STATE OF GUJARAT Vs. PATEL JIVRAJ KHIMJI
LAWS(GJH)-1966-1-11
HIGH COURT OF GUJARAT
Decided on January 27,1966

STATE OF GUJARAT Appellant
VERSUS
PATEL JIVRAJ KHIMJI Respondents

JUDGEMENT

N.G.SHELAT - (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. 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. 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.;


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