Bombay High Court
Ramesh Shankar Mahajan & Ors vs Mrs Mirabai Ramesh Mahajan on 2 September, 2016
Author: V.K. Jadhav
Bench: V.K. Jadhav
Cri.Appln.2010/2005
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2010 OF 2005
1. Ramesh s/o Shankar Mahajan,
Age 45 years, Occu. Labour,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
2. Vimal w/o Ramesh Mahajan,
Age 31 years, Occu. Labour,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
(The name of Respondent No.2 is actually Vimal, however,
summons are served to her in the complaint in the name
Pramila and she is described as Pramila in the complaint.
She is filing this petition in her actual name Vimal)
3. Shankar s/o Shivram Mahajan,
Age 61 years, Occu. Pensioner,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
4. Ganesh s/o Shankar Mahajan,
Age 33 years, Occu. Labour
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
5. Gitabai w/o Bapu Mahajan,
Age 56 years, Occu. Household
R/o Waghod, Taluka Raver,
District Jalgaon
6. Murlidhar s/o Bapu Mahajan,
Age 34 years, Occu. Labour
R/o Waghod, Taluka Raver,
District Jalgaon
7. Jagganath s/o Namdeo Patil,
Age 56 years, Occu. Labour
R/o Waghod, Taluka Raver,
District Jalgaon
8. Sharjabai w/o Jagannath Patil,
Age 51 years, Occu. Household
R/o Waghod, Taluka Raver,
District Jalgaon
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Cri.Appln.2010/2005
2
9. Raghunath s/o Rambahu Mahajan,
Age 51 years, Occu. Agri.,
R/o Waghod, Taluka Raver,
District Jalgaon
10. Chudaman s/o Baburao Patil,
Age 49 years, Occu. Agri.,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
11. Padmabai w/o Chudaman Patil,
Age 30 years, Occu. Household
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
12. Digambar @ Digaram Bhataji
(Joshi), Age 61 years, Occu.Nil
R/o Waghod, Taluka Raver,
District Jalgaon ..Petitioners
Versus
. The State of Maharashtra through
its Investigation Officer ..Respondent
Mr D.M. Mane, Advocate h/f Mr Milind Patil, Advocate for petitioners
Mr P.G. Borade, A.P.P. for respondent
CORAM : V.K. JADHAV, J.
DATE : 2nd September 2016
ORAL JUDGMENT
Leave to correct the prayer clause.
2. Being aggrieved by the order dated 5 th July 2005 passed below Exh.48 in R.C.C. No.69/2004 by Judicial Magistrate, First Class, Raver, the original accused have approached this Court by filing the present criminal application.
3. Brief facts, giving rise to the present application are as follows:
4. Deceased wife of petitioner No.1 had filed complaint before the Magistrate against the petitioners for having committed offence under ::: Uploaded on - 02/09/2016 ::: Downloaded on - 04/09/2016 00:52:07 ::: Cri.Appln.2010/2005 3 Sections 494, 109 read with Sec.34 of Indian Penal Code and accordingly, the case is registered as R.C.C. No.69/2004. The learned Magistrate by order dated 15 th July 2004, issued process against all the accused for the offence punishable under Section 494 of Indian Penal Code. The applicants-accused, on their appearance before the Magistrate, filed an application Exh.48 for recalling the order of issuance of process on the ground that the petitioner No.1 - husband had filed Hindu Marriage Petition bearing Petition No.34-A/2003 against his wife before Additional District Judge, Burhanpur, District Khandwa and the learned Additional District Judge, Burhanpur, by judgment and order dated 8th May 2003 dissolved the marriage by decree of divorce and by suppressing the said fact, the complainant -
Mirabai has lodged the complaint before the Court for the offence punishable under Section 494 of Indian Penal Code. The learned Magistrate, however, by order dated 5th July 2005 passed below Exh.48 in the said case refused to recall the order of issuance of process only on the ground that he cannot review his own order of issuance of process. Hence the present application.
5. Learned Counsel for the petitioners-original accused submits that the petitioner No.1-husband obtained a decree of divorce by presenting Hindu Marriage Petition before the competent Court and accordingly, the relation as husband and wife between petitioner No.1 and Mirabai was not subsisting on the alleged date of having committed offence punishable under Section 494 of Indian Penal Code. Learned Counsel submits that the order passed by the learned Magistrate for issuance of process for the offence punishable under ::: Uploaded on - 02/09/2016 ::: Downloaded on - 04/09/2016 00:52:07 ::: Cri.Appln.2010/2005 4 Section 494 of Indian Penal Code is liable to be quashed and set aside and the complaint filed by Mirabai bearing R.C.C. No.69/2004 is liable to be dismissed.
6. Leaned Counsel for the petitioners, in order to substantiate his submissions, placed reliance on the following two judgments of Apex Court :
(I) Krishna Gopal Divedi Vs. Prabha Divedi, reported in (2002) 10 SCC 216;
(II) Pashaura Singh Vs. State of Punjab & Anr., in Criminal Appeal No.2122 of 2009 (arising out of SLP (Cri.) No.5910/2006)
7. I have also heard the learned A.P.P. for the State.
8. So far as the penal provisions of Section 494 of Indian Penal Code are concerned, it requires the ingredients namely (a) the accused must have contracted first marriage; (b) he must have married again; (iii) first marriage must be subsisting and spouse must be living. Since the petitioner No.1 had obtained the decree of divorce on 8th May 2003, the relation of petitioner No.1 with complainant - Mirabai as husband and wife was not subsisting on the date of offence i.e. 5th July 2004.
9. In view of the above discussion and in view of the ratio laid down by the Apex Court in the cases cited above relied upon by the learned Counsel for the petitioners, Criminal Application is allowed in terms of prayer clause (A).
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( V.K. JADHAV, J.) vvr ::: Uploaded on - 02/09/2016 ::: Downloaded on - 04/09/2016 00:52:07 :::