Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ...

on 25 September, 2009

Bombay High Court

Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ... on 25 September, 2009
Bench: R.Y. Ganoo
crn56.09.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR.

CRIMINAL APPLICATION NO. 56 OF 2009

Gajanan Maroti More,

aged 52 yrs., Occ. Service,
r/o Shegaon, Tah. Shegaon,
Distt. Buldana. :: APPLICANT

-: Versus :-

1. Sou. Durga @ Radha Shrikrishna Wagh,

aged 28 yrs., r/o Kinhi Savdat,

Tah. Chikhli, presently r/o Nirod,
tah. Khamgaon,
Distt. Buldana.

2. The State of Maharashtra

through G. P. :: RESPONDEN

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Shri S. V. Sirpurkar, Advocate for the Applicant.
Shri D. B. Yengal, A.P.P. for respondent No.2.

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 Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ... on 25 September, 2009

------------------------------------------------------------------------------------------

CORAM: R. Y. GANOO, J.

DATED : 25TH SEPT., 2009

Oral Judgment

1. Respondent No. 1 remained absent though served. The

matter is called out serially. It was shown on final hearing Board, hence taken up for hearing.

2. Respondent No. 1 filed complaint in the Court of Judicial Magistrate, First Class, Court No. 2,
Khamgaon being Criminal Case No. 88 of 2006 against Shrikrushna Bhaskar Wagh, Harsha Wagh,
the applicant and 8 other persons. The applicant is shown as accused No.3 crn56.09.odt 2 / 7 in the
said complaint. According to respondent No. 1 while her marriage was subsisting with original
accused No. 1 Shrikrushna, said Shrikrushna entered into matrimony with original accused No.2
Harsha Wagh. Gajanan More who happens to be the father of Harsha Wagh is shown as accused No.
3 in the complaint, who is alleged to have participated in the marriage function and was allegedly
responsible for arranging marriage of original accused No. 1 and original accused No.2. In the body
of the complaint allegations are levelled against all the accused that they have committed offence
punishable under Section 494 read with Section 34 of the Indian Penal Code. That is how the
complaint is styled. On the said complaint, verification was recorded and the learned J.M.F.C. after
perusing the entire record passed order thereby directing issuance of process against all the accused
including present applicant under Section 494 read with Section 34 of the Indian Penal Code. This
order dated 05/8/2006 came to be challenged by the applicant by filing criminal revision No. 79 of
2006 before the learned Ad hoc Additional Sessions Judge, Khamgaon. The learned Additional
Sessions Judge by judgment and order dated 09/9/2008 dismissed the said revision. In the body of
the judgment following observation is found;

".....The learned Trial Court was perfectly right and rather fully justified in issuing the
process against accused u/s 494 read with 109 I.P.C...."

crn56.09.odt 3 / 7 This observation of the learned Additional Sessions Judge is contrary to what is
appearing in the order passed by the learned J.M.F.C. in as much as process was issued against the
applicant as also other accused under Section 494 read with Section 34 of the Indian Penal Code. On
account of dismissal of the revision, as of today, the process issued against the applicant is under
Section 494 read with Section 34 of the Indian Penal Code.

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 Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ... on 25 September, 2009

3. Learned Advocate Mr. Sirpurkar appearing on behalf of the applicant drew my attention to the
provisions of Section 494 I.P.C. and submitted that the process can be issued under Section 494
I.P.C.

against that person who enters into a second matrimony, and therefore, the process issued against
the present applicant under Section 494 read with Section 34 I.P.C. is wrong because the applicant
had not entered into matrimony with original accused No.1 and in any case on consideration of
entire record, the process could not have been issued under Section 494 read with Section 34 I.P.C.
and to that extent there is illegality on the part of the learned J.M.F.C. which illegality was in a way
confirmed by the order passed by the learned Additional Sessions Judge. He, therefore, submitted
that the order passed by both the Courts below should be quashed.

4. Learned A.P.P. Mr. Yengal submitted that it appears that there is some misunderstanding in the
mind of the learned J.M.F.C.

though it could be said that process could not be issued under Section crn56.09.odt 4 / 7 494 read
with Section 34 of the Indian Penal Court. He submitted that the process should have been issued by
the J.M.F.C. under Section 494 read with Section 109 of the Indian Penal Code against applicant as
it is possible to say that the applicant (accused No.3) happens to be the father of accused No. 2 has
abeted the offence under Section 494 of the Indian Penal Code. The learned A.P.P. further
submitted that it would be proper if this Court modifies the order of issuance of process and direct
that process should be issued under Section 494 read with Section 109 of the Indian Penal Code.

5. After having considered the point involved, I am inclined to observe that on the basis of the order
passed by learned J.M.F.C. on 05/8/2006, it is clear that learned J.M.F.C. was convinced that a
prima facie case is made out against the respondents -accused Nos. 1 and 2 as having entered into a
second matrimony when marriage between original accused No. 1 and present respondent No. 1 was
subsisting.

6. The next question which the learned J.M.F.C. should have addressed was whether what role is
played by the applicant in performance of the said marriage of accused Nos. 1 and 2 and whether the
applicant has abeted the commission of the offence of Section 494 I.P.C. of his daughter and original
accused No. 1 who happens to be the husband of respondent No.1. In my view, it would be proper if
the order passed by the learned J.M.F.C. issuing process under Section 494 read with Section 34
I.P.C. is set aside and the learned J.M.F.C. is crn56.09.odt 5 / 7 directed to consider the record
before him (on the basis of which he issued process on 05/8/2006) hear respondent No. 1 and then
pass a fresh order on the complaint filed by respondent No. 1 and decide whether any process is
required to be issued against the applicant and if 'yes', under what section of I.P.C.

7. In my view, aforesaid procedure would meet the ends of justice, particularly because it would not
be proper for this Court to appreciate the record which was before the learned J.M.F.C. and pass an
order. This is also required to be done because respondent No. 1-

original complainant is absent before this Court.

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 Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ... on 25 September, 2009

8. On consideration of the complaint it is noticed that original accused Nos. 4 to 11 are arraigned as
accused. The point involved so far as the applicant would also be applicable so far as original
accused Nos. 4 to 11 are concerned. It is noticed that these original accused Nos. 4 to 11 have not
challenged order dated 05/8/2006 by which process was ordered against them under Section 494
read with Section 34 of the Indian Penal Code. If this is so, the principle on the basis of which
process issued against the present applicant is being quashed, the said principle can be extended in
regard to original accused Nos. 4 to 11 and the order issued against the present applicant and
original accused Nos. 4 to 11 is required to be quashed and the respondent is required to be heard
and after considering the record, fresh order will have to be passed.

crn56.09.odt 6 / 7

9. Original accused Nos. 1 and 2 are alleged to have entered into the marriage when marriage
between accused No. 1 and respondent No. 1 is said to be subsisting. In view of this, the process
issued against original accused Nos. 1 and 2 under Section 494 read with Section 34 of the Indian
Penal Code is required to be reconsidered by the learned Judicial Magistrate, First Class.

10. In substance, once order dated 05/8/2006 issuing process under Section 494 read with Section
34 I.P.C. is found to be defective with reference to various accused, it would be proper if the learned
J.M.F.C. is directed to consider the record which was before him as on 05/8/2006 and decide
whether process is required to be issued against which accused and if answer is in affirmative, the
learned J.M.F.C.

shall consider the provisions of the Indian Penal Code in the proper perspective and in the wake of
allegations levelled against each of the accused and then pass appropriate order.

11. In view of the aforesaid discussion, following order is passed:

i) Order dated 05/8/2006 passed by Judicial Magistrate, First Class, Khamgaon in

Regular Criminal Case No. 88 of 2006 thereby issuing process against all the accused
including the applicant under Section 494 read with Section 34 of the Indian Penal
Code is set aside.

ii) Regular Criminal Case No. 88 of 2006 is restored to the file of the Judicial Magistrate,
crn56.09.odt 7 / 7 First Class, Court No. 2, Khamgaon to the status as it was prevailing as of
05/8/2006. The learned J.M.F.C., Khamgaon is directed to hear the respondent, consider the record
which was before him as of 05/8/2006 and decide whether any process is required to be issued
against all or any of the accused mentioned in the complaint. While doing so, he shall consider the
allegations and the record, qua each accused and decide as to under what section process is to be
issued respectively, if at all, such a process is required to be issued.

iii) If record and proceedings is received by this Court, it be sent to the Court of J.M.F.C.,
Khamgaon, expeditiously.

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 Gajanan Maroti More vs Sou. Durga @ Radha Shrikrishna ... on 25 September, 2009

iv) After the record is received, the learned J.M.F.C., Khamgaon shall secure presence of respondent
No.1 before him and comply with the aforesaid order.

v) In view of the above, bail bonds of the accused, of 2006, stand cancelled.

JUDGE wwl

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