1. This is a reference by the District Magistrate under the following circumstances:
2. A complaint was filed against the respondent and five others under Sections 5 and 6 of the Child Marriage Restraint Act (19 of 1929) in the Court of the Sub Divisional Magistrate of Kurnool.
After recording the sworn statement of the complainant and without holding an enquiry or investigation into the matter, the Bub Divisional Magistrate ordered notice of the petition to the accused under Section 8 of the Act.
Before he could proceed further into the matter the casa was transferred to the Additional First Class Magistrate's Court, Nandyal. At that stage, the accused filed a petition before the Additional First, Class Magistrate under Section 10 of the Act to dismiss the complaint as the mandatory provisions of that section were not observed by the Court that issued the process. The Additional First Class Magistrate, Nandyal, gave notice of that petition to the complainant and his pleader and as they did not appear before him, he dismissed the complaint under Section 203, Criminal P. C.
The District Magistrate made this reference recommending the setting aside of that order on the ground that once the process was issued the Court has no jurisdiction to dismiss the complaint under Section 203, Criminal P. C. notwithstanding the illegality of the issue of summons. Instead, he thought that the trial Court should have acquitted the accused under Section 247, Cr. P. C.
3. The first question for consideration is whether the procedure adopted by the trial court is correct.
The answer to this depends upon the terms of Section 203, Criminal P. C. Section 203, Criminal P. C. reads thus:
'The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath of the complainant and the result of the investigation or inquiry under Section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing.'
It is manifest that the pre-requisite for taking action under Section 203 is an investigation or enquiry under Section 202. It is only on a consideration of the statement on oath of the complainant and the result of investigation or enquiry under Section 202, that the Magistrate is authorised to dismiss a complaint under Section 203, Criminal P. C. Obviously, there has been no investigation or enquiry under Section 202 and it was this that led to the filing of a petition by the accused under Section 10, Child Marriage Restraint Act. If so, it was incompetent for the Magistrate to have acted under Section 203, Criminal P. C.
Nor can I agree with the District Magistrate that the only course open to the Additional First Class Magistrate was to acquit the accused under Section 247, Criminal P. C. There has been no proper issue of process and therefore the provisions of Section 247 are not attracted. In the circumstances, I have to set aside the order of dismissal under Section 203, and direct the Magistrate to hold anenquiry as contemplated by Section 10 of the Child Marriage Restraint Act and proceed further in the matter.