1. The question here is whether the Wardha Court has jurisdiction to try the applicant under the Child Marriage Restraint Act.
2. The marriage was celebrated at Bhopal and three persons are being proceeded against in respect of it. The applicant Sahebrao is the guardian and custodian of the minor girl who is said to have been married in contravention of the Act. The prosecution seek to implead him also as an accused. It is admitted that this can only be done if his case falls under Section 188 of the Cr PC. The relevant portion of the section is contained in the words I have underlined in the following extract:
“he may be dealt with in respect of such offence as if it had been committed, at any place within British India at which he may be found (here italicised)”.
3. It is admitted that the offence, if any, was committed in the “territory of a Native Prince.” It is also admitted that the applicant resides in Amraoti beyond the normal jurisdiction of the Wardha Court. What the prosecution allege is that he was “found” in Wardha when he attended the Court in response to the summons served on him. The applicant, on the other hand, states that he was “found” at Amraoti when the police served the summons on him there and states that he cannot be “found” a second time. It will be seen that the matter turns on the meaning of the word “found” in S. 188.
4. In my opinion, the whole question here is who is to do the “finding.” It is evident that no person or object can be said to be “found” unless somebody “finds” him or it. The whole question, therefore, is who is the person or authority contemplated by the section.
5. It was argued that Ss. 68 and 70 furnish the necessary clue. The former deals with the issue and serving of a summons, and the latter states that:
“where the person summoned cannot with the exercise of due diligence be found etc.”
6. It was said that it is obvious that this means “found” by the police because S. 68(2) prescribes that the summons shall in the normal course be served by a police officer. It was argued that when a word is used in a statute it must be given the same meaning throughout unless there is something to indicate the contrary in the statute itself.
7. I do not deny that the expression “found” as used in S. 188 can be interpreted in different ways, but in view of the fact that it has been judicially interpreted in a certain sense over many years, I do not feel I will be justified in taking a different view, particularly as it accords with my own ideas as to what will best carry out the intent of the section.
8. I do not feel that the argument relating to Ss. 68 and 70 is conclusive because there is material in these sections to indicate that the “finding” is to be by a police officer or other person specially designated for the purpose. Section 188 contains no such limitation and as Ss. 68(2) and 70 are expressly confined to police officers or their substitutes, while S. 188 is not. I do not feel it incumbent on me to impose limitations in S. 188 where none exists simply because a special limitation appears in the other two.
9. In my opinion, “found” in S. 188 means found by the Court at the time when the matter comes up for trial, that is to say, any Court which is otherwise competent to try the offence can take seisin the moment the accused appears in its presence. How the accused gets there is immaterial. It does not matter whether he comes voluntarily or in answer to a summons or under illegal arrest. It is enough that the Court should find him present when it comes to take up the matter.
10. In A.I.R 1936 Nag. 1521 the offence was committed at a place in the Bhopal State, the accused resided at Itarsi in the Hoshangabad District and was tried by a Hoshangabad Court. It is not clear how he got to Hoshangabad but it was held that he must be taken to have been found where he was actually present and so the Hoshangabad Court had jurisdiction. By this I understand the learned Judge to mean that as he was found to be present in the Hoshangabad Court at the relevant time that Court had jurisdiction. I does not think anything turned upon his residence at Itarsi because the section does not deal with residence, nor do I think it mattered how he reached the Hoshangabad Court. The only relevant point was that he was found to be present in Court at the proper time and that gave the Court jurisdiction.
11. This follows the view taken in 35 Bom. 2252 and 6 Bom. 6223 as also in the English case reported in (1858) 27 L.J.M.C 48.4 There is also a case in 13 Bom. 147.5 In all these cases the principle applied has been that it does not matter how the accused reaches the Court: he must be taken to have been “found” wherever he is actually present and by that I take it is meant found by the Court. I cannot see how the fact of illegal arrest outside jurisdiction and a forcible and wrongful bringing into Court can make him to be “found” within jurisdiction and not a voluntary appearance or one in answer to a summons.
12. In all these cases the finding was, in my opinion, done by the Court and not by the police or any other body or person. So far as the police are concerned, they “found” their man at the place where they arrested him and that was outside jurisdiction. They could not be said to have re-found him the moment they entered jurisdiction or at any of the places through which they passed; therefore, the matter could not have turned upon their finding. The only authority left was the Court and, in my opinion, the decisions mean and lay down the broad general proposition that an accused is “found” for the purposes of S. 188 at any Court with jurisdiction otherwise in which he happens to be present irrespective of how he got there.
13. It is objected as to this that this would give several Courts jurisdiction. I can see not harm in this. It is common for different Courts to have concurrent jurisdiction in certain matters. Any conflict which arises can always be resolved by some higher tribunal which can decide where the accused should be tried. But I do not think the question would be likely to arise. If Court A “finds” an accused present and enters upon a trial, it is evident that Court B would not entertain the same matter. But if it did, a reference to a higher tribunal, such as the High Court, would at once set the matter right.
14. So far as England is concerned, the question has been resolved in this sense through various statutes for many years. Thus in cases of forgery, an old Statute of George IV required the trial to be either in the place in which the prisoner was apprehended or where he shall “be in custody”. In (1850) 19 L.J.M.C 316 Parke, B, held and the other Judges concurred that:
“the prisoner falls within the words of the statute ‘be in custody’ here.”
15. This was in 1849. The learned Judge also pointed out that the report of an earlier case in the year (1840) 2 Moo P.C 186,7 was wrong. The report suggests that the conviction had been quashed, whereas Parke, B., who was a member of the tribunal, pointed out that it had been upheld by nine of the eleven Judges who considered the matter.
16. In (1810) 2 Moo. P.C 186 it was argued for the Crown that the words “being in custody” were added:
“to provide for a man being apprehended in one county and brought in custody to another.”
17. The later English cases in (1858) 27 L.J.M.C 48 and Queen v. Sattler, decided in 1858 took the same view of the expression “found” in 19 and 20 Vict. C. 91, S. 21. That section corresponds to S. 188 and also uses the word “found”. Welsby arguing for the Crown contended that
“the expression in the above-named Act, where the foreigner shall be ‘found’, does not mean where the man is discovered, but where he shall be at the time of trial.”
18. I gather this construction was accepted. Lord Campbell said at p. 51:
“It is clear the prisoner was found within the jurisdiction of the Central Criminal Court. Ballantyne, Serj has contended that a man brought into a place against his will cannot be said to be found there. But we are of a different opinion. We think the Act of Parliament is framed for the purpose of providing against any such questions being raised. A man is found wherever he is actually present.”
19. As regards the Indian cases, 6 Bom. 622 was under the Foreign Jurisdiction and Extradition Act, XXI of 1879, while the other cases I have cited were under Section 188 of the Cr PC.
20. Turning to the dictionary-meaning of the word, it is defined in the Oxford English Dictionary as meaning not only a discovery but also “to come upon in the course of events” and “to perceive or recognise the presence of.” I am clear that the authority which has to do the “finding” is the Court and if a person is present in Court, the Court either “comes upon him in the course of events” or “perceives or recognises his presence.” The application fails and is dismissed.
21. Application dismissed.