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Satyawan S/O Asaram Karadbhaje & … vs Shivnanda W/O Satyawan … on 5 September, 2018

1 CrApln 1716-2015

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 1716 OF 2015

1] Satyawan Asaram Karadbhaje,
Age : 32 years, Occu. : Service,
R/o Anandnagar, Pathardi,
Tq. Pathardi, Dist. Ahmednagar.
2] Manisha Uttareshwar Harel,
Age : 27 years, Occu. : Service,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
3] Chandrakala Asaram Karadbhaje,
Age : 61 years, Occu. :
R/o Anandnagar, Pathardi,
Tq. Pathardi, Dist. Ahmednagar.
4] Tatyasaheb Asaram Karadbhaje,
Age : 39 years, Occu. : Service,
R/o Swapnasakhar Building,
1st Floor, Near New Petrol Pump,
Katraj Highway, Badlapur East,
Tq. Ambarnath, Dist. Thane.
5] Meera Chandrashekhar Jagtap,
Age : 41 years, Occu. : Household,
R/o Tavar Galli, Patas,
Tq. Dound, Dist. Pune.
6] Tara Shivaji Taksal,
Age : 37 years, Occu. : Household,
R/o Sakshalpimpri, Tq. Dist. Beed.
7] Sou. Savita Tatyasaheb Karadbhaje,
Age : 36 years,
Occu. : Household,

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R/o Swapnasakhar Building,
1st Floor, Near New Petrol Pump,
Katraj Highway, Badlapur East,
Tq. Ambarnath, Dist. Thane.
8] Chandrashekhar Ramchandra Jagtap,
Age : 46 years,
Occu. : Construction work,
R/o Tavar Galli, Patas,
Tq. Dound, Dist. Pune.
9] Shivaji Ranuji Taksal,
Age : 39 years,
Occu. : Construction work,
R/o Sakshalpimpri,
Tq. Dist. Beed.
10] Komal Ravindra Ankush,
Age : 24 years, Occu. : Household,
R/o Kedgaon, Tq. Dist. Ahmednagar.
11] Rameshwar Rambhau Karadbhaje
Age : 56 years, Occu. : Blacksmith,
R/o Dahayala, Tq. Ambad,
Dist. Jalna.
12] Indu Rameshwar Karadbhaje,
Age : 51 years, Occu. : Household,
R/o Dahayala, Tq. Ambad,
Dist. Jalna.
13] Atmaram Rameshwar Karadbhaje,
Age : 37 years,
Occu. : Insurance Representator,
R/o Dahayala, Tq. Ambad,
Dist. Jalna.
14] Tulshiram Rameshwar Karadbhaje,
Age : 32 years, Occu. : Blacksmith,

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3 CrApln 1716-2015

R/o Dahayala, Tq. Ambad,
Dist. Jalna.
15] Balbhim Bhaulal Lad,
Age : 58 years, Occu. : Blacksmith,
R/o Sakegaon, Tq. Pathardi,
Dist. Ahmednagar.
16] Uttareshwar Shankar Harel,
Age : 56 years, Occu. : Labour Work,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
17] Suman Uttareshwar Harel,
Age : 51 years, Occu. : Blacksmith,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
18] Rama Shankar Harel,
Age : 51 years, Occu. : Blacksmith,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
19] Ganesh Mahadeo Ankush,
Age : 53 years, Occu. : Blacksmith,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
20] Usha Uttareshwar Harel,
Age : 24 years, Occu. : Unemployed,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
21] Ashruba @ Bapu Uttareshwar Harel,
Age : 22 years, Occu. : Unemployed,
R/o Walwad, Tq. Bhoom,
Dist. Osmanabad.
22] Yogesh Uttareshwar Harel,
Age : 20 years, Occu. : Blacksmith,

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4 CrApln 1716-2015

R/o Walwad, Tq. Bhoom,
Dist. Osmanabad. …Applicants

Versus

1] Shivnanda Satyawan Karadbhaje,
Age : 29 years, Occu. : Household,
Service, R/o Chandrabhaga Niwas,
Bhagwan Nagar, Georai,
Tq. Georai, Dist. Beed.
2] The State of Maharashtra. …Respondents
…….
Mr. Nimbalkar Aniruddha A., Advocate for Applicants.
Mr. K. D. Munde, A. P. P. for Respondent No. 2 /
State.
…….

CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 25-06-2018.
PRONOUNCED ON : 05-09-2018.

ORAL ORDER :

01. Rule. Rule made returnable forthwith with

the consent of learned counsels for the parties, the

application is heard finally.

02. Present application has been filed by the

applicants, who are the accused persons in order to

challenge the proceedings in R. C. C. No. 82/2014

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before learned J. M. F. C., Tq. Georai, Dist. Beed by

invoking the inherent powers under Section 482 of Cr.

P. C.

03. Before turning to the disputed facts, I

would like to consider the admitted facts.

Respondent No. 1 is the wife of applicant No. 1.

They got married on 13.12.2009 at Georai and

respondent No. 1-wife has filed F. I. R. vide C. R.

No. 9/2013 against the accused No. 1 husband and

others under Section 498A, 323, 504 of I. P. C. with

Pathardi Police Station. Applicant No. 3 is the

mother, applicant No. 4 is the brother, applicant No.

5 and 6 are the sisters, applicant No. 7 is the

applicant No. 4’s wife, accused No. 8 and 9 are the

brother-in-laws, accused No. 10 is the niece, accused

No. 11 is paternal uncle and accused No. 12 is

paternal aunt, accused no. 13, 14 are the cousin

brothers and accused No. 15 is maternal uncle of

accused No. 1. It is also not disputed fact that

accused No. 1 i.e. present applicant No. 1 has filed

Hindu Marriage Petition No. 294/2012 before Civil

Judge Senior Division, Ahmednagar for divorce. He

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has also filed a complaint for the offences

punishable under Sections 294, 501, 504, 506 read

with 34 of I. P. C. and Sections 67 and 71 of the

Information Technology Act bearing R. C. C. No.

44/2013 before the J. M. F. C., Pathardi against the

present respondent No. 1 and other 2 persons.

04. Respondent No. 1 / original complainant has

filed a private complaint bearing R. C. C. No.

82/2015 before J. M. F. C., Georai against all the

present applicants stating that the accused No. 1 has

married accused No. 2 in front of the house of

accused No. 16. Accused No. 16 is the father of

accused No. 2. Accused No. 17 is the mother of

accused No. 2. Accused No. 18 is paternal uncle,

accused No. 19 is the maternal uncle, accused No. 20

is the real sister. Accused No. 21, 22 are real

brothers of the accused No. 2. It is alleged that

all the rituals of Hindu marriage had taken place on

2.5.2012 between 7 to 8 PM. It is stated that ^^gkse**

was performed and accused No. 1 has tied Mangalsutra

in the neck of accused No. 2. The marriage between

applicant and accused No. 1 is still subsisting and

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therefore, the marriage between accused Nod. 1 and 2

is illegal and hence, she has prayed that action be

taken against all the accused persons under Sections

494 and 104 of Indian Penal Code.

05. After the presentation of the complaint,

learned Magistrate has passed an order of

investigation under Section 202 of Cr. P. C. The

said enquiry under Section 202 of Cr. P. C. has been

carried out by Police Station, Georai and report has

been submitted, which is in the negative. After

perusing the said report, it appears that learned

Magistrate has given chance to the complainant to

lead evidence and after the evidence was led, process

has been issued against accused No. 1 for the offence

punishable under Section 494 and against rest of the

accused persons for the offence punishable under

Section 109 read with Section 149 of I. P. C. This

order is under challenge in this application, so

also, the proceedings.

06. Heard Mr. A. A. Nimbalkar, Advocate for

Applicants, Mr. R. A. Jaiswal, Advocate for

Respondent No. 1 and Mr. K. D. Munde, A. P. P. for

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8 CrApln 1716-2015

Respondent No. 2 / State and perused the documents.

It has been submitted on behalf of the applicants

that though the marriage was performed between the

accused No. 1 and the complainant as per Hindu rites,

complainant did not co-habit with the accused No. 1-

husband. She left the matrimonial house within 8

days only and even after leaving the matrimonial

home, she was blackmailing the husband. Therefore,

the legal notice was issued by accused No. 1 on

7.6.2010. He has given details as to how the wife

had behaved with him and under what circumstances,

she had left his house. He had asked the wife to

come for co-habitation. In spite of receipt of the

said notice, she did not join the company of the

husband. She used to give obscene and insulting

messages to the complainant and for that purpose, the

written complaint was filed by accused No. 1 against

the complainant on 29.8.2010. After revealing as to

who has sent those messages and the fact that the

police were not taking cognizance, he had filed R. C.

C. No. 44/2013 before J. M. F. C., Pathardi. He has

given all the details of the said messages. That

complaint was sent for investigation under Section

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156(3) of Cr. P. C. and on the basis of the said

complaint, F. I. R. was lodged vide C. R. No.

15/2013. Thereafter, on 4.2.2013, the complaint was

filed by respondent No. 1 / complainant alleging that

the applicants have committed offence punishable

under Sections 494 109 of I. P. C. While passing

the order of issuance of process, the learned

Magistrate has not taken into consideration the

negative report filed by the Police. It was

specifically stated in the report that except the

relatives of the complainant, nobody else has supported

the allegations. Some persons were examined by the

complainant, when the learned Magistrate has taken

evidence under Section 202 of the Cr. P. C. It was

also observed in the report by the police officer

that many times the complainant was requested to

produce witnesses. But, she had not produced any

independent witness. Further, accused No. 1, who is

a teacher with Zilla Parishad Primary School,

Sonegaon, Tq. Jamkhed, Dist. Ahmednagar was present

on 2.5.2012 on his duty. But, then thereafter from

12.5.2012 to 14.6.2012 there were summer vacations to

the school. Therefore, when he was present in the

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10 CrApln 1716-2015

school, on that day, how he would have performed

marriage with accused No. 2. There is absolutely no

whisper about why the learned Magistrate is not

taking note of negative report filed by the Police in

the order. He, therefore, relied on the decision in

Shri B. H. Patil Ors. V/s Shri Chandrashekhar

Lomdeoji Titarmare, (2014 All MR (Cri.) 188) wherein

it has been held that “when the Magistrate did not

take into consideration the negative report by

investigating agency, nor gave reasons for not

agreeing with the matters stated in the same, then it

can be said that the impugned order is mechanically

passed without application of mind and such order

deserves to be set aside by exercising powers under

Section 482 of Cr. P. C.” He also relied on the

decision in State of Haryana and Ors. V/s Ch. Bhajan

Lal and Ors., (AIR 1992 Supreme Court 604) wherein

the parameters have been laid down for exercising the

powers of this Court under Section 482 of Cr. P. C.

According to the learned Advocate for the applicant,

this is a fit case where such powers are required to

be exercised.

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07. Per contra, it has been submitted on behalf

of the respondent No. 2 that the learned Magistrate

had taken into consideration the statements and the

witnesses of the complainant. Though they are the

relatives of the complainant, they have categorically

stated that they were present at the time of

incident. Complainant was harassed and therefore,

she has filed report against accused No. 1 and other

relatives for the offences punishable under Sections

498A, 323, 504 of I. P. C. When it was seen that the

complainant is not coming for co-habitation, the

accused No. 1 has married accused No. 2. Evidence

that has been led under Section 202 of Cr. P. C.

would be tested and if at all there is any delay in

lodging the report, it has been properly explained by

the complainant. Therefore, no fault can be found in

the order of issuance of process.

08. It is to be noted that the marriage between

the complainant and accused No. 1 had taken place on

13.12.2009 and a legal notice was issued by accused

No. 1 to the complainant on 7.6.2010. This fact is

not denied by the complainant. That means, the

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12 CrApln 1716-2015

husband was the person who had taken first step and

called upon the wife to resume for co-habitation. It

was specifically stated that the complainant was

serving as a primary Teacher with Zilla Parishad

School, Khatgaon, Tq. Paithan, Dist. Aurangabad. He

has given as to what was the behaviour of the

complainant during the period of 8 days at the

matrimonial home. Complainant has not come with a

case that she has replied the said notice. It

appears that thereafter, the written complaint was

filed by accused No. 1 with Police Inspector,

Pathardi Police Station on 29.8.2010 stating that he

is receiving threating SMSs from a phone number,

which he has given in the complaint and he gave the

contents of the SMSs, date and time of receipt of the

same and prayed that action should be taken against

that sender. If we peruse the SMSs, it can be seen

that it was in respect of the marriage between the

complainant and accused No. 1. Thereafter, again on

14.11.2010, accused No. 1-husband has given another

notice to complainant-wife and again called upon her

to resume for co-habitation. In respect of receipt

of this notice also neither the wife resumed for co-

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habitation nor gave reply to the said notice. It

appears that thereafter, the accused No. 1-husband

filed the Hindu Marriage Petition under Section 13 of

the Hindu Marriage Act for divorce before the Civil

Judge, Senior Division, Ahmednagar in the month of

July 2012. Thereafter, the complainant had filed a

written complaint with Mahila Takrar Nivaran Kendra,

Beed on 12.9.2012 and on that basis, the offence

under Section 498A, 323, 504 of I. P. C. came to be

registered vide C. R. No. 9/2013. Even, prior to

that it appears that accused No. 1 has filed

complaint R. C. C. No. 44/2013 against the

complainant and other 2 persons with J. M. F. C.

Pathardi, which was sent for investigation under

Section 156(3) of Cr. P. C. In the said complaint,

for the first time, it was revealed by the husband

that the accused No. 2 to 3 are acting in conspiracy

and on the basis of the SMSs and the behaviour of the

complainant, he has stated that accused No. 2 was in

love of accused No. 1 and all of them were harassing

the accused No. 1 i.e. present applicant No. 1. All

these events are necessary to be taken note for the

simple reason that under which background the said

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complaint to be filed by the accused No. 2 therein.

09. In the said complaint, the complainant has

come with a case that the accused No. 1 performed

second marriage with accused No. 2 on 2.5.2012. She

also disclosed that the said fact about their

marriage was made known to her by her relative on the

same day. If she had came to know about the alleged

second marriage on 2.5.2012, itself is the question

as to why she had kept mum till 4.2.2013. The delay

caused in filing the complaint has not been explained

by the complainant. She has stated that she had gone

to Police to lodge a report. But, she was asked by

Police to lodge a private complaint, she has not

given the date on which she had gone to Police

Station and what advice was given to her. She has

also tried to say that after she was made known about

the alleged second marriage, she as well as witness

No. 3 had gone to the house of the accused No. 1 and

it was found by her that accused No. 2 is residing

with accused No. 1 as his wife. Again she has not

given the date on which she had gone to make enquiry

and with whom she has made the enquiry.

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10. The first and the foremost point to be noted

is that when the matter was sent for enquiry under

Section 202 of Cr. P. C. and the report was filed, it

was specifically stated in the report that only the

relatives of the complainant are saying that the

accused No. 1 has performed the second marriage, but,

no evidence is given either orally by the person who

had actually seen the marriage or by documentary

evidence and therefore, the negative report is given.

The learned Magistrate has not at all considered the

negative report. No doubt, after the negative report

is filed the law expects that the complainant should

be heard. She should be given an opportunity to file

protest petition. It appears that such procedure has

been adhered to and thereafter, the complainant was

allowed to lead evidence before the Magistrate.

After the evidence was led, it was for the learned

Magistrate to consider the statements of those

witnesses, who were examined by the Police as well as

those were examined before him. A cryptic order has

been passed by the learned Magistrate stating that

the witnesses are supporting the complainant.

Statements of accused persons i.e. accused Nos. 1 and

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2 were also taken by the Police who have negatived

the fact that they have married each other. Police

had then taken statement of one Shivhari Popatghal,

who is the brother of complainant. His statement

would clear that he has not witnessed the second

marriage. Statement of witness Baban Popatghal taken

by Police would show that he was called by one

Uttareshwar Harel on 1.5.2012 for the marriage.

Accordingly, he went to the venue at about 7 PM on

2.5.2012. But, before he could reach, according to

him, the marriage was performed at 6.30 PM. But,

then he says that he had seen the accused Nos. 1 and

2 in the attire of bride and bridegroom sitting on

the chair on dais. He then said that accused No. 1

as to how he can perform second marriage. He says

that thereafter, he was threatened. He also said

that if it would have been known to him earlier he

would have gone to Police. The conduct of these

witnesses can be taken note of. He says to be the

cousin brother of the complainant. He does not say

that after witnessing the accused Nos. 1 and 2 and

having a dialogue with them, he had ever informed the

said fact to the complainant. He has stated that he

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was called by accused No. 16 i.e. the father of the

accused No. 2. The learned Magistrate ought to have

considered that whether it was possible for accused

No. 16 to call the relative of earlier wife of

accused No. 1. Witness does not say that accused

No. 16 had no knowledge about the previous marriage

of accused No. 1.

11. Witness Rajendra Tambe has stated before the

Police that he was called by brother of accused No. 1

on 2.2.2012 to remain present for marriage on

5.2.2012. It will not be out of place to mention

here that he has given the status of accused No. 4 as

Police Officer. Accused No. 4 is the real brother of

accused No. 1 and he is serving in police. When the

person was serving in Police and had a knowledge of

law, whether he would call the relatives of the first

wife of accused No. 1, is a question. But, then

witness Rajendra Tambe says that he went to the place

of marriage at about 12 PM and according to him, the

marriage was performed at 6.30 PM. He has not stated

that he had given information about whatever he had

seen to the complainant. Thus, it can be seen that

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on the basis of these statements, the report was

filed by the Police that except the relatives of the

complainant, nobody else is saying anything about the

marriage of the accused No. 1 with accused No. 2.

Statement of these witnesses ought to have been

considered by the learned Magistrate.

12. After the complainant was asked to lead

evidence under Section 202 of Cr. P. C., she has

again reiterated the same facts as per her complaint

and then she has examined same witness i.e. Rajendra

Tambe. His conduct, therefore, ought to have been

considered by the learned Magistrate even at the time

of issuance of process. Act of issuance of process

is a judicious act and can not be considered as a

mechanical process. By passing such order of

issuance of process, the learned Magistrate would be

asking the accused persons to undergo the ordeal of

trial. Therefore, the order of issuance of process

should reflect about the application of judicious

mind. The ratio laid down in B. H. Patil’s case

(Supra) is definitely applicable here. In that case

also the learned Magistrate had not taken into

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consideration the negative report by the

Investigating Officer which was filed under Section

202 of the Cr. P. C. and therefore, this Court had

come to the conclusion that such order of issuance of

process is a mechanically passed order, without

application of mind. No doubt, what had happened

between the husband and the wife since the date of

marriage till the complaint was filed was not before

the learned Magistrate when the order was passed.

However, the statement of accused No. 1 was taken by

the Police. It ought to have been considered and

further directions could have been given by the

learned Magistrate before applying his mind in view

of the statements made by accused No. 1. It is to be

noted that as per the husband, complainant had

resided with him only for 8 days. He is consistent

in saying that he had no physical relations even

after the marriage. Therefore, he has denied the

paternity of the son. Therefore, when serious

allegations were made by him, the learned Magistrate

ought to have considered the negative report and

ought to have given the detailed order.

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13. Taking into consideration all the documents

on record, especially, as it can be revealed from

those documents that husband had taken the first step

and had called upon the complainant to resume the co-

habitation and she had neither resumed the co-

habitation nor replied the notice and also the

evidence that was led before the Magistrate as well

as the statements taken by Police under Section 202

of Cr. P. C., it is clear that the impugned order

passed by the learned Magistrate is without

application of mind. There was absolutely no

evidence before the learned Magistrate to take

cognizance of the offence and therefore, the said

complaint deserves to be quashed and set aside in

view of the decision in B. H. Patil and Bhajan Lal’s

case (Supra).

14. Hence, following order;

ORDER

(i)Application is hereby allowed.

(ii)R. C. C. No. 82/2015 filed before J. M. F. C.,

Tq. Georai, Dist. Beed against the present

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applicants is hereby quashed and set aside under

Section 482 of Cr. P. C.

(iii)Rule is made absolute in above terms.

[SMT. VIBHA KANKANWADI]
JUDGE
Dahibhate/-.

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