliance was placed on Schedule II of the White Paper and on Article 4 of the agreement dated May 26, 1948 (which preserved personal privileges for the Thakorshi and certain relations) to support the claim of status requiring sanction.
  • Reliance was also placed on section 197A(2) (introduced by Act I of 1951) as barring the proceedings without prior sanction.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
In the matter of the petition of Malcolm DeCosta (Allahabad High Court) The view that neglect to maintain a wife is an “offence” punishable under the Code and that its place of trial is governed by Chapter XV (i.e., such an application may be treated as a complaint of an offence). The Court distinguished this decision on the ground that it was decided under the Criminal Procedure Code, Act X of 1882 (which lacked provisions analogous to subsection (8) of section 488 of the 1898 Code as amended in 1923). The present scheme (post-1898 and amendments) is inconsistent with treating a section 488 application as a complaint of an offence.
The Petition of Shaikh Fakrudin The decision treated an application under section 488 (Act X of 1882) as a “complaint” and spoke of territorial jurisdiction being where the husband or father resided at the date of the complaint. The Court noted that that decision arose in the context of earlier statutory schemes lacking express territorial jurisdiction provisions; the present Code's amendments indicate that section 488 applications are not to be treated as complaints about offences for the purposes of territorial cognizance rules.
Reg. v. Thaku bin Ira Held that an order of maintenance under section 316 of the earlier Code (section 488 of the 1898 Code) is a “judicial proceeding of a Criminal Court” within the meaning of section 404 of that Code, but that no appeal lies under section 409 from such an order. The Court cited this case for the proposition that maintenance orders were judicial proceedings of a criminal court but observed that such proceedings do not necessarily amount to a charge of an offence; it relied on present Code provisions to hold that an application under section 488 is not a charge for the commission of an offence.

Court's Reasoning and Analysis

The Court analysed the question by reference to the statutory definition of “offence” in clause (c) of section 4 of the Criminal Procedure Code: “Offence” means any act or omission made punishable by any law for the time being in force; and also includes any act in respect of which a complaint may be made under section 20 of the Cattle-Trespass Act, 1871.

Key points in the Court's step-by-step analysis (as expressed in the opinion):

  1. The Court noted that the Code does not make mere failure to maintain wife and children punishable per se; what the Code makes punishable is failure, without sufficient cause, to comply with an order passed by a Magistrate for payment of maintenance.
  2. Section 488 provides a summary remedy to wives and children to obtain an order for maintenance on proof of neglect or refusal to maintain. Although enforcement mechanisms exist (warrant for levy, imprisonment for non-compliance), the existence of enforcement does not convert the original application for maintenance into a charge of an “offence” under clause (c) of section 4.
  3. The Court emphasised the civil remedial character of section 488 proceedings: Chapter XXXVI gives abandoned wives and children the right to approach a Magistrate for maintenance, and the fact that proceedings are in a Magistrate's court does not convert them into criminal proceedings or proceedings in respect of an offence.
  4. Legislative and historical indicators supported this view:
    • Subsection (8) of section 488 (which prescribes the forum for such applications) and its amendment in 1923 (by section 131 of Act 18 of 1923) changing language from “the accused may be proceeded against” to “Proceedings under this section may be taken against any person” indicate that the person is not regarded as one charged with an offence.
    • Other provisions such as section 177 (place of enquiry and trial), section 190 (cognizance), section 340 (evidence by the person against whom proceedings are instituted), and the special procedural provisions in Chapter XXXVI show that applications under section 488 are treated specially and are not governed by general complaint/ offence rules.
    • Subsection (7) of section 488 authorises the Magistrate to award costs, which the Court observed is not a normal incident of criminal trials, reinforcing the civil character of these proceedings.
  5. The Court considered and distinguished earlier authorities:
    • In re Malcolm DeCosta and The Petition of Shaikh Fakrudin were decided under the Code as it stood in 1882 and in a statutory context without the territorial and procedural amendments introduced in subsequent enactments; under those circumstances earlier courts had treated section 488 applications as complaints of an offence. The present Code (Act V of 1898 as amended and subsequent changes) is inconsistent with that approach.
    • Reg. v. Thaku bin Ira was noted to have held that a maintenance order is a “judicial proceeding of a Criminal Court” but that such a proceeding did not give rise to an appeal; the present Court interpreted that decision as not stating that a section 488 application is a charge of an offence for the purposes of section 197A.
  6. On the basis of the statutory definition of “offence”, the amended procedural provisions, the specific provisions of Chapter XXXVI and the legislative history, the Court concluded that an application under section 488 is essentially a civil remedy and is not an accusation of an offence within the meaning of section 197A(2). Accordingly, section 197A did not bar the trial court's jurisdiction in the present case.

Holding and Implications

Rule discharged.

Direct consequences and orders made by the Court (as stated in the opinion):

  • The revision filed by the petitioner was dismissed by discharging the rule.
  • The petitioner was ordered to pay the costs of opponents Nos. 2 and 3 under section 488, sub-section (7) of the Criminal Procedure Code; costs were quantified at Rs. 50.
  • The interim stay previously in place was discharged.

Implications: The Court held that proceedings under section 488 of the Criminal Procedure Code for maintenance are not accusations of an “offence” within the meaning of clause (c) of section 4 and section 197A(2). Therefore, where a person is alleged to be a “Ruler” of a former Indian State, section 197A(2) does not operate to oust the jurisdiction of the Magistrate in respect of a section 488 application by reason of the need for prior Central Government sanction. The opinion did not assert or state that it was laying down a new general precedent beyond its reasoning; it confined itself to the statutory interpretation and the direct effect on the parties in this matter.

End of summary of the opinion delivered by Shah, J.

Show full summary ...

    Jaswantsinghji Fathehsinghji v. Kasuba Harisinh

    Shah, J.:—

    Thakore Shri Jaswantsinghji Fatesinghji (hereinafter referred to as the petitioner) was a Ruler of an Indian State known as Khodal. On May 26, 1948 the Khodal State merged with the Union of India and the territory thereof now forms part of the Bombay State. The petitioner claims that the is recognised under art. 362 of the Constitution of India as a Ruler. Opponents Nos. 1 and 2 claiming, respectively, to be the wife and son of the petitioner, filed an application under s. 488 of the Criminal Procedure Code in the Court of the Resident Magistrate, First Class, Kapadvanj, for an order that they be awarded proper maintenance from the petitioner. It was urged on behalf of the petitioner before the learned trial Magistrate that he was a ‘Ruler’ within the meaning of the Constitution of India, and therefore the proceedings taken against him in the court of the Resident Magistrate were in the absence of sanction of the Central Government incompetent. In support of that contention reliance was placed upon Schedule II of the White Paper, which gives a list of the former Indian States which merged with the Province of Bombay, and upon art. 4 of the agreement between the petitioner and the Governor General of India dated May 26, 1948. Article 4 provided:

    “Thakorshi, his wife, his mother, the heir apparent and his wife shall be entitled to all personal privileges enjoyed by them within or outside the territories of the State immediately before August 15, 1947.”

    Reliance was also placed upon s. 197A of the Criminal Procedure Code, which was added by the Legislature by Act I of 1951 with a view to effectuate the agreements entered into by the Government with the Rulers of Indian States. Sub-s. (2) of s. 197A provides that ‘no court shall take cognizance of any offence alleged to have been committed by the ruler of a former Indian State except with the previous sanction of the Central Government’.

    The learned trial Magistrate held that the petitioner was not charged with having committed an ‘offence’, and therefore ‘the previous sanction of the Central Government’ to the institution of the application was not necessary and the proceedings under s. 488 of the Criminal Procedure Code were competent against the petitioner, and that he had jurisdiction to entertain the application.

    Against the order passed by the learned trial Magistrate, an application in revision was filed in the Court of Sessions at Nadiad by the petitioner. The learned Sessions Judge held that an application under s. 488 of the Criminal Procedure Code did not amount to ‘accusation of an offence within the meaning of s. 197A of the Criminal Procedure Code’, and therefore the trial Magistrate had jurisdiction to entertain the application filed by the opponents and sanction of the Central Government was not a condition precedent to the opponents' making an application. On that view the learned Sessions Judge rejected the revision application filed by the petitioner. The petitioner has come to this court in revision.

    Section 197-A, sub-s. (2) prohibits criminal courts from taking cognizance of offences alleged to have been committed by Rulers of former Indian States except with the previous sanction of the Central Government. The expression ‘offence’ is defined in cl. (c) of s. 4 of the Criminal Procedure Code as follows:

    “Offence” means any act or omission made punishable by any law for the time being in force; and also includes any act in respect of which a complaint may be made under s. 20 of the Cattle-Trespass Act, 1871.”

    The Criminal Procedure Code does not make failure to maintain the wife and children punishable. What is made punishable under the Code is failure without sufficient cause to carry out the order passed by a Magistrate for payment of maintenance. section 488 of the code provides a summary remedy available to the wife and children—legitimate or illegitimate—of a person on proof of neglect or refusal to maintain, to obtain an order for maintenance against that person. It is true that if an order for payment of maintenance under s. 488 of the Criminal Procedure is not complied with, the same may be executed by issue of a warrant for levying the amount due under the order in the manner provided for recovery of fines. The Magistrate who passes an order for payment of maintenance can also sentence the person ordered to pay maintenance, ‘if he fails without sufficient cause to comply with the order,’ to suffer rigorous imprisonment for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant. But the fact that the Legislature has made provision for enforcement of the order passed under s. 488 of the Criminal Procedure Code for levying the amount due under it in the manner in which fines are recovered, or by directing that the person who contumaciously disregards the order shall be liable to punishment, does not convert an application for maintenance, into a charge for commission of an ‘offence’ within the meaning of cl. (c) of s. 4 of the Criminal Procedure Code. What is essentially a civil remedy is given to abandoned wives and children by providing in Chapter XXXVI of Criminal Procedure Code a right to approach a Magistrate of the First Class or a Presidency Magistrate for an order for payment of maintenance. The fact that the proceedings lie in the court of a Magistrate does not convert those proceedings into ‘criminal proceedings’ nor proceedings in respect of an offence. Inherent in the provisions of ss. 488, 489 and 490, which fall in Chapter XXXVI of the Code, is sufficient indication to show that the proceedings under s. 488 of the Code are not regarded as proceedings in respect of an offence. Section 177 of the Criminal Procedure Code provides for ‘place of enquiry and trial’ of every offence, and subsequent sections in Chapter XV in which s. 177 falls, deal with place of enquiry and trial in certain specified cases. But sub-s. (8) of s. 488 provides for the forum which must be approached for the trial of an application filed for maintenance under s. 488. It is evident that the Legislature did not regard an application for maintenance under s. 488 of the Criminal Procedure Code as a complaint charging the husband or the father with the commission of an offence. Under the Criminal Procedure Code of 1898, in sub-s. (8) of s. 488 before it was amended in 1923 it was provided that ‘the accused may be proceeded against’ in any district where he resides etc. Thereafter by s. 131 of Act 18 of 1923 sub-s. (8) was amended, and the words “the accused may be proceeded against” were substituted by the words ‘Proceedings under this section may be taken against any person.’ That again is another indication that the person against whom an application is made for payment of maintenance is not regarded as one who is charged with the commission of an offence. It is settled law that a judgment once delivered by a Court cannot be altered by it, and that is provided in s. 369 of the Criminal Procedure Code. Sections 488 and 489 of the Criminal Procedure Code provide for alteration in the allowance awarded in view of change of circumstances, or for other reasons. Section 190 of the Criminal Procedure Code provides for cognizance of offences by Magistrates. If the Legislature treated the failure to maintain a wife or a child as an offence, it was unnecessary to make a special provision regarding cognizance of applications for maintenance under s. 488 of the Criminal Procedure Code. Sub-s. (7) of s. 488 authorises the Magistrate trying a case to award costs. An order for costs to a successful litigant is again not the normal incident of a criminal trial in our jurisprudence. In my judgment the Courts below were right in holding that the petitioner was not charged with commission of any offence and therefore s. 197A of the Criminal Procedure Code did not bar the jurisdiction of the trial court.

    Reliance was placed by Mr. A.D Desai upon a judgment of the Allahabad High Court reported in In the matter of the petition of Malcolm DeCosta.(4) It is true that Mr. Justice Knox, who delivered the judgment of the Court in that case, observed at page 350 of the report:

    “The neglect to maintain a wife is an offence, inasmuch as it is an omission which is made punishable by the Code, and as an offence its place of trial must be determined by the provisions laid down in Chapter XV of the Code.”

    That case was decided under Chapter XXXVI of the Criminal Procedure Code, Act X of 1882, which did not contain any provision similar to sub-s. (8) of s. 488 of the Criminal Procedure Code of 1898. It is true that even under the Criminal Procedure Code of 1882 the expression ‘offence’ meant any act or omission made punishable by any law for the time being in force’; and s. 177 of that Code provided that ‘every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed.’ There being no provision in the Criminal Procedure Code conferring territorial jurisdiction upon certain Magistrates for trial of applications under s. 488 of the Code, the court in that case preferred to treat the application for maintenance as a ‘complaint’ in respect of commission of an offence. It may be noted that since the year 1882, s. 488 of the Criminal Procedure Code has undergone substantial changes. Whereas under s. 342, cl. (4) of the Criminal Procedure Code no oath can be administered to an accused person, s. 340 expressly provides for evidence being given by a person against whom an application is made for maintenance. It is evident that in the view of the Legislature applications under s. 488 of the Criminal Procedure Code are not governed by the terms of s. 342 of the Criminal Procedure Code. The Legislature has made special provision for dispensing with the presence of the person against whom an application is made under s. 488 of the Criminal Procedure Code, and has also provided a period of limitation after the expiration of which the amount of maintenance awarded cannot be recovered. By the amendment of s. 340 of the Criminal Procedure Code in the year 1923 it has been provided that any person against whom proceedings are instituted, inter alia, under Chapter XXXVI of the Code may offer himself ‘as a witness in such proceedings.’ Whatever the view, which could be taken of s. 488 as it stood when ‘In re Malcolm DeCosta’ was decided, the scheme of the Criminal Procedure Code of 1898 as amended in 1923 is inconsistent with the view that in entertaining an application for maintenance, a Magistrate entertains a complaint for an offence alleged to have been committed by the person from whom maintenance is claimed. Mr. Desai also relied upon The Petition of Shaikh Fakrudin(5) in support of his contention that proceeding for maintenance was a proceeding relating to the commission of an offence against the father or husband. It was held in that case that ‘a complaint under s. 488 of the Criminal Procedure Code (Act X of 1882), falls within the cognizance of the Magistrate competent to entertain such complaint, and within the local limits of whose jurisdiction the husband or the father is actually residing at the date of such complaint.’ It is true that in that case the learned Judges who decided that case called an application for maintenance, a ‘complaint’, and held following the practice in England under the analogous provisions, that cognizance could be taken of that ‘complaint’ by the Magistrate competent to entertain the complaint and within the local limits of whose jurisdiction the husband or the father was actually residing at the date of the complaint. It is evident on a perusal of the judgment that the Legislature having failed to make any express provision conferring territorial jurisdiction upon Magistrates to try cases under s. 488 of the Criminal Procedure Code, the Court regarded an application under s. 488 as a ‘complaint’, of the commission of the offence triable by a Magistrate within whose jurisdiction the opponent of the date of the application resided.

    In this connection it may also be useful to refer to a judgment of this Court reported in Reg. v. Thaku bin Ira(6) in which the Court held that

    “an order of maintenance, under s. 316 of the Criminal Procedure Code (s. 488 of the Criminal Procedure Code, Act V of 1898), is a ‘judicial proceeding of a Criminal Court’ within the meaning of s. 404 of that Code, but no appeal lies against such order under s. 409.”

    It appears that in that case the court took the view that there was no conviction by a criminal Court, and hence an appeal against the order awarding maintenance was incompetent. In my view, having regard to the terms of s. 488 of the Criminal Procedure Code as it stands at present, an application for maintenance filed by a wife or a child against a person cannot be regarded ‘as making of a charge for the commission of an offence’ against him.

    The courts below were therefore right in the view they took that the trial court had jurisdiction without the sanction of the Central Government to try the application filed under s. 488 of the Criminal Procedure Code against the petitioner.

    The rule is discharged. The petitioner to pay the costs under s. 488, sub-s. (7) of the Criminal Procedure Code of opponents Nos. 2 and 3. Costs quantified at Rs. 50. Interim stay discharged.

    Rule discharged.
    G.N.V
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    Comments

    Jaswantsinghji Fathehsinghji v. Kasuba Harisinh
    (Apr 15, 1954)