Bombay High Court
Vijay S/O Naibrao Jadhav (In Jail) vs The State Of Maharashtra, Through ... on 15 February, 2018
Author: V. M. Deshpande
Bench: V. M. Deshpande
Judg.Cril.Revn.no.137-11.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 137 OF 2011
Vijay Naibrao Jadhav,
Aged about 37 yrs, Occ.Nil.
R/o Panewadi, Tah.Ghansawangi,
Dist.Jalna. .. APPLICANT
...VERSUS...
The State of Maharashtra,
through Police Station Officer,Buldhana Police
Station, Tah.and Dist. Buldhana. .. NON-APPLICANT
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Shri N.B.Kalwaghe, Advocate for the applicant.
Shri.N.S.Rao, APP for the non-applicant.
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CORAM : V. M. DESHPANDE, J.
DATE : February 15, 2018
ORAL JUDGMENT :
1. An interesting point is required to be answered for deciding the present Criminal Revision Application. The point is; whether a Clerk in the office of the Sub-Registrar when was discharging his duties as incharge Sub Registrar was empowered to discharge the duties as Marriage Officer and was empowered to register the marriage under the Special Marriage Act, 1954 and could issue the certificate as contemplated under Section 13 of the Special Marriage Act, 1954?
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2. The present revision application arises out of judgment and order of conviction passed by learned Judicial Magistrate, First Class (2nd Court), Buldhana in Regular Criminal Case No.257 of 2003 dated 5.3.2008 holding the applicant guilty for the offence punishable under Section 495 of the Indian Penal Code and was directed to suffer simple imprisonment for three years and to pay a fine of Rs.2,000/- and in default, to suffer simple imprisonment for four months. The appeal against the said judgment and order of conviction before the Sessions Judge, Buldhana bearing Criminal Appeal No.7 of 2008 was dismissed on 19th September 2011. Hence, this revision.
3. Few facts giving rise to the present revision can be enumerated hereinunder:-
A] A charge-sheet was filed for the offence punishable under Sections 498-A, 420, 468, 494, 495, 496 r/w Section 34 of the Indian Penal Code against the present applicant and three others. The applicant was shown as accused no.1. Accused Nos.2 and 4 were the parents of the applicant, whereas accused No.3-Kavita was the wife of the present applicant. First KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 3/19 Information Report Exh.77 was lodged by Seema Thete (PW-2) against all the accused persons.
B] As per the report, marriage of first informant was solemnized with the applicant on 16.1.2003 in the office of the Marriage Registrar at Buldhana. Prior to the registration of the marriage on 10.12.2002, the first informant and the applicant submitted their application in the office of Marriage Registrar. At that time, it was not disclosed to Seema, the first informant by the applicant or his parents the accused Nos.2 and 4 that the applicant's marriage is already performed with original accused No.3-Kavita. After the marriage, on 16.1.2003 Seema went to her matrimonial house as per the First Information Report. Thereafter she was subjected to cruelty at the hands of the applicant for demanding money from her parents. Not only that, he withdrew all the amount which was deposited by the parents of the first informant in an account in her name in the Post Office. It is further stated in the First Information Report that on 26.3.2003 the first informant found a file containing some documents which contains a letter issued by Social Welfare Officer addressed to the applicant and the said was in respect of KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 4/19 inter caste marriage of the applicant. That gives suspicion in the mind of the first informant and she gave a telephonic call to her father. Accordingly, her father PW-1 Pralhad Thete came at her matrimonial place at Jalna. The letter was shown to him.
Thereafter, PW-1 Pralhad Thete made an inquiry and during inquiry it was revealed to him that present applicant on 21.6.2002 had performed the marriage with one Kavita (accused no.3) at Aurangabad and the said was a registered marriage. A complaint therefore was lodged with Police Officer, Buldhana by Seema- PW-2. In spite of knowing that the applicant was already married, he has performed his marriage with the first informant.
C] A crime was registered with Police Station Buldhana vide Crime No.72 of 2003 by Police Station Officer. The investigation in the crime was done by two investigating officers; Mahadev Darade (PW-6) and Avinash Gir (PW-7) (though they are wrongly shown as PW-5 only). Avinash Gir, PSI received the case diary of Crime No.72 of 2003 for investigation. He recorded the statement of the first informant. He seized a pass book of first informant (Exh.75). He also recorded statement of relatives of the first informant and caused arrest of the accused persons. KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 5/19 D] Investigating officer Mahadev Darade carried further investigation. He obtained marriage certificates of marriage in between applicant and Kavita (Accused No.3) and marriage certificate of applicant with the first informant. He also filed charge-sheet before the Court of law.
E] The learned Chief Judicial Magistrate, Buldhana framed charge against the applicant and other accused persons for the offences punishable under Sections 494 r/w Section 107, 495, 496 and 498-A r/w Section 34 of the Indian Penal Code. All the accused persons abjured their guilt and claimed for their trial.
F] In order to bring home the guilt of the accused persons, the prosecution has examined in all seven witnesses and also relied on various documents mainly Exh.74, the marriage certificate between the applicant and the first informant and Exh.93 the marriage certificate between applicant and accused No.3-Kavita.
G] PW-1 Pralhad Thete and PW-4 Anant Thete are father and brother of first informant-Seema. These two persons KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 6/19 are primarily examined by the prosecution to show that prior to the marriage of the applicant with Seema, it was never disclosed either to Seema or to them by the applicant and/or his parents about the factum of marriage of applicant with Kavita. PW-2 Seema is complainant and the wife of the applicant. Ananta Deshmukh the Sub Registrar was examined by the prosecution to prove the marriage certificate (Exh.74) in respect of the marriage of the applicant with first informant Seema. Whereas; Ashok Nanaji Salve was examined by the prosecution to prove marriage between applicant and original accused No.3-Kavita and he proved Exh.93. The learned Judicial Magistrate First Class (2 nd Court), Buldhana, who ultimately conducted trial, acquitted original accused Nos.2 to 4 of all the charges. Applicant was also acquitted of the offence punishable under Sections 494, 496, 498-A. However, he was convicted for the offence punishable under Section 495 of the Indian Penal Code.
H] Though, the applicant carried an appeal challenging his conviction, the prosecution did not challenge the order of acquittal, acquitting the remaining accused persons and also the acquittal of the applicant from the rest of the offences. KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 7/19
4. I heard Shri.Nilesh Kalwaghe, the learned counsel for the applicant and Shri.N.S. Rao, the learned Additional Public Prosecutor for the State. The main thrust of submission of the learned counsel for the applicant is that the prosecution has not proved the marriage between the applicant and Kavita at all. He submitted that merely because there is a certificate of their marriage in that behalf the said cannot be accepted since the person who has given the said certificate or before whom the marriage was performed was not empowered under the Special Marriage Act, 1954 and therefore, once the first marriage itself is not proved in accordance with the law, in his submission the said marriage is non est and therefore, the applicant cannot be hold guilty for the offence punishable under section 495 of the IPC. He took me through various provisions of the Special Marriage Act 1954 (hereinafter referred to as the 'Act' for the sake of brevity). He also invited my attention to a Full Bench decision of Madhya Pradesh High Court in Girja Shankar Shukla V. Sub-Divisional Officer reported in AIR 1973 Madhya Pradesh 104 and also relied on the decision in the matter of Ajabsingh V.Gurbachan Singh and others, reported in AIR 1965 SC (Constitution KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 8/19 Bench) 1619. To buttress his submission that Ashok Salve the prosecution witness was not a person empowered to perform the marriage between applicant and Kavita and to issue certificate Exh.93.
5. Per contra, the learned Additional Public Prosecutor would submit that the prosecution has proved its case by placing on record Exh.93. He submitted that during the subsistence of the marriage between Kavita and applicant, the present applicant performed his marriage with first informant Seema and therefore, the applicant was rightly convicted by both the Courts below for the offence punishable under Section 495 of the IPC and submitted that the revision is devoid of any substance and is liable to be dismissed.
6. Even according to the prosecution, both the marriages of applicant were performed with Kavita and Seema as per the provisions of the Act. At no point of time the applicant has disputed the genuineness of the documents Exh.93 or Exh.74. Not only that a certified copy of judgment and decree passed by learned 4th Additional District Judge, Buldhana in Special KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 9/19 Marriage Petition No.1 of 2003 is also available on record at Exh.80. By this judgment the competent Civil Court gave a declaration that the marriage performed with Seema by the applicant is a nullity under the provisions of Section 24 of the Special Marriage Act on the petition filed by first informant Seema. It is to be noted that there is nothing available on record to show that what was the ultimate fate of marriage in between the applicant and Kavita. In view of this position that emerges on record, this Court is expected to answer the question as to whether the prosecution has proved marriage of applicant with Kavita, in accordance with the provisions of Special Marriage Act, 1954 and/or Exh.93 can be considered as the conclusive proof in respect of their marriage. If the answer of this question is affirmative then there will be no difficulty to record any other finding as recorded by both the Courts below.
7. Under the Special Marriage Act, the marriage officers are appointed. Section 3 of the Act states that, for the purposes of this Act the State Government may, by notification in Official Gazette appointed one or more Marriage Officer for the whole or any part of the State.(Emphasis supplied).
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8. Chapter-II of the Act deals with the solemnization of Special Marriages. Section 4 deals with the condition in respect of solemnization of Special Marriages. Section 5 deals with the Notice of Intended Marriage. As per this provision, when a marriage is intended to be solemnized under this Act, the parties are required to give in writing any form specified in second schedule to the Marriage Officer (emphasis is supplied ) of the District which at least one of the parties with the marriage has resided for a period of not less than thirty days immediately proceeding the date on which such notice is given.
9. Section 6 states that the marriage officer shall keep all notices given under Section 5 with the records of his office and is required to forthwith enter a true copy of such notice in a book prescribed for that purpose and that book is to be called as Marriage Notice Book. The said book as per law is open for inspection at all reasonable times, without fee, to a person desirous of inspecting the same. Under Sub section 2 of Section 6, the Marriage Officer is under bounden duty to publish the notice of intended marriage at a conspicuous place in his office by affixing the copy thereof.
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10. Section 7 of the Act deals with the objection a person who desires to raise objection as to raise the same power to expiry of 30 days of publication of notice.
11. Section 9 enumerates power of Marriage Officers in respect of the inquiries. Section 9 states that a Marriage Officer shall have all the powers vested in Civil Court under the Code of Civil Procedure, 1908 when trying a suit.
12. Section 11 deals with declaration by parties and witnesses. Before the marriage is solemnized, the parties and three witnesses in presence of Marriage Officer are required to sign the declaration in the form specified in third schedule and the said declaration is required to be counter-singed by the Marriage Officer.
13. As per Section 12, the Marriage can be solemnized at the office of the Marriage Officer, or to such other place within a reasonable distance therefrom as the parties may desire, on payment of additional fees.
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14. Section 13 deals with the Certificate of Marriage and the provision is reproduced herein below:
''13. Certificate of Marriage-(1)When the marriage has been solemnized, the Marriage Officer shall enter a certificate thereof in the Form specified in the Fourth Schedule in a book to be kept by him for that purpose and to be called the Marriage Certificate Book and such certificate shall be signed by the parties to the marriage and the three witnesses.
(2) On a certificate being entered in the Marriage Certificate Book by the Marriage Officer, the Certificate shall be deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all formalities respecting the signatures of witnesses have been complied with''.
15. From the perusal of Section 13 what is important to note is that the certificate being entered in the marriage certificate book by the marriage officer shall deemed to be conclusive evidence of the fact that a marriage under this Act has been solemnized and that all the formalities respecting the signature of the witnesses have been complied with. Thus the certificates is not a conclusive proof of the marriage. It states that it is a conclusive evidence of the fact that all formalities prior to the marriage was solemnized are performed. KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 13/19
16. From the scheme of the Act, as observed hereinabove, it is clear that steps prior to solemnization of the marriage under the Act and the step after the solemnization of the marriage under the Act is to be performed by Marriage Officer alone. Section 3 specifically states that the State Government by notification in the Official Gazette can appoint one or more Marriage Officers for the whole or any part of the State. Thus, the person who intends to act as a Marriage Officer is to be appointed by the State Government as such in publishing an Official Gazette. In that behalf, it would be necessary to scrutinize the evidence of Ashok Salve, who has issued Exh.93- the marriage certificate between the applicant and Kavita.
17. Exhibit 93 which is brought on record is not an original certificate. It is a certified copy of the Marriage Certificate given by the Office of the Sub Registrar, Aurangabad in respect of the marriage between the applicant and Kavita. The authenticity of Exh.93 is not being disputed by the learned counsel for the applicant, even otherwise, being the certified copy of a public document , the said is admissible in the evidence. KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 14/19
18. As per evidence of Ashok Salve on 21.6.2002 he was working as incharge Sub Registrar at the Sub Registrar Office at Aurangabad. His evidence would show that present applicant and original accused no.3-Kavita along with three witnesses submitted a declaration as contemplated under Section 11 of the Act and after the registration of the marriage, he issued the certificate regarding the marriage of applicant and Kavita. This is the only version which he has given in his examination-in-chief. In the cross examination he has admitted that on 21.6.2012 he was working as a Clerk. His evidence would show that on the said date the Sub Registrar was absent and therefore, he was incharge Sub Registrar. He has admitted in his evidence that the Clerk has no authority to register the marriage. It is also admitted by him that only the Sub Registrars are alloted with the work of marriage registration. He has also stated in his cross- examination that he is not having anything empowering him to act as incharge Marriage Registrar on 21.6.2002.
From the evidence of Ashok Salve following things are emerging:-
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i) This witness is working as a clerk in the office of the Sub Registrar;
ii) On 21.6.2002 that is the date of the Certificate of Marriage between applicant and Kavita, Sub Registrar was absent;
iii) This witness was incharge Sub Registrar;
iv) On 21.6.2002 applicant along with accused No.2 and 3 witnesses came in the office and as per Section 11 gave the declaration and signed the register maintained as per Section 13 of the Act.
v) The clerk has no authority to register the marriage.
vi) Sub Registrars are alloted the work of Marriage Registration and lastly there is nothing with him in writing empowering him to act as a marriage Registrar on 21.6.2002.
19. In that behalf in respect of the empowerment of any incharge person in place of the original authority, it would be necessary to refer the following authoritative pronouncement of the Hon'ble Apex Court in Ajabsingh V.Gurbachan Singh and others, reported in AIR 1965 SC 1619 . In this case, an order of detention was passed under Rule 30(1) of the Defence of India Rules 1962 and the said was challenged. The said order was KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 16/19 passed by Shri Lall Singh as District Magistrate of Amritsar. At that time Shri Lall Sing was Additional District Magistrate of Amritsar and was vested the powers under Section 10 (2) of the Code of Criminal Procedure as that of District Magistrate. A transfer order of Shri Bhalla, the then District Magistrate, was made and instructions were given to Mr. Bhalla and that he should have hand over his charge to Lall Singh who holds the current charge of the post of District Magistrate Amritsar till further orders. No order was passed under Section 10(1) of the Code appointing either Shri Lall Singh or any other officer as District Magistrate of Amritsar. Lall Singh passed impugned order while he was functioning so. It was argued before the Hon'ble Apex Court in support of the order of detention that as Lall Singh was holding a charge of current duties of the office of the District Magistrate and as no one else had been posted to that office he was, in fact, in law the District Magistrate. The Hon'ble Apex Court allowed the appeal and quashed the detention order passed by Shri Lall Singh in paragraph No.9 of the said report in the said judgment the Hon'ble Apex Court has ruled that even if an officer is exercising the power of District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 17/19 District Magistrate until he is appointed a such under Section 10 (1) of the Code. Hon'ble Apex Court has also Ruled and relevant portion is extracted herein below:-
(11) ........As s. 3 (2) (15) of the Act provides that the power of detention cannot be exercised by any officer below the rank of the District Magistrate, such power cannot be exercised by an Additional District Magistrate who is in our opinion an officer below the rank of a District Magistrate. The order of the detention passed by Shri Lall Singh on June 30, 1964 when he was not the District Magistrate of Amritsar but only an Additional District Magistrate is not in accordance with the Act and the Rules and must be set aside''.
20. The another decision of the Hon'ble Apex Court in Harichand V.Batala Eng. Co. Ltd. And ors. Reported in AIR 1969 SC 483 is also on the same line. The Full bench of Madhya Pradesh in Girja Shankar Shukla V. Sub-Divisional Officer cited supra in para no.17 has observed as under:-
''17. From the decisions of the Supreme Court it follows that a person appointed permanently or to officiate on a post holds that rank, whereas a person who is placed only in current charge of duties of a post does not hold that rank. Accordingly, those functions or powers of the post which depend on the rank cannot be discharged by a person who is placed only in current charge of the duties of that post''. KAVITA ::: Uploaded on - 21/02/2018 ::: Downloaded on - 22/02/2018 01:01:55 ::: Judg.Cril.Revn.no.137-11.odt 18/19
21. In the present case admittedly, on a day when the marriage between the applicant and Kavita was solemnized the Marriage Officer appointed under the Act was not present. A person before whom the marriage was performed and who gave certificate Exh.93 as contemplated under Section 13 was a Clerk and was incharge Sub Registrar. However, there was no empowerment to him to function as even incharge Marriage Officer. Marriage officers can be appointed only by State Government under Gazette Notification. There was no such empowerment to Ashok Salve. Therefore, the marriage was not performed before the person who was empowered as the Marriage Officer. Therefore, in my view, the prosecution has not proved that the earlier marriage between the applicant and Kavita was performed, in accordance with the law under the Special Marriage Act, 1954 and therefore, the offence under Section 495 which is aggravated form of offence under Section 494 of the Indian Penal Code in my view, is not proved, against the applicant. Consequently, I pass the following order.
ORDER
i) Criminal Revision is allowed.
ii) The judgment and order of conviction passed by learned
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Judicial Magistrate First Class, (2 nd Court) Buldhana dated 5.3.2018 in Regular Criminal Case No.257 of 2003 together with the judgment and order passed by Principal Sessions Judge, Buldhana dated 19.9.2011 in Criminal Appeal No.7 of 2008 convicting the applicant for the offence punishable under Section 495 of the Indian Penal Code are hereby set aside.
iii) The applicant- Vijay Naibrao Jadhav is acquitted of the offence punishable under Section 495 of the Indian Penal Code.
iv) Bail bonds executed by the applicant stands cancelled.
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