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Deepak Laxminarayan Varma And Ors vs The State Of Maharashtra And Anr on 7 January, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.1850 OF 2017

1. Deepak Laxminarayan Varma, Age 42 years,
Occ.Unemployed;
2. Smt.Ramdulari Laxminarayan Varma
@ Ramdulari Ramakuber Shrma, Age 62 years,
Occ.House wife,
Both R/o.249/D-45, Someshwar CHS, Sector-2,
Charkop, Kandivali (W), Mumbai-67.
3. Mrs.Sunita Santosh Gangawane, Age 41 years,
Occ.House wife,
4. Mrs.Santosh Vasant Gangawane, Age 47 years,
Occ.Business,
Both R/o.B/303, Shri Chintamani Hsg.Soc;
Industrial Colony, M.G.Road, Goregaon (W),
Mumbai-62.
5. Ms.Sangeeta Laxminarayan Varma, Age 43 years,
Occ.Business, R/o.B/09, Poppy CHS,
Ram Nagar, Borivali (W), Mumbai-92. Petitioners

versus

1. The State of Maharashtra.
2. Mrs.Kiran Deepak Varma
@ Kiran Khimanand Pandey,
24/A, Milton CHS, Kulupwadi Road,
Off.W.E.Highway, Borivali (East),
Mumbai-400 066. Respondents

Mr.S.J.Shirke I/by Sagar Bhandare for petitioners.
Mr.Santosh Vhatkar I/by Santosh Vhatkar Associates for
respondent no.2.
Mr.P.H.Gaikwad, APP, for State.

CORAM : PRAKASH D. NAIK, J.

Date of reserving the Judgment : 5th July 2018
Date of pronouncing the Judgment : 7th January 2019

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JUDGMENT :

1. The petitioners have invoked Article 227 of Constitution of
India and
Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C)
for challenging the order issuing process dated 17 th April 2015
passed in CC No.427/SW/2013 and order dated 21st March 2017
passed by Additional Sessions Judge in Criminal Revision Application
No.84 of 2015.

2. The respondent no.2 had initiated the impugned proceedings
by filing a complaint before the Court of Additional Chief
Metropolitan Magistrate, Borivali, at Mumbai, for offences under
Sections 494, 495, 107, 109, 112, 114, 120-B, 192, 200, 406, 415,
417, 418, 419, 420, 463, 464, 465 r/w 34 of Indian Penal Code
(
IPC).

3. Brief facts as alleged in the complaint are as follows.

4. The complainant got acquainted with petitioner no.1 and
subsequently they got married on 11 th February 2005 as per Hindu
Vedic rites. The complainant was harassed by the accused. She was
thrown out of matrimonial home. The petitioner no.1 filed divorce
petition before the Family Court, at Bandra, Mumbai. The said
petition was dismissed on 27th January 2012. The complainant
forwarded letter dated 21st May 2012 for restoration of conjugal
rights. Prior to the marriage of complainant, the petitioner no.1 was
already married to Smt.Sunit Deepak Varma, which was not
disclosed to the complainant. After the marriage with the
complainant, petitioner no.1 again got married for the third time

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with one Neelu Sharma. After the said wedlock daughter namely
Disha was born. The complainant obtained medical certificate with
regards to delivery of Neelu Sharma giving birth to a female child on
27th August 2010. The petitioner no.1 thereby committed the offence
under
Section 494 of IPC. The complainant also obtained extract of
birth register from the Registrar of Birth, Nagar Nigam, Varanasi,
Uttar Pradesh. The complainant initiated proceedings under
Protection of Women from
Domestic Violence Act. The petitioner
no.1 is not naturally handicapped and the deformity in his physic
was due to improper operation. He had forged documents while
obtaining handicap certificate. The complainant lodged first
information report with Borivali Police Station on 22 nd January 2013
vide CR No.31 of 2013 for offences under
Sections 498A, 406, 506-II,
494 along with Section 34 of IPC. However, since the offence u/s
494(4) of
IPC was to be tried separately, the complainant intended
to forward appropriate application to avoid double jeopardy. During
the course of investigation the third wife of petitioner no.1 was
called for recording statement by Borivali Police Station wherein she
stated that the father of her daughter namely Disha is petitioner.

5. Learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai
directed Borivali Police Station to conduct inquiry and submit report
under
Section 202 of Cr.P.C. Thereafter inquiry was conducted by
police and report was submitted u/s 202 of
Cr.P.C on 27 th February
2015. Learned Magistrate thereafter issued process against the
accused for the aforesaid offences. The petitioners preferred
Criminal Revision Application No.84 of 2015 before the Sessions
Court challenging the order of process. The said revision application
was dismissed by order dated 21st March 2017.

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6. Learned advocate for petitioners submitted that the complaint
was initiated with mala fide intentions to cause harassment to the
petitioners. The respondent no.2 has launched several proceedings
to cause harassment to the petitioners. There is no evidence to
establish the offences allege in the complaint. There is no proof of
marriage between the petitioner no.1 and Neelu Sharma. Without
proof of marriage, the charge of bigamy does not attract. The order
passed by learned Magistrate issuing process indicate non application
of mind as the essential ingredients of
Section 494 of IPC are not
made out. The allegations with regards to third marriage are general
and vague and the same are based on surmises and conjectures. The
evidence is not enough to proceed against the petitioners. The
petitioner nos.2 to 5 are relatives of petitioner no.1 against whom no
specific allegations of abetment has been made out. Learned
Magistrate has issued process without application of mind as the
complaint does not make out a case of bigamy. There is no averment
of performing the essential ceremonies in accordance with custom or
religion of parties. The police report tendered pursuant to the
directions of Court did not show that there was performance of
marriage between petitioner no.1 and Neelu Sharma; and therefore,
there was no material to charge the accused for offence of bigamy. In
the absence of any evidence, the petitioner nos.2 to 5 are dragged in
the proceedings for aiding and abetting the bigamous marriage.
Reading the complaint as it is, it does not spell out the required
ingredients to constitute the alleged offences. If the marriage is not
valid, it is not a marriage in the eye of law. Mere fact that a man and
women are living together as husband and wife, does not give them
status of husband and wife. Unless there is proof of solemnization of

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valid subsequent marriage during the subsistence of earlier marriage,
the case u/s 494 of
IPC cannot be made out. To constitute an
offence u/s 494 of
IPC, it has to be established that the accused must
have contracted the first marriage while the first marriage was
subsisting, the second spouse must have contracted the second
marriage and both the marriages must be valid in the sense that
necessary ceremonies required by the personal law governing the
parties had been performed. The Sessions Court has rejected the
revision application erroneously. There is no averment in the
complaint about the involvement of the accused-petitioner nos.2 to

5. the complaint is silent as to when and whether the marriage was
performed. The Court ought to have examined the authenticity of
the allegations in the complaint. The report submitted by police u/s
202 of
Cr.P.C did not disclose any evidence with regards to the
contravention of the aforesaid provisions. The complainant has
made repeated complaints with regards to the bigamy.

7. Learned advocate for petitioner relied upon following
decisions :

(a) Priya Bala Ghosh Vs. Suresh Chandra Ghosi (AIR-1971-SC-
1153);

(b) Binoy Kumar Gupta Vs. Leela Gupta and another
(2007(4)-CHN-491);

(c) Dr.Prem Mittal Vs. State of Rajasthan and others
(II(2000)DMC-754);

(d) Binoy Kumar Gupta Vs. Leela Gupta and anr (2007(4)-CHN-

491);

(e) Kulwant Singh and others Vs. Surjit Kaur (2002-CrLJ-3443);

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(f) Seema Rani Vs. Gurpreet Kaur (Punjab-Haryana High Court in
Cri.Misc.No.M-21862 of 2009, decided on 10-11-2009);

(g) Smt.Dhara Dei Vs. Prafulla Swain and others (1984-II-OLR-

621);

(h) Kanwal Ram and others Vs. The Himachal Pradesh
Administration (AIR-1966-SC-614);

(i) Bhaurao Shankar Lokhande and another Vs. The State of
Maharashtra and another (1965(2)-Cri.L.J.-544);

(j) Modi Bala Krishna Ramaraju Vs. Bodi Thirupathamma @
Tirumala Devi and others (1975-CRI.L.J.-208).

8. Learned advocate for respondent no.2 submitted that prima
facie case is made out against the accused. The averments in the
complaint, report submitted by police u/s 202 of
Cr.P.C, the evidence
collected by the police, statements recorded during the course of
inquiry and the material on record, make out the case for offences
alleged in the complaint. This is not the stage to scrutinize and
appreciate the evidence. There are documents which establish
existence of marriage between the petitioner no.1 and Neelu
Sharma. It is further submitted that there is no infirmity in the order
issuing process as well as order of the Sessions Court dismissing the
revision application. The process was issued by the Trial Court on
17th April 2015. Smt.Neelu Sharma is residing with the petitioners
and she gave birth to two children of petitioner no.1. The accused
are delaying the trial. They were avoiding service of summons. This
Court had expedited the trial. The Sessions Court has rightly
rejected the revision application by assigning reasons. It is further
submitted that the complaint discloses the offence against the
accused. It is submitted that the petitioner no.1 has solemnized the
third marriage. The said fact is fortified by photographs. The

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petitioner nos.1 and 2 were aware that the marriage between the
petitioner no.1 and respondent no.2 was solemnized in 2005 and
during the subsistence of said marriage respondent no.2 in
connivance with other accused, had performed marriage with Neelu
Sharma. The documents relating to birth of the children born to
Neelu Sharma indicate the name of petitioner no.1 as the father of
children who were born to Neelu Sharma. The petitioner no.1 had
filed a divorce petition which was dismissed on 27 th January 2012.
Respondent no.2 thereafter forwarded a letter to petitioner no.1 for
restitution of conjugal rights.

9. It is further submitted that there are several documents which
indicate that Smt.Neelu Sharma is the wife of petitioner no.1.
Reliance is placed on the certificate issued by Priya Maternity and
Nursing Home, Varanasi, Uttar Pradesh, which mentions that
Mrs.Neelu Varma, w/o Deepak Varma has given birth to a female
child on 27th August 2010. She was admitted in the hospital on 27 th
August 2018 and discharged on 31st August 2010. The complainant
has also obtained the birth certificate issued by Deputy Registrar
(Birth and Death), Varanasi with regards to birth of Disha Verma
born to Neelu Verma which mentions the name of petitioner no.1 as
father. It is further submitted that ration card issued in the name of
petitioner no.5 reflects address of 9B, Poppy CHS, Ram Nagar,
Birivali (West), Mumbai. It contains names of petitioner no.1, Neelu
and Nisha. The status of Neelu is shown as sister-in-law of petitioner
no.5 (wife of petitioner no.1) and Disha as niece. Subsequently the
names of Deepak, Neelu and Disha were deleted from ration card on
26th April 2011. It is submitted that petitioner no.5 was aware and
had knowledge about the marriage between petitioner no.1 and

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Smt.Neelu Sharma which is borne out by the aforesaid documents.
She had aided and abetted petitioner no.1 in performing marriage
with Neelu. Reliance is also placed on pan card of Neelu Deepak
Varma, which shows that petitioner no.1 is her husband. The birth
certificate issued by Municipal Corporation of Greater Bombay was
also placed for consideration with regard to registration of birth of
child born on 19th September 2014 to Neelu Deepak Varma and
Deepak Varma (petitioner no.1). This certificate also bears the
permanent address of parents. It is therefore submitted that there is
voluminous evidence to show that the petitioner no.1 and Neelu
Sharma had solemnized their marriage. All the other accused have
aided and abetted him. It is therefore submitted that the petition is
devoid of merits. The complainant must be given an opportunity to
prove the charges during trial.

10. Learned counsel for petitioners, however, submitted that the
documents which were relied upon by the respondent-complainant
before this Court were not part of the complaint and no reliance can
be placed on such documents.

11. Learned counsel for respondents relied on following decisions :

(a) Smt.Chand Dhawan Vs. Jawahar Lal and others (1992)2-SCR-
837;

(b) Koppisetti Subbharao @ Subramaniam Vs. State of A.P.
(2009)3-SCC-688.

12. I have perused the documents. The grievance of respondent
no.2 is that during subsistence of her marriage with petitioner no.1
which was solemnized on 11 th February 2005, the petitioner no.1 has

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performed another marriage with Smt.Neelu Sharma. The
contention of the petitioners, however, is that there is no evidence to
support the said allegations. Merely on the basis of surmises and
conjectures, the accused cannot be prosecuted for the said offences.
The complaint indicate that the complainant was harassed by
accused. He had performed third marriage with Neelu Sharma. It is
pertinent to note that pursuant to the directions of the Court the
inquiry was conducted by parties u/s 202 of
Cr.P.C and the said
report was submitted to the Court. The report indicates that inquiry
was conducted with respondent no.2 and petitioner no.1. The
petitioner no.1 was in relationship with Neelu Sharma and out of the
said wedlock daughter was born on 27 th August 2010. The
documents received from the Department of Registration of Birth/
Death of Municipal Corporation of Greater Bombay shows that
second child was born to Neelu Sharma on 19 th September 2014 and
name of petitioner no.1 is shown as father of the child, which
indicate that the marriage was solemnized between petitioner no.1
and Smt.Neelu Sharma, and he is suppressing the details with
regards to the place and registration of marriage. However, on
perusal of the birth certificate produced by the complainant, it is
apparent that residential address was shown as 249, D-45,
Someshwar Society, Sector-2, Charkop, Kandivali, Mumbai. It is
their permanent address. It is further stated that the petitioner no.1
had stated during the inquiry that Smt.Neelu Sharma is residing with
Smt.Sangeeta Laxminarayan Varma at B-9, Poppy CHS, Ram Nagar,
Borivali (West), Mumbai. In spite of summoning Smt.Neelu Sharma,
her mother Geeta Sharma, sister Babli Sharma and brother Mukesh
Sharma, they did not remain present before the inquiry officer. It
was also mentioned that there is likelihood that other accused had

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knowledge of the marriage between the petitioner no.1 and Neelu
Sharma and therefore they are avoiding inquiry. It was further
mentioned that the accused were aware about marriage between
petitioner no.1 and Smt.Neelu Sharma and thereby performed the
said marriage and cheated the complainant. However, there is no
clear evidence against them. The report also refers to certificate with
regards to disability of petitioner no.1. On the basis of said report
the Trial Court had issued process. The statements of some of the
accused were recorded. The petitioner no.5 has shown ignorance
between the relationship of petitioner no.1 and Neelu Sharma. It
appears from the documents that Neelu Sharma was residing with
petitioner no.1 and her name was subsequently deleted from the
ration card. The relationship reflected in the ration card indicate
that Neelu is sister-in-law of petitioner no.5. The ration card also
bears the names of one of the daughter of Neelu Sharma and
petitioner no.1. From the record it is apparent that prima facie there
is evidence to proceed against the petitioner no.1 and petitioner
no.5. As far as petitioner nos.2 to 4 are concerned, there is nothing
on record to show connivance except inference. The contention of
the petitioner is that there is no proof of performance of marriage.
However, there are several documents which indicates that the
petitioner no.1 and Neelu Sharma have projected themselves as
husband and wife and petitioner no.1 is also shown as father of two
children born to them. The complainant must be given an
opportunity to prove her case at trial and at this stage the entire
proceedings cannot be quashed. Although petitioner no.5 during
recording of her statement dated 11 th December 2012 had stated that
she is not aware of the relationship between petitioner no.1 and
Smt.Neelu Sharma, the ration card which was issued in her name

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and bearing names of Smt.Neelu Sharma and petitioner no.1 as well
as their daughter speaks otherwise. At this stage, however, it is not
possible to dismiss the complaint against petitioner no.1 and
petitioner no.5 considering the nature of evidence relied upon by
respondent no.2. However, in the absence of evidence against
others, even prima facie, they cannot be subjected to ordeal of facing
prosecution. Thus, the proceedings as against petitioner nos.2 to 4
are required to be quashed and set aside. The circumstances put
forth by the complainant, prima facie, indicate that the petitioner
no.1 and Neelu Sharma were living together as husband and wife.
The complainant has relied upon certain circumstances including
documents and in such eventuality she must be given an opportunity
to prove the same during trial. The involvement of petitioner nos.1
and 5 is apparent, although there is nothing to proceed against other
accused.

13. The decisions relied upon by both the sides relate to offences
u/s 494 and 495 of
IPC. It is the settled principle of law as to what is
the requirement to constitute said offences. Most of the said
decisions were delivered during the trial. In the present case, the
process was issued against accused.

14. In the light of aforesaid observations, I pass following order :

ORDER

(i) Criminal Writ Petition No.1850 of 2017 is partly allowed;

(ii) The impugned proceedings arising out of CC No.
427/SW/2013 and impugned order order dated 21 st March 2017
passed by Additional Sessions Judge, at Dindoshi, in Criminal

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Revision Application No.84 of 2015, are quashed and set aside as
against petitioner nos.2 to 4;

(iii) The writ petition as against petitioner nos.1 and 5 stands
dismissed.

(PRAKASH D. NAIK, J.)

MST

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