EMPEROR Vs. MEHTAR DHANWA SATNAMI

JUDGEMENT

(1.) THE Additional Sessions Judge, Bilaspur, reports this case in which there was an omission to comply with Section 10, Child Marriage Restraint Act, which lays down that the Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under Section 203, Criminal P.C., either itself make an enquiry under Section 202 of that Code or direct a Magistrate of the First Class subordinate to it to make such enquiry. This case was tried out without the question of preliminary enquiry being raised at all, and three accused have been fined sums ranging from Rs. 13 to Rs. 22. In the reference reliance is placed on Gujai v. Bhagwandas (1937) 20 NLJ 115 and it is submitted that this omission is an illegality which vitiates the whole proceedings. In that case it was held that the District Magistrate had deliberately disregarded the provisions of the law, and that such a case of disregard of a mandatory provision of the Criminal Procedure Code could not be cured by Section 537, Criminal P.C. There was a further irregularity in that case in failing to give reasons for waiving security and the District Magistrate wrote two judgments on different dates in the same case. The present case is distinguishable in that only this one irregularity is alleged, and there is nothing to show that the omission was deliberate.

(2.) IN support of the reference reliance is placed also on In re Jaggu Naidu AIR 1939 Mad 530. The Judge there said that a preliminary enquiry is absolutely necessary before a Court can take cognizance of an offence under the Act. The issue of process was therefore set aside, and the case was remanded for the holding of a preliminary enquiry. Mangal v. Kalu AIR (1931) Lah 56 was a similar case in which before proceedings with the trial the Magistrate himself noticed that he had not complied with the provisions of Section 10. He therefore made the reference, and the case was remitted for a preliminary enquiry. In Emperor v. Chand Mal AIR 1934 Lah 155 we have also a similar case which had not proceeded to judgment. I am also referred to Kaluram Daga v. Emperor AIR 1933 Cal 433. That case however dealt with Section 11(1) of the Act, and the material irregularity was held to be fatal seeing that the right of the accused to get compensation was not kept in view, that is, the accused was prejudiced. That case, therefore, is not helpful.

(3.) I have no doubt that it is proper in revision to send a case back for correction of such an illegality when that can be done before the case is tried, but after judgment has been delivered the position is different. It would be harrassing then to remand the case and start proceedings with a preliminary enquiry all over again. On the other hand, should the conviction be set aside in a case in which the complainant has been fully proved ? I am clear that this omission in the proceedings before the trial has not occasioned a failure of justice. Section 537, Cr. P.C., itself lays down that it must be found that a failure of justice has in fact occurred and that it is relevant for the Court to consider whether the objection could or should have been raised at an earlier stage in the proceedings. That could have been done here. I am therefore reduced to this position that I must apply Section 537, Cr. P.C., unless the effect of the omission is that the judgment was not passed by a Court of competent jurisdiction. That seems to have been the view taken in In re Jaggu Naidu 26 AIR 1939 Mad 530 above referred to where Pandurang Row J. said that a preliminary enquiry was absolutely necessary before the Court can take cognizance of an offence under the Act.