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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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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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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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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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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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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