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1984 DIGILAW 337 (RAJ)

NANA LAL v. STATE OF RAJASTHAN

1984-08-02

K.S.LODHA

body1984
Judgment K. S. LODHA, J. ( 1 ) THE brief facts giving rise to this application under section 482 Cr. P. C. are that on 12. 5. 82, one Madan Lal Sehlot filed a complaint against the present petitioners and Marriage Restraint Act and (hereinafter called the Act alleging that the marriages of the two daughters, Kumari Manju and Kumari Baby alias Sheela, of the petitioners Nos. 1 and 2 aged about 12 and 8 respectively, who were living under the guardianship of the petitioners Nos. 1 and 2, were performed by the petitioners with two minor boys. sons of petitioners Nos. 3 and 4 and thus they contravened the provisions of the Act. It was also alleged that some other accused persons had also participated in those marriages and, therefore, they were also guilty. It was further contended in the complaint that the matter had been brought to the notice -of the police and the police had investigated the same but did not take any action of filing the challan and, therefore, the complaint was being filed. On this complaint, the learned Munsif Magistrate, Rajsamand, by his order dated 12. 5. 82 directed that the matter may be fixed for enquiry under sections 200 and 202 Cr. P. C. on 27. 5. 82. ( 2 ) ANOTHER complaint had also been filed by one Ramchandra Paliwal on 13. 5. 82 before the same court against these accused persons in relation to the same matter. It further appears that the police was also investigating the matter and later the police submitted a report that although a case was made out against the accused Kani Ram alias Kishan Lal, Mitha Lal and Nana Lal, a challan could not be submitted in time and the limitation had expired and, therefore, a final report was being submitted. This matter pertained to the jurisdiction of the learned Munsif and Judicial Magistrate, Railmagara but since the Presiding Officer of that court was not functioning,. the complaint had been filed. before the learned Munsif and Judicial Magistrate, Rajsamand, who had passed the order dated 12. 5. 82. Thereafter the matter came before the learned Munsif and Judicial Magistrate, Railmagara. On the submission of this report by the police, the learned Magistrate appears to have noted under section 210 Cr. the complaint had been filed. before the learned Munsif and Judicial Magistrate, Rajsamand, who had passed the order dated 12. 5. 82. Thereafter the matter came before the learned Munsif and Judicial Magistrate, Railmagara. On the submission of this report by the police, the learned Magistrate appears to have noted under section 210 Cr. P. C. and directed issue of process against the accused Nana Lal, pyari Bai, Kani Ram alias Kishan Lal and Mitha Lal. Aggrieved of this order of the learned Munsif and Judicial Magistrate, Railmagara dated 14. 10. 82, the accused-petitioners filed a revision before the learned Addi. Sessions Judge, Rajsamand, challenging the order of the learned Magistrate issuing process against the accused persons on various grounds. The learned Add!. Sessions Judge, Rajsamand after hearing the parties, rejected the revision by his order dated 6. 2. 84. Hence, this application. ( 3 ) I have heard the learned counsel for the parties and also the learned Public Prosecutor and have gone through the record. ( 4 ) A number of contentions have been raised before me by the learned counsel for the petitioners. I shall deal with them one by one. ( 5 ) THE first contention of the. learned counsel for the petitioners is that under section 10 of the Act only an authorised Magistrate Can take cognizance of the matter. In this case, the matter pertained to the jurisdiction of the Munsif and Judicial Magistrate, Railmagara, and, therefore, only that court could have taken cognizance of the offence and not the Munsif and Judicial Magistrate, Rajsamand. I do not find force in this contention. There is an order of the learned Sessions Judge, Udaipur, dated 12. 4. 82 directing the charge of the court of Munsif and Judicial, Magistrate, Railmagara, to be taken over by the Munsif and Judicial Magistrate, Rajsamand as has been referred to in the order of the learned Addi. Sessions Judge. When the Munsif and Judicial Magistrate, Railmagara, was not functioning and the charge of that court was with the Munsif and Judicial Magistrate, Rajsamand, he was certainly entitled to entertain the complaints pertaining to the jurisdiction of the Munsif Magistrate, Railmagara, and, therefore, he being a Judicial Magistrate must be deemed to be a Magistrate authorised under section 8 of the Act. No other provision of any special authorisation under the Act has been brought to my notice. No other provision of any special authorisation under the Act has been brought to my notice. It, therefore, cannot be held that the action of the learned Munsif and Judcial Magistrate, Rajsamand, was without jurisdiction. ( 6 ) THE second contention of the learned counsel for the petitioners is that in this case, the learned Munsif and Judicial Magistrate, Railmagara, had directed issue of process against the accused persons on 14. 10. 82 and, therefore, he must be deemed to have taken cognizance of the offence only on that date, but by that time, the limitation of one year had already expired and, therefore, the learned Magistrate could not have taken cognizance of the offence and could not have issued process against the accused persons. This contention also, to my mind, is devoid of force inasmuch as it clearly appears from the order of the learned Munsif and Judicial Magistrate, Rajsamand, dated 12. 5. 82 that he had taken cognizance of the matter when he directed that the case may be fixed for enquiry under sections 200 and 202 Cr. P. C. when a Magistrate applies his mind to the complaint filed before him and directs further enquiry, he certainly takes cognizance of the offence at that time and it is not that only when the Magistrate directs issue of process against the accused persons that cognizance can be said to have been taken. The law in this respect is well settled and I shall refrain from refrain to any Authority. The view taken by the learned Addi. Sessions Judge in this respect is therefore, correct ( 7 ) THE third contention of the learned counsel for the petitioners is that although the enquiry under sections 200 and 202 had been ordered by the learned Munsif and Judicial Magistrate, Rajsamand, no such enquiry was ever held and when the police filed a final report, the learned Magistrate issued process on the basis of that report. According to the learned counsel this procedure adopted by the learned Munsif and Judicial Magistrate, Railmagara, was against the provisions of section 10 of the Act inasmuch as under section 10 of the. Act, when cognizance is taken on the basis of a complaint, the Magistrate has himself to make the enquiry as envisaged under sections 200 and 202 Cr. P. C. and he cannot direct the police investigations. Act, when cognizance is taken on the basis of a complaint, the Magistrate has himself to make the enquiry as envisaged under sections 200 and 202 Cr. P. C. and he cannot direct the police investigations. In this connection, the learned counsel placed strong reliance upon In re Jaggu Naida and Emperor v. Mohammed Hashim. 2 He further contended that when a particular mode for doing a certain thing if prescribed by certain enactment, it must be deemed that the other modes of doing that thing are forbidden and the court cannot adopt any other mode except the one prescribed under the Act. In this connection, - he placed reliance upon State of Uttar Pradesh v. Singhara Singh. 3 On the other hand, the learned counsel for the complainant, urged that although under section 10 of the Act, a Magistrate taking cognizance on the basis of a complaint has to make an enquiry under sections 200 and 202 Cr. P. C. himself but when section 202 permits the Magistrate to direct an investigation to be made by a police officer and under section 7 of the Act, police investigation is not prohibited as the offence has been made cognizable for certain purposes, the learned Magistrate cannot be said to have committed any illegality in issuing process against the accused persons on the basis of the police report. It was further contended by the learned counsel for the non-petitioners that when the learned Magistrate looked into the police papers, he must be deemed to have complied with the provisions of section 202 Cr. P. C. because an enquiry does not necessarily-mean examining the witness but it - only required the learned Magistrate to satisfy, himself that prima facie there is ground to proceed against the accused person. ( 8 ) I have given my careful consideration to the rival contentions. Section 10 of the Act runs as below: 10. Preliminary inquiries into offences. 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 section 203 of the Code of Criminal Procedure, 1973, either itself make an inquiry under section 202 of that Code or direct a Magistrate Subordinate to it to make such inquiry. Preliminary inquiries into offences. 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 section 203 of the Code of Criminal Procedure, 1973, either itself make an inquiry under section 202 of that Code or direct a Magistrate Subordinate to it to make such inquiry. ( 9 ) LOOKING to the phraseology used in section 10 of the Act, I am inclined to agree with the learned counsel for the petitioners, when section 10 clearly provides that the enquiry has to be made by the learned Magistrate himself, the other mode of investigation through- the police agency provided u/s, 202 must be deemed to be prohibited. If the intention of the legislature while framing section 10 of the Act was to give the Magistrate all the powers envisaged u/s. 202 Criminal Procedure Code, then there was no reason for using this restricted phraseology in this section and a bare reference to section 202 Criminal Procedure Code in section 10 of the Act would have been sufficient. In this view of the matter, I am inclined to agree with the view expressed by the Madras and Sind courts in In re Jaggu Naidus case (supra) and Emperors case (supra) respectively. This view also stands supported by the principles enunciated by their Lordships of the Supreme Court in State of Uttar Pradeshs case (supra ). I am, therefore, clearly of the opinion that the learned Magistrate could not have acted on the police report in issuing process against the accused persons unless he had made the enquiry under sections 200 and 202 Criminal Procedure Code himself as envisaged by section 10 of the Act and, therefore, this action of the learned Magistrate being clearly in contravention of the mandatory provisions of section 10 of the Act, cannot be maintained. To this extent, the application of the petitioner deserves to be accepted. In this view of the matter, the order issuing process against the accused persons will have to be set aside and the matter sent back to the learned Magistrate for making an enquiry under sections 200 and 202 Criminal Procedure Code; The learned Additional Sessions Judge does not appear to have adverted to this aspect of the matter probably because it was not raised before him. However, since the matter goes to the very jurisdiction of the learned Magistrate, it cannot be ignored. ( 10 ) I, therefore, partly allow this application, set aside the order of the learned Munsif and Judicial Magistrate, Railmagara, dated 14/10/1982. The learned Magistrate is directed to make an enquiry under sections 200 and 202 Criminal Procedure Code himself u/s, 10 of the Act and then proceed in accordance with the law. The parties are directed to appear before the learned Munsif and Judicial Magistrate, Railmagara on 10/9/1984. Application partly allowed.