STATE OF GUJARAT v. PATEL JIVRAJ KHIMJI — 1966 DIGILAW 10 (GUJ)

N. G. SHELAT, J. ( 1 ) THE facts giving rise to this appeal broadly stated are that a complaint dated 14-4-64 was filed by the P. S. I. Lakhpat on behalf of the State against the respondents for the offences under secs. 5 and 6 of the Child Marriage Restraint Act (XIX of 1929) in the Court of the Judicial Magistrate First Class at Nakhatrana in the District of Kutch. That appears to have been received by the office of the learned Magistrate on 17-4-64. The complaint was registered and the learned Magistrate passed an order directing the summons to issue against the accused referred to therein on 2-5-64. The allegations in the complaint show that all the accused had brought about and solemnised a child marriage at the village Dayapur. The accused Nos. 1 and 2 are the father and mother respectively of the bridegroom who was below 18 years of age at the time of his marriage and that way a child as contemplated under sec. 2 (a) of the Act. The accused Nos. 3 and 4 are the father and mother respectively of the bride. The accused No. 6 had officiated as a priest at the time of the marriage. The accused No. 5 is said to have participated and assisted in the child marriage. It is that way that accused Nos. 1 to 5 were said to have committed an offence under sec. 6 of the Act. The accused No. 6 is said to have committed an offence under sec. 5 of the Act. ( 2 ) ON 19-6-64 an application came to be given by the accused inter alia stating that since one year had already elapsed after the solemnizing of the marriage the complaint filed after that period was not tenable in view of sec. 9 of the Act. Instead of considering that aspect of the matter the learned Magistrate raised a preliminary point regarding the maintainability of the complaint in view of the non-observance of the provisions contained in sec. 10 of the Child Marriage Act. He found that his predecessor-in-office committed an illegality in issuing a process against the accused without holding a preliminary inquiry contemplated under sec. 10 of the Act. Since in his view that provision was mandatory the non-observance thereof vitiated all the subsequent proceedings. He also found that the provisions contained in sec. 10 of the Child Marriage Act. He found that his predecessor-in-office committed an illegality in issuing a process against the accused without holding a preliminary inquiry contemplated under sec. 10 of the Act. Since in his view that provision was mandatory the non-observance thereof vitiated all the subsequent proceedings. He also found that the provisions contained in sec. 537 of the Criminal Procedure Code would not apply so as to cure the illegality committed in that respect. In those circumstances he dismissed the complaint and the accused were acquitted under sec. 245 (1) of the Criminal Procedure Code. Feeling dissatisfied with that order passed on 23rd July 1964 by Mr. J. C. Desai Judicial Magistrate First Class Nakhatrana the State has come in appeal. ( 3 ) SEC. 10 of the Child Marriage Restraint Act provides that any Court on receipt of a complaint of an offence of which it is authorised to take cognizance shall. unless it dismisses the complaint under sec. 203 of the Code of Criminal Procedure 1898 (V of 1898) either itself make an inquiry under sec. 202 of that Code or direct a Magistrate subordinate to it to make such inquiry. This provision does therefore require the Magistrate himself to make an inquiry under sec. 202 of the Criminal Procedure Code and in absence of any such preliminary inquiry done by himself the process issued against the accused would not be justifiable in law. The inquiry having been made by the Police Officer before he lodged his complaint on behalf of the State would not help the prosecution to say that an inquiry under sec. 202 of the Criminal Procedure Code was done. That inquiry has to be subsequent to the filing of the complaint and much though sec. 202 of the Criminal Procedure Code contemplates the inquiry to be done by either the Magistrate or by any other Magistrate subordinate to him or by a Police Officer or by such other person as he thinks fit it cannot help the prosecution in saying that the compliance of sec. 10 of the Child Marriage Restraint Act was made by the learned Magistrate. It provides that an inquiry is to be made by himself or by any Magistrate subordinate to him. 10 of the Child Marriage Restraint Act was made by the learned Magistrate. It provides that an inquiry is to be made by himself or by any Magistrate subordinate to him. There are no other words qualifying or helping the prosecution to say that the inquiry can as well be done by any other person or by the Police Officer as contemplated under sec. 202 of the Criminal Procedure Code. The inquiry required to be made under this Act is for the purpose of ascertaining the truth or falsehood of the complaint and the legislature has desired it to be made by the Magistrate in view of the fact that proper judicial inquiry is made in respect of such offences before process should be issued against the accused or any of them in the case. The satisfaction of the Magistrate is considered essential under sec. 10 of the Act and that appears to be of a mandatory character. Not having held any such preliminary inquiry as required under sec. 10 of the Act would amount to ignoring of the provisions contained in sec. 10 of the Act. The order of issuing process against the accused was therefore no doubt bad inasmuch as such requirement was not complied with. Such a view has been taken in a case In re Darapureddi Jaggu Naidu and others A. I. R. 1939 Madras 530 where it was held that a preliminary inquiry is absolutely necessary before the Court can take cognizance of an Offence under the Act. Sec. 10 is very clear on the point and the provisions of it are mandatory. The issue of process implies that cognizance was taken without any preliminary inquiry being held as required by sec. 10 and that way it was unauthorized by law and is therefore liable to be set aside In that case after setting aside the order it was observed that it would be open to the Magistrate to hold the preliminary inquiry under sec. 202 of the Criminal Procedure Code. That part of the order passed by the learned Magistrate is therefore proper and the effect thereof would be to set aside the order of issuing process to the accused in respect of the complaint filed in his Court. ( 4 ) IT was contended by Mr. Choksi the learned Govt. 202 of the Criminal Procedure Code. That part of the order passed by the learned Magistrate is therefore proper and the effect thereof would be to set aside the order of issuing process to the accused in respect of the complaint filed in his Court. ( 4 ) IT was contended by Mr. Choksi the learned Govt. Pleader that non-compliance of such a provision by the learned Magistrate before issuing process against the accused in the case was merely an error or an omission and since there has been no failure of justice it was curable under sec. 537 (a) read with the Explanation thereto. On the other hand it was urged by Mr. Shelat that the provisions contained in sec. 537 of Criminal Procedure Code would not apply inasmuch as the inquiry required to be made was under the special law such as the Child Marriage Restraint Act. According to him even though the inquiry has to be made as contemplated in sec. 202 of the Criminal Procedure Code that inquiry is directed to be made under sec. 10 of the Act and consequently sec. 537 would not be of any help to the appellant. I do not think there is any force in that contention for the simple reason that the provisions contained in the Criminal Procedure Code would apply to all offences under any law in view of sec. 5 of the Criminal Procedure Code. Sec. 5 (1) says that all offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions hereinafter contained. Sub-sec. (2) of sec. 5 then says that all offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences. The offences falling under the Special Act such as the Child Marriage Restraint Act can therefore be investigated inquired into tried and otherwise dealt with according to the provisions of the Criminal Procedure Code though no doubt that shall be subject to the provisions of that enactment regulating the manner or place of investigating etc. The only manner in which the inquiry is required to be regulated by sec. The only manner in which the inquiry is required to be regulated by sec. 10 of the Act is by saying that it shall be made by the Magistrate himself or by any other Magistrate subordinate to him subject to that the inquiry has to be made under sec. 202 of the Criminal Procedure Code. It is therefore clear that the provisions of the Criminal Procedure Code would apply and consequently there is no reason why sec. 537 cannot apply to such an inquiry. In this connection a case of Emperor v. Mehtar Dhanva and others A. I. R. 1940 Nagpur 375 was referred to by the learned Govt. Pleader for showing that the failure to hold preliminary inquiry as contemplated under sec. 10 of the Child Marriage Restraint Act read with sec. 202 of the Criminal Procedure Code amounted to an irregularity which can be cured under sec. 537 of the Criminal Procedure Code. In that case it was observed that where at the stage when the preliminary enquiry should have been made the Court had already legally taken cognizance of the offence and had already registered the case and examined the complainant as required by sec. 200 Criminal P. C it has seizing of the case and is competent to try it and the failure to hold preliminary enquiry under sec. 202 although an irregularity being a non-compliance with a mandatory provision of law is one of procedure only It is one in the exercise of jurisdiction and could not destroy the competent jurisdiction which the Court already had. The irregularity can be cured by applying sec. 537 Criminal P. C. In the present case it is no doubt true that the Court was seized of the case inasmuch as it had taken cognizance of the complaint and issued summons to the accused. It is also true that the matter was adjourned for some time on one ground or the other and the only point that was raised before the learned Magistrate was that the complaint was time barred inasmuch as one year had elapsed after the solemnisation of the marriage which had taken place in contravention of the provisions of the Child Marriage Restraint Act. Instead of considering that point the learned Magistrate found that there was some mistake committed by his predecessor-in-office and since that in his view was an important omission in complying with the provisions of sec. 10 of the Act he heard the learned pleaders of the parties and decided that preliminary point. Thus no such point was at all raised by the accused at that stage. It is also true that the trial has not taken place so far and there is no question of any prejudice to the accused. With all that it is difficult to say that it was merely a procedural irregularity curable in sec. 537 of the Criminal Procedure Code. It was obviously a contravention of a mandatory provision contained in sec. 10 of the Act and that way an illegality which would vitiate the order of issuing process against the accused in the case. With respect therefore I am unable to agree with the view in that case that the defect was one of mere procedure and that way an irregularity curable under sec. 537 of the Criminal Procedure Code even though no prejudice would be caused if the case were to proceed further. ( 5 ) BUT that does not prevent this Court from exercising its inherent power under sec. 561a of the Criminal Procedure Code for securing ends of justice in a case of this kind and set aside the order issuing process against the accused and direct the learned Magistrate to make an inquiry himself under sec. 10 of the Act read with sec. 202 of the Criminal Procedure Code and then if he is satisfied with the truth of the complaint may issue process against them or any of them in accordance with law. That cannot prejudice the accused in any manner. Interests of justice do require that if in fact any such offence has been committed by the accused or any of them they should be dealt with in accordance with law. ( 6 ) THE order of acquittal passed by the learned Magistrate is set aside. The order of issuing of process passed by the learned Magistrate against the accused issue also set aside. The learned Magistrate himself shall hold a preliminary inquiry as contemplated under sec. 10 of the Child Marriage Restraint Act read with sec. ( 6 ) THE order of acquittal passed by the learned Magistrate is set aside. The order of issuing of process passed by the learned Magistrate against the accused issue also set aside. The learned Magistrate himself shall hold a preliminary inquiry as contemplated under sec. 10 of the Child Marriage Restraint Act read with sec. 202 of the Criminal Procedure Code and on his being satisfied about there being a prima facia case justifying him to issue process against the accused he shall proceed therewith in accordance with law. Order accordingly. .