Pt. Harihar Tiwari vs Etwari Gop and Another

Agarwala, J.—The opposite party Etwari Gop and Pairu Gop were convicted by the Sub-divisional Magistrate of Bihar u/s 6(1), Child Marriage Restraint Act on a finding that they had brought about the marriage of Etwari''s son, aged 11 with Pairu''s daughter, aged 6. On appeal, the learned Sessions Judge of Patna set aside the conviction on the ground that the Magistrate who entertained the complaint and convicted the accused persons, had not complied with the provisions of Section 10 of the Act. That Section provides:

The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint u/s 203, Criminal P.C., 1898, either itself make an inquiry u/s 202 of that Code, or direct a Magistrate of the First Glass subordinate to it to make such inquiry.

It is quite clear that the object of this provision is that no one should be harassed by a prosecution under the Act until a Magistrate has satisfied himself by inquiry that there is a prima facie case against him. The object of the preliminary inquiry is therefore to inquire whether there is a prima facie case or not. Now in the present proceedings not only has the Magistrate found that there was a prima facie case but by reason of the fact that the trial has actually been held he has found that the offence charged has been established conclusively by the evidence that was available. In these circumstances, it is impossible to take the view that the order of the Magistrate must be set aside for the technical reason given by the Sessions Judge. By that I do not mean that Magistrates are entitled to disregard the provisions of Section 10. If the accused in this case had objected to being tried until a preliminary inquiry had been made, the Magistrate would have been bound to make such an inquiry, and if he had proceeded in disregard of the objection of the accused, his order would have had to be set aside.

But, in the present proceedings, the accused made no objection to the trial and cannot, when the result has gone against him, benefit by an objection, which is entirely technical in its nature, for, as I have said, nothing more could be established at a preliminary inquiry than that there was a prima facie case against the accused, whereas the trial has established that there was not only a prima facie case but there was a substantive case against the accused.

The order of the Sessions Judge is there, fore set aside and the case is remitted to him to be disposed of in accordance with law.