Kunhabdulla and Others vs Kunhammed

Chettur Sankaran Nair, J.—Petitioners, accused of offences under Sections 4 and 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 25th April 1986. Complaint was filed on 22nd April 1987 and summons was issued on 28th April 1987.

Learned Counsel for Petitioners states that there was no enquiry u/s 10 of the Act, that the basic ingredients of the offence are not disclosed, and that complaint is barred by limitation.

An enquiry u/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 overzealous or even unscrupulous elements, taking recourse to it cannot be lost sight of. Section 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 Section 200 enquiry, an enquiry u/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, Magistrate 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 saying that magistrates should adopt rigorous standards. Magistrates enjoy vast 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 and Others Vs. Maharaj Singh and Another, . There was no such enquiry, though Counsel for Respondent would attempt to make out 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 u/s 200 of the Code.

I am inclined to agree with the contention that the basic ingredients of the offence, namely, age etc., have not been satisfactorily alleged. There is no reference to any material regarding the age of Remla. There is a vague allegation that Remla is 13. To fortify this, Annexure F reply notice issued by Advocate for A-4, stating that Remla is 15, is relied on. Notice further states that Remla 15 is not married, but only betrothed. If Annexure F is relied on, that would demolish the case of the complainant. It must be accepted in whole, or not at all. Complainant cannot treat a part of it as true, and rest untrue.

Question then is, whether complaint is barred by limitation u/s 9. If cognizance was taken on 28th April 1987, then it would be outside one year of the alleged marriage, attracting the bar of limitation. It is not every act of the Magistrate in regard to a complaint that amounts to cognizance R.R. Chari Vs. The State of Uttar Pradesh, When the Magistrate issues summons, he takes cognizance. In A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another, Supreme Court said:

After examining the complaint on oath and after examining the witnesses present, if any, it would be open to the Court to judicially determine whether a case is made out for issuing process. When it is said that Court issues process, it means that Court has taken cognizance.

(Emphasis supplied)

It is the application of judicial mind to the averments in the complaint, that constitutes cognizance. Such could be inferred from the fact of issue of process. Applying this principle, it must be held that the Magistrate took cognizance on 28th April 1987 beyond one year of the alleged offence; and this he did, without complying with the mandate of Section 10.

For these reasons complaint must be quashed and it is accordingly quashed.