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Kalpana Sanjay Nangare vs Sanjay Ananda Nangare And Ors on 4 December, 2019

(31) Apeal 1119-15.doc

BDP-SPS

Bharat

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D.
Pandit
Digitally signed

CRIMINAL APPELLATE JURISDICTION
by Bharat D.
Pandit
Date: 2019.12.06
15:20:27 +0530

CRIMINAL APPEAL NO. 1119 OF 2015

Kalpana Sanjay Nangare ….. Appellant.

V/s

Sanjay Ananda Nangare Ors. ….. Respondents.
—-
Mr. Manoj Apagonda Patil for the Appellant.
Mr. Ganesh Gole for Respondent Nos. 1 to 3 and 5.
Mr. S.V. Gavand, APP for the State.
—-
CORAM: NITIN W. SAMBRE, J.

DATE: DECEMBER 4, 2019

P.C.:-

1] This appeal is filed by the complainant, questioning the acquittal

of the accused of the offences punishable under Sections 498A, 323,

506 read with Section 34 of the Indian Penal Code.

2] The case of the Appellant/complainant is, the

Respondent/Accused performed second marriage on 22/4/1998,

whereas complaint came to be lodged on 9/11/1999. Mr. Patil, the

learned Counsel appearing on behalf of the Appellant would urge that

even if appeal against acquittal preferred by the prosecution i.e. State

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(31) Apeal 1119-15.doc

was dismissed by the Sessions Court, pursuant to proviso to Section

372 of the Criminal Procedure Code, present application is very much

maintainable in the form of an appeal by the Appellant/complainant

while questioning the legality of the order of acquittal. He would urge

that on 17/04/2003, DCP, Naigaon, Mumbai has submitted a report

on the issue of an offence under Section 494 IPC (bigamy) committed

by the Respondent/Accused of which no judicial note is taken by the

Court below. His further contention is, proceedings before the Family

Court for grant of maintenance were decided on 24/1/2001 which

order is at Exhibit-25. According to him, the observations in the said

proceedings on the issue of bigamy ought to have been taken into

account by the Magistrate, as same are binding on him while deciding

the prosecution case for an offence under Section 494 of the Indian

Penal Code.

3] Mr. Gole, learned Counsel appearing on behalf of Respondent

Nos. 1 to 3 and 5 opposed the submissions, as according to him,

appeal preferred before the Sessions Court by the State is already

dismissed, as the offence under Section 498A and Section494 of IPC was not

proved.

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(31) Apeal 1119-15.doc

4] The learned APP appearing on behalf of the State assisted this

Court in assessing the material available on record.

5] Considered the submissions.

6] Fact remains that the report which contains the conduct of the

accused on the issue of bigamy, tendered by DCP, Naigaon, Mumbai

on 17/4/2003 was not exhibited. The said Officer was not examined.

As such, accused had no occasion to cross-examine the said witness or

to ascertain the sanctity of the findings in that report. As a

consequence of above, the Court below has rightly ignored the report

dated 17/4/2003 tendered by DCP, Naigaon, Mumbai.

7] Exhibit-25 is an order passed by the Family Court on a prayer

moved for grant of interim maintenance. The said order is

interlocutory in nature and only deals with the entitlement of grant of

maintenance. While deciding the issue therein, at interim stage if any

reference is made to the allegation of bigamy, that by itself will not

bind the Respondent/Accused, as an issue for consideration before the

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(31) Apeal 1119-15.doc

Court was of the maintenance and not bigamy. As such, findings

recorded in Exhibit-25 are not binding on the Court below. Even if

order of granting of maintenance was executed, same was never put to

Respondent/Accused so as to confront him as to contents in the said

document. As such, same is also cannot be considered for conviction

of the Accused.

8] It was expected of the complainant to enter into witness box and

demonstrate the offence of bigamy which the complainant has failed

to, as is reflected in the order of acquittal. That being so, no case for

consideration is made out, as the view expressed by the Court below is

a possible view. As such, appeal fails and same is dismissed.

( NITIN W. SAMBRE, J. )

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