P L D 1964 Dacca 630 (PLP)

3. Mr. Abdus Salam, the learned Advocate appearing on behalf of the accused petitioner, has taken two grounds calling in question the legality of the said order of convictions. The first of these is that the impugned order of conviction is legally insup portable for non‑compliance with the mandatory provision of section

10. That section reads:‑ "The Court taking cognizance of an offence under this Act shall, unless it dismisses the complaint under section 203 of the Code of Criminal Procedure, 1898, either itself make an inquiry under section 202 of that Code, or direct a Magistrate of the first class subordinate to it to make such inquiry." It is apparent from the plain language of the section itself that the provision is mandatory and there is no dispute, too, that in the present instance no preliminary inquiry as contemplated thereby was held. The question arising, therefore, is whether violation of the said mandatory provision is such as may invalidate the pro ceeding and render the conviction of the accused petitioners bad in law. In this connection it is important to bear in mind that the aforesaid question has arisen In a revisional proceeding and in such a proceeding mere contravention of a provision of the rele vant statute, even though of a mandatory nature, cannot by itself render the proceeding or the conviction recorded therein illegal unless it is further established that such contravention or non compliance has actually caused prejudice to the accused. It was thus held in the case of Pt. Harihar Tiwari v. Etwari Gop and another (A I R 1939 Pat. 525). "The object of the preliminary inquiry under section 10 is to inquire whether there is a prima facie case or not. If the accus ed objects to being tried until a preliminary inquiry has been made, the Magistrate is bound to make such an inquiry, and if he has proceeded in disregard of the objection of the accused his order would have to be set aside. But where the accused makes no objection to the trial he cannot, when the result has gone against him benefit by an objection, based on non‑com pliance with section 10 which is entirely technical in its nature, if the trial has established that there was not only a prima facie case but there was a substantive case against the accused."

4. I am in respectful agreement with the proposition of law as laid down above.

5. Now turning to the present case it may be pointed out that the learned Magistrate was satisfied and has found that there was not only a prima facie case but that the prosecution has actually proved the allegations made against the accused peti tioners. Mr. Salam, too, found it difficult, in the facts and circum stances of the case, to argue that there has been any prejudice to his clients for non‑compliance of the provisions of section 10 in this instance. So the aforesaid objection taken on the ground of violation of the said provision, is overruled as having no force or substance.

6. The next point made by Mr. Salam is that the conviction of the accused petitioners Nos. 2‑4 under section 5 cannot be sup ported and that according to him, these petitioners could be con victed, if at all, under section 6 and not under section

5. Section 6 is as follows :‑

"Where a minor contracts a child marriage, any person having charge of the minor, whether as parent or guardian or in any other capacity, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnised, or negligently fails to prevent it from being solemnised, shall be punishable with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both " It may be worthwhile also to quote here the provision of section 5 which runs thus: "Whoever performs, conducts or directs any child‑marriage shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees, or with both, unless he proves that he had reason to believe that the marriage was not a child‑marriage."

7. Sections 5 and 6 deal with different offences. Section 5 deals with the person who performs, conducts or directs any child- marriage. Section 6 provides for the offence in case where a minor himself contracts a child‑marriage. It is only in the case a minor contracts a child‑marriage that any person having charge of the minor, whether as parent or guardian or in any other capa city, lawful or unlawful, who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnised, shall be punishable. The case before me is not one of a minor contracting the marriage and, as such, section 6 can have no manner of application at all. That, how ever, does not answer the point finally inasmuch as it remains to be considered whether the accused petitioners concerned, i.e., peti tioners Nos. 2‑4, can be rightly brought within the mischief of section

5. In this connection reference may be made to the case of Munshi Ram and another v. Emperor (158 I C 1007) wherein it has been held that section 5 of the Child Marriage Restraint Act, 1929, is wide enough to cover the case of the fathers of both the bride groom and the bride.

8. As has already been made clear above, petitioner No. 2 is the father of the bridegroom while petitioner No. 4 is the mother of the child‑bride and petitioner No. 3 is the present husband of petitioner No.

4. Evidence on the record is that the said child was living with her uncle at a different place from where, however, her mother, i.e., petitioner No. 4, brought her on a visit to her husband's house and there gave her in marriage to petitioner No.

1. The marriage was solemnised in the house of petitioner No.

3. It also appears to be in evidence, and the learned trying Magistrate, too, appears to have been satisfied, that besides the mother of the girl, petitioners Nos. 2 and 3 also participated in the marriage and conducted and directed, i.e., promoted, the same. That being so, they have, in my opinion, been rightly convicted under section 5 (See 158 I C 1007). Thus there appears to be no substance in this contention as well.

9. Lastly, Mr. Salam also urged that the sentences inflicted upon the accused petitioners are rather excessive. Regard being had to the circumstances, however, I think a fine of Rs. 50 each in the case of petitioners Nos. 1 and 4, and Rs. 100 each in the case of petitioners Nos. 2 and 3, will suffice the ends of justice and I order accordingly. Subject to the modification of the sentence as above, the Rule is discharged. S. Q, Rule discharged.