KUNHABDULLA Vs. KUNHAMMED

JUDGEMENT

(1.) Petitioners, accused of offences under S.4 & 5 of the Child Marriage Restraint Act, seek to quash the charges against them. Allegation in the complaint is that petitioners got 13 year old Remla married on 25-4-1986. Complaint was filed on 22-4-1987 and summons was issued on 28-4-1987.

(2.) Learned counsel for petitioners states that there was no enquiry under S.10 of the Act, that the basic ingredients of the offence are not disclosed, and that complaint is barred by limitation.

(3.) An enquiry under S.10 of the Act is mandatory (Moidu v. Mayan 1983 KLT 782 ). While the Act aims to contain, or eradicate a social evil, the possibility of over zealous or even unscrupulous elements, taking recourse to it cannot be lost sight of. S.10 is a safeguard to ensure magisterial muster before an allegation breathes into life as a charge. Private causes cannot be orchestrated into public causes. More than a S.200 enquiry, an enquiry under S.202 is a prelude to a charge. Magistracy must guard itself against its instrumentality being converted into a persecutionary measure. Few things are easier than making allegations. Human nature being what it is, not all allegations need be true. A refinement has been achieved by evolving a processing system, by investigation by an independent agency or a magisterial enquiry before an allegation is made an accusation in law. In case of private complaints, magistrates must be satisfied that a complaint deserves to be proceeded with. If every complaint is to be accepted on its face value, it can open the floodgates causing an inflow of frivolous complaints. The magistrate must reach a reasonable degree of subjective satisfaction before he proceeds to issue summons. He must ask himself the question, if the complaint deserves to be proceeded with. When questions are not asked, the answers could be forgotten. I am not laying that magistrates should adopt rigorous standards. Magistrates enjoy vest discretion in this area. I only say that they must satisfy themselves, subjectively though, that there is a case to proceed with to ensure that utterly unmerited allegations are not cognized. There must be judicial application of mind before issuing summons. If that is not done, the jurisdiction of Criminal Courts, could be lightly invoked by disgruntled persons to give vent to private vengeance, (Chandrapal Singh v. Maharaj Singh AIR 1982 SC 1238 ). There was no such enquiry, though counsel for respondent would attempt to make cut that there was one. Counsel referred to an Annexure D deposition of a witness. It is stated in Annexure D that it is a statement recorded under S.200 of the Code.