Vishram S/O Shripat Wankhede ... vs The State Of Maharashtra Through ...
2005 Latest Caselaw 115 Bom

JUDGMENT

S.T. Kharche, J.

Page 1472

1. By invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, this petition is filed challenging the order dated 30/11/2001 Page 1473 passed by the learned Judicial Magistrate, First Class in private Complaint Case No. 462/2000 whereby the learned Magistrate reconsidered the matter for issuing of process against the petitioner-original accused No. 2 and co-accused Nos. 3 and 8 and directed that process be issued against them for the offence punishable under Section 494 read with Section 109 of the Indian Penal Code.

2. Mrs. Maldhure, the learned Counsel for the petitioner-accused contended that a private criminal complaint has been filed by respondent No. 2 Ujjawala in the Court of the learned Judicial Magistrate, First Class wherein it was alleged that Ujjawala is legally wedded wife of Jaideo Wankhede and that her husband had performed the second marriage with one Baby, original accused No. 7, on 30/4/2000, Accused Nos. 2 and 3 are the parents of accused No. 1 and after taking the verification, the learned Magistrate, on 3/10/2000 directed to issue process against the accused Nos. 1, 7 and 11 only for the offence punishable under Section 494 read with Section 109 I.P.C. However, he declined to issue process against accused No. 2, i.e. the petitioner and the co-accused Nos. 3 to 6 and 8 to 10. Respondent Ujjawala, being aggrieved by this order filed criminal revision No. 243/2000 before the learned Sessions Judge which came to be allowed partly on 6/10/2001. The learned Sessions Judge remanded the matter back to the learned Magistrate for reconsideration with the observations that prima-facie case exists against the original accused No. 2, i.e. the petitioner for the offence punishable under Section 494 read with Section 109 I.P.C.

3. Mrs. Maldhure contended that though the revision has been partly allowed, the learned Magistrate, without reconsideration of the matter only perused the certified copy of the judgment of the learned Sessions Judge in criminal revision and issued the process against the accused persons for the offence punishable under Section 494 read with Section 109 I.P.C including the petitioner- original accused No. 2. Mrs. Maldhure contended that as per the averments made in the complaint, the original accused No. 2 had only cooperated for the second marriage and he was also present at the time of the second marriage. According to her mere presence at the time of the second marriage would not be sufficient to draw an inference that the petitioner-accused No. 2 has abeted the offence under Section 494 I.P.C. She contended that in such circumstances, the learned Magistrate has committed an error in issuing process against the petitioner original accused No. 2, and therefore, the impugned order deserves to be set aside so far as the petitioner is concerned. In support of her submission she relied on the decision of this Court in the case of Malan w/o Rama and Ors. v. State of Bombay and Anr., AIR 1960 Bombay 393.

4. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the petitioner. It is not in dispute that Ujjawala has instituted a private criminal complaint against as many as 11 accused persons and the learned Magistrate, initially had declined to issue process against the petitioner for the offence punishable under Section 494 read with Section 109 I.P.C. Perusal of the judgment of the revisional Court it would reveal that the petitioner is the father of accused No. 1 and the latter has performed the second marriage in presence of all the accused who are arrayed Page 1474 in the complaint. The learned Sessions Judge look the view that the allegations are made in the complaint and the verification of the complainant and the eye witness Harinarayan would show that accused Nos. 2 and 3 are parents of accused No. 1 and both the complainant and her witness have stated in the verification that accused Nos. 2 and 3 were present when the second marriage was performed. The Sessions Judge, on scrutiny observed that if at all second marriage is performed, then it cannot be disputed that: the parents of accused No. 1 had knowledge about the first marriage of accused No. 1 and the abetement can be inferred. Similarly accused No. 8 is the father of accused No. 7, the alleged second wife and against these persons also witness has stated that accused No. 8 was present when the second marriage was performed. Being the father of accused No. 7, accused No. 8 must have knowledge regarding the first marriage of accused No. 1 and these circumstances are not taken into consideration by the learned J.M.F.C. when he declined to issue process against the petitioner and other accused. He, therefore, held that a prima facie case has been made out for proceeding against the petitioner, and therefore, he remanded the matter back to the learned J.M.F.C. for reconsideration of the case as against original accused Nos. 2, 3 and 8 for the reasons mentioned in the said judgment.

5. The learned J.M.F.C., on 30/11/2001 had passed the following order;

"Perused the certified copy of revision bearing No. 243/2000. As per the order of the District and Sessions Court and also I personally reconsidered this matter to issue process against the accused Nos. 2, 8 and 8. Hence, the following order;

Order: Issue process under Section 494 read with 109 I.P.C. against the accused Nos. 2, 3 and 8."

6. What transpires from the aforesaid factual position is that the petitioner was not only present at the time of second marriage of his son, but as per the allegations mentioned in the complaint he also cooperated in performance of the second marriage. In such situation, it is not possible to accept the submissions of the learned Counsel for the petitioner that the learned Magistrate did not reconsider the matter when he issued process against the petitioner for the offence punishable under Section 494 read with Section 109 I.P.C.

7. The decision of this Court, in the case of Malan w/o Rama and Ors. v. State of Bombay and Anr. AIR 1960 Bombay 393 on which reliance is placed by the learned Counsel for the petitioner would not be applicable to the facts and circumstances of the present case though it has been observed in that case that; mere presence at the commission of a crime even with the awareness that a crime was being committed is not in itself an intentional aid. Tills Court, on scrutiny of the material available on record had set aside the conviction of the accused for the offence punishable under Section 494 read with Section 414 I.P.C. Here, in the present case the evidence is yet to be recorded and only after recording the evidence, the Court can consider as to whether the accused are to be acquitted for the offence of abetment punishable under Section 109 I.P.C. This Court only requires to find out as to Page 1475 whether a prima facie case exists for proceeding against the accused petitioner and in that context the learned Sessions Judge was perfectly justified in observing that since the accused petitioner is the father of accused No. 1, who has performed second marriage and since he had cooperated in the second marriage, a prima facie inference could be drawn that he has abeted the commission of crime punishable under Section 494 read with Section 109 of the Indian Penal Code.

8. No fault could be found with the impugned order passed by the Magistrate who has reconsidered the matter and issued process against the petitioner, as per the directions of the learned Sessions Judge. There is no merit in this petition. The petition is dismissed.