Shri Balasaheb Raghunath Katad ... vs Sou Gayabai Balasaheb Katad, Sou ...
2003 Latest Caselaw 162 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioners are assailing correctness, propriety and legality of the order by which the learned Magistrate issued the process against the petitioners for the offences punishable under provisions of Sections 494 and 109 of Indian Penal Code.

2. Miss Smita Mane submitted that the learned Magistrate should not have issued the process in view of provisions of Section 7 of Hindu Marriage Act 1955 (hereinafter referred to as Hindu marriage Act for convenience), because, according to Section 7, unless all necessary ceremonies are performed, there would not be a legal marriage between a Hindu man and a Hindu woman. She pointed out that the necessary allegations are lacking in the complaint. Miss Smita Mane submitted that on the contrary, the averments made in the complaint are to the effect that complainant after hearing Mangalastaka and slokas chanted, went to Kushavarta and saw gathering of persons and inferred that her husband was marrying another woman. In addition to that she submitted that the complaint was filed in the year 1988 and even after 10 years, there was no progress in the hearing of the said prosecution. In fact, the learned Magistrate should have discharged the accused, keeping in view of the observations made by the Supreme Court in Rajdeo Sharma's case. Thus, she prayed that a writ of certiorari in view of the provisions of Article 226 of Constitution of India and the appropriate order in view of exercise of the jurisdiction of this Court indicated by Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience) be issued.

3. Shri Saste vehemently opposed and submitted that the observations made by Supreme Court in Rajdeo Sharma's case have been clarified by later judgment and therefore, the action taken by the learned Magistrate in deciding to continue a prosecution was correct, proper and legal.

4. Shri Saste made his bet by repelling the submissions advanced by Miss Smita Mane on other grounds.

5. Section 494 of India Penal Code provides the sentence, which may extend to seven years. Therefore, the Magistrate was required to follow the procedure which has been indicated for the trials connected with warrant case procedure. After recording the initial statements of the complainant, the Magistrate was obliged to give a considerate judicial application of mind to the evidence which was given by the complainant making out a case for her in the said prosecution, for the purpose of enabling him to come to the conclusion, whether there was a point in proceeding further or whether he should discharge the accused/petitioners. the complaint of the complainant was revolving around the offence which has been indicated by Section 494 of Indian Penal Code and the complaint was with the allegations that in spite of a legally wedded wife alive (original complainant), her husband one of the accused, one of the petitioners was performing a marriage with another woman at Trimbakeshwar. Therefore, the learned Magistrate was obliged to give a consideration of provisions of Section 7 of Hindu Marriage Act which provides:

"A Hindu Marriage may be solemnised in accordance with the customary rites and ceremonies of either party thereto.

Sub-section (2) Where such rites and ceremonies include the "Saptapadi" (that is the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh steps is taken."

He was obliged to keep in mind that there was no averment in the complaint that customary rites and ceremonies prevalent in the caste or tribe, if any, to which the complainant and her husband were belonging, were performed or that Saptapadi was not a necessary ceremony of the marriage. So far as, present complaint is concerned, the allegations if taken together, make out only a case that she went to Kushavarta by hearing chanting of slokas and Mantras and after she went near the said assembly, she found that ceremony was in progress and there was chanting of Mantras an slokas and nothing more than that. When substantive evidence was available, it was the duty of the Magistrate to give a considerate judicial application of the mind to it and come to the conclusion that there was no case made out for even framing the charge. He was required to keep in mind that the original complainant was not able to give names of the persons, who were gathered there in the said assembly.

6. Judicial application of mind is utmost necessary for every criminal trial, for adjudication may be at the stage of final adjudication or even at the time of framing of the charge.

7. Keeping in view the provisions embodied in chapter XIX of the Code, the order which was passed by the learned Magistrate later on would be taken to be an order expressing his intention to proceed with the trial and therefore, when that was lacking the judicial application of the mind and indicating the act of ignoring the quality of evidence, which was taken on record through further examination of the complainant, the order which has been put to challenge by this writ petition suffers from legal infirmities and assumes the nature of an illegal order. What is illegal cannot be permitted to survive for a moment and, therefore, this Court has to quash it by issuing a writ of certiorari by exercising the jurisdiction and powers indicated by provisions of Article 226 of Constitution of India and Section 482 of Criminal Procedure Code. Thus, petition has to be allowed and the order which has been assailed has to be quashed. Thus petition is allowed, but keeping in view that the aggrieved persons are spouses, no order as to costs. The record if called be dispatched to the trial Court.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer /Sheristedar of this Court.