JAGADEESA THEVAR Vs. RAJABAKIYA THEVAR

JUDGEMENT

(1.) THESE 11 petitioners seek to revise the order of the Sub Magistrate, Pattukottai, who has conducted an enquiry Under Section 202, Cr. PC by the examination of P. Ws. 1 and 2. P. W. 1, Rajabakiya Thevar is the complainant. His complaint was taken on file for offences Under Sections 4 and 5 of the Child Marriage Restraint Act (Act No. 19 of 1929) by the Sub Divisional Magistrate, Mannargudi Under Section 10 of the said Act. On receipt of a complaint by P. W. 1, the Sub Divisional Magistrate directed the Sub Magistrate, Pattukottai to make an enquiry Under Section 202, Criminal P. C. The said Magistrate completed the enquiry Under Section 202 and ultimately found that there is sufficient evidence in the case and that the accused shall stand their trial in the court of the learned Sub Divisional Magistrate, Mannargudi. It is against this order that this revision petition is directed.

(2.) MR. R. G. Rajan, the learned Counsel for the petitioners argued that the Sub Divisional Magistrate took cognisance and issued process against the accused petitioners and that the issue of process is clearly not authorised by law and such illegality vitiates the order of the Sub Magistrate. In support of this argument, the learned Counsel cited the authority reported in the State of Gujarat v. Jivraj Khimji, ILR (1966) Guj 815 and also the ruling reported in Jaggu Naidu In re, 1939-1 Mad LJ 900 : A. I. R. 1939 Mad 530. It is not clear from the later decision of Pandrang Row, J. when the learned Judge observes that 'the issue of process implies that cognisance was taken without any preliminary enquiry being held as required by Section 10, that the process cannot be issued at ail. If the learned Judge meant that process to the person complained against was issued and in that sense cognisance was taken, it was still open to the Sub-Divisional Magistrate or the Joint Magistrate to hold a preliminary enquiry as contemplated Under Section 202, Cr. PC I am unable to see as to how the issue of process is therefore unauthorised by law. With great respect to the learned Judge I am unable to follow the reason found in the judgment of Pandrang Row, J. in 1939-1 Mad LJ 900 : A. I. R. 1939 Mad 530.

(3.) SHELAT, J. held in ILR (1966) Guj 815 that "as the satisfaction of the Magistrate is considered essential Under Section 10 of the Act, this provision is of a mandatory character; and in the absence of any such preliminary inquiry made by the Magistrate the process issued against the accused would not be justified in law. " The learned Judge further held that it is not possible to regard the breach of the mandatory provision of Section 10 of the Act as a procedural irregularity curable Under Section 537 of the Criminal P. C. even though no prejudice is caused to the accused. It was also held that the contravention of the mandatory provision contained in Section 10 of the Act would amount to an illegality which would vitiate the order of issuing process against the accused in the case. The learned Judge further observed that the High Court, however, would have the power to direct the Magistrate to make an enquiry himself Under Section 10 of the Act read with Section 202 of the Criminal P. C. , and then if he is satisfied with the truth of the complaint, to issue process against the accused. I am unable to see as to how this decision is of any assistance to the petitioners in view of the completion of the preliminary enquiry by the Sub Magistrate, Pattukottai.