MAHADEO SINGH Vs. GAJE SINGH

JUDGEMENT

(1.) THIS revision petition is directed against the order of the learned A.C.J.M., Neem -ka -Thana, dated January 16, 1985, by which he has directed that cognizance be taken against two accused under Section 5/6 of the Child Marriage Restraint Act and they have been directed to be summoned.

(2.) THE facts of the case in brief are that on 5th May, 1984, the non -petitioner Gaje Singh, filed a complaint in the Court of A.C.J. M., Neem -ka -Thana, on the allegations that Rohitash s/o Mahadeo Singh and Smt. Bodi. and Santosh, daughter of Surja Ram, who were both about 11 -12 years of age were married on 9th May, 1983. The social reformers tried to intervene in the matter but the parents of the boy and girl did not agree and performed the marriage. A complaint was, therefore, filed to prosecute those persons under Sections 5 and 6 of the Child Marriage Restraint Act, (here in after referred to as the Act). Upon this complaint, it was ordered by the learned A.C.J.M. that it may be put up on 17th May, 1984, for recording the statement of the complainant. The statement of the complainant was recorded on this date and 6th June, 1984, was fixed for recording the statement of witnesses. Eventually the witnesses were examined on 6th November, 1984, and arguments were heard on January 16,1985, when the impugned order was passed. The main question in this petition, is as to when cognizance of the offence was taken by the learned Magistrate. The offences under Sections 5 and 6 of the Child Marriage Restraint Act are punishable with imprisonment upto three months and under Section 468(2)(b), no Court can take cognizance of an offence after the expiry of period of limitation, which in the present case is one year. The complaint was presented on 5th May, 1984, i.e. within a period of one year and it is to be seen as to when the learned Magistrate took cognizance of the offence made out in the complaint presented by the respondent. The learned Counsel for the petitioner has contended that in the order dated January 16, 1985, it has been specifically ordered by the learned Magistrate that on perusal of the record, it appears that prima facie case under Sections 5 and 6 of the Act is made out and he takes cognizance against two accused for the above offences. According to the learned Counsel for the petitioner, it has been specifically stated in the order that the Magistrate is taking cognizance against two accused persons and as such it can be said that the cognizance was taken only on 16 -1 -1985 and not before that. As against this the contention of the learned Counsel for the respondent is that cognizance was taken by the Magistrate as soon as he found that the complaint disclosed the commission of an offence and he proceeded to make an inquiry under Section 200 of the Criminal Procedure Code.

(3.) IN R.R. Chari v. The State of Uttar Pradesh : 1951CriLJ775 , the applicant was suspected to be guilty of certain offence under the Prevention of Corruption Act. The police applied for warrant of his arrest under Section 3 of the Prevention of Corruption Act and continued investigation. Subsequently, sanction for prosecution was obtained and the appellant was challaned. His contention was that the Court took cognizance of the offence on the date when warrant for his arrest was issued and as on that day, there was no sanction of the Government for his prosecution, therefore, the initiation of the prosecution against him, without the sanction of the Government was illegal. In such circumstances, considering the provisions of Section 190, it was held as under: