JUDGMENT : Narasimham, C.J. - This is a revision against the appellate judgment of the Sessions Judge of Puri, maintaining the conviction of the two Petitioners u/s 6 of the Child Marriage Restraint Act, 1929 and the sentences of one month's simple imprisonment and fine of Rs. 50/- passed on each of them by a First Class Magistrate of Khandpara. 2. Petitioner No. 1, Jogendra Lenka is the father of the girl named Rambha and Petitioner No. 2 Banchha Nidhi Nayak is the father of the boy named Kashi Nath. It was alleged that in contravention of the provisions of the Child Marriage Restraint Act the parents of the bridegroom solemnised their marriage in an approved form on 21-1-1960 at 9 p.m. and that thereby they committed an offence u/s 6 of that Act. 3. The trial court held that on the date of the marriage the bride Rambha was only 12 years of age. He did not come to a clear finding regarding the age of the bridegroom Kashinath, but held that even if one of the contracting parties to the marriage was a child the offence under the Act was made out. On appeal the learned Sessions Judge was also of the same view. There is thus the concurrent finding of the two lower courts that the bride was below the age of 15 years. But there is no finding to the effect that the bridegroom Kashinath was below the age of 16. The benefit of this must go to Kashinath. 4. Two important questions of law were tragedy Mr. Pal for the Petitioners. Firstly he urged that a preliminary enquiry u/s 202, Code of Criminal Procedure which was mandatory u/s 10 of the Child Marriage Restraint Act was of held and that consequently all subsequent proceedings were without jurisdiction. Secondly he urged that in any case, as the grotto was not held to be a child within the meaning of the Act the father of the groom namely Banchhanidhi Nayak was not liable u/s 6 of that Act. 5. For appreciation of the first point it is necessary to refer to the following facts. Secondly he urged that in any case, as the grotto was not held to be a child within the meaning of the Act the father of the groom namely Banchhanidhi Nayak was not liable u/s 6 of that Act. 5. For appreciation of the first point it is necessary to refer to the following facts. When the complaint was first filed on 27-1-1960, the Sub-divisional Magistrate directed an enquiry by the President of the Adalti Panchayet, but when the later delayed the housing of the enquiry the Magistrate, on 4-4-1960 directed a judicial enquiry by a Magistrate, III Class, named Sri B. Misra. That Magistrate also did not hold the enquiry as he went away on transfer. Hence, on 7-5-1960 the learned Sub-divisional Magistrate passed the following order: Complainant is present. Enquiry report not received. Sri B. Misra, Magistrate, III Class has gone on transfer. Hence it is useless to delay the matter for enquiry. Perused the statement of the complainant. I am satisfied that there is a prima facie case against the accused persons. Hence cognisance u/s 6 of the Child Marriage Restraint Act and Section 114, Indian Penal Code taken. Issue summons to the accused persons for their appearance on 21-5-1960.... The case was taken up for trial on 23-6-1960 and on that day the substance of the accusation was explained to the accused persons. But they did not plead guilty and claimed to be tried. The Court then posted the case for hearing to 11-8-1960. It was then adjourned to 14-10-1960 when for the first time the learned Magistrate realised that there may be some difficulty in proceeding with the trial due to non compliance with Section 10 of the Child Marriage Restraint Act. He heard the parties on this matter and on 5-1-1961 held, relying on AIR 1940 Nagpur 375 , that the omission to hold a preliminary enquiry u/s 10 was only an irregularity and proceeded with the trial. 6. There is no doubt that a preliminary enquiry is mandatory when an offence under the Child Marriage Restraint Act is alleged in view of the express provision in Section 10 of that Act. Hence if the matter had been brought to the notice of the High Court at the earliest stage the proceeding would have been quashed and an enquiry would have been ordered. Hence if the matter had been brought to the notice of the High Court at the earliest stage the proceeding would have been quashed and an enquiry would have been ordered. This is what happened in the cases reported in AIR 1931 56a (Lahore), In Re: Darapureddi Jaggu Naidu and Others, and AIR 1940 Sind 213. But the position may become somewhat different if no objection is taken on this score at the earliest stages of the trial and the trial is allowed to proceed and end in the conviction of the accused. In such an event it may be held that non-compliance with the provisions of Section 10 of the Child Marriage Restraint Act did not vitiate the trial. In AIR 1939 Pat the High Court refused to set aside a conviction merely on the ground that a preliminary enquiry was not made because the accused did not raise any objection on that ground at the earliest stage. Similarly, in AIR Nag 375 the Court refused to set aside an order of conviction merely because the mandatory provisions of the aforesaid Section 10 were not complied with. As pointed out in the aforesaid Patna case the whole object of holding a preliminary enquiry u/s 202, Code of Criminal Procedure is to assertion whether there is a prima facie case against the accused and save a party from unnecessary harassment arising out of trial. But once the trial has taken place and the accused has been convicted and the accused did not object to the trial at the earliest stage it is obvious that there is not only a prima facie case against him but the case has been also well proved and it cannot be said that the trial and conviction are invalid merely on account of the omission to hold a preliminary enquiry u/s 202, Code of Criminal Procedure. The preliminary enquiry contemplated by Section 10 of the Child Marriage Restraint Act is mainly in the interest of the accused but if he would not raise this objecting at the earliest opportunity it cannot be said that any prejudice has been caused to him and non-compliance with that section would not render all further proceedings void as being without jurisdiction. 7. 7. Here when the Magistrate on 7-5-1960 decided to dispense with a preliminary enquiry and summoned the accused and the latter appeared before him on 23-6-1960 they should have objected. Had they raised the objection at that time the Magistrate might have reconsidered his previous order and sent the case for enquiry. On the other hand by pleading not guilty the Petitioners allowed the trial to proceed. Subsequently when on 14-10-1960 the Magistrate felt some doubt about the legality of the trial he heard the parties and on 5-1-1961 passed an order relying on AIR 1940 375 (Nagpur) holding that the omission to hold the preliminary enquiry was an irregularity. Against this order the Petitioners could have come up to this Court in revision. But they kept quiet and allowed the trial to proceed further. Under these circumstances, I would hold following the aforesaid Nagpur and Patna view that though an irregularity has been committed, no prejudice has been caused to the Petitioners and that the conviction and sentence cannot be set aside on this ground alone. There is really no conflict between the aforesaid two decisions on the other hand the other three decisions cited on the other which all dealt with cases where the matter was brought to the notice of the superior courts at the earliest opportunity before the trial commenced, or proceeded with. 8. The second contention of Mr. Pal however seems correct. Section 5 of the Child Marriage Restriant Act penalises persons who solemnise the marriage whereas Section 6 is the penal section affecting the parent or guardian of the child whose marriage is performed in contravention of the provisions of that Act. Here there is no finding that the groom was a child within the meaning of the Act and hence his father cannot be convicted u/s 6 of that Act. Nor can he be convicted u/s 5 in view of Public Prosecutor Vs. Thammanna Rattayya and Others, and Emperor Vs. Fulabhai Bhulabhai Joshi where it was held that the parents of the bride and the bridegroom cannot be convicted u/s 5 but only u/s 6 of the aforesaid Act. 9. For these reasons, I set aside the conviction and sentence passed on Petitioner Banchhanidhi Nayak and acquit him. I however maintain the conviction of Jogendra Lenka, but I do not think that this is a fit case for sending him to jail. 9. For these reasons, I set aside the conviction and sentence passed on Petitioner Banchhanidhi Nayak and acquit him. I however maintain the conviction of Jogendra Lenka, but I do not think that this is a fit case for sending him to jail. The substantive sentence of imprisonment passed on him is therefore set aside, but the sentence of fine of Rs. 50/- passed on him for that offence is maintained; in default of payment of fine he shall under go S.I. for one month. The revision is thus allowed in part. Revision allowed in part. Final Result : Allowed