Bombay High Court
Pandurang Nagnath Malwade & ... vs Surekha Umarkant Kasole & State Of ... on 22 August, 2016
Bench: V.K. Jadhav
1 CRI WP 119.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 119 OF 2005
1. Pandurang s/o Nagnath Malwade,
age 56 yrs, Occ. Agriculturist.
2. Sow Shila w/o Pandurang Malwade,
age 45 yrs, Occ. Household and
Agriculturist.
Both Resident of Bori, Tq. & Dist.
Latur.
3. Sow Nirmala w/o Magan Pachphule,
age 45 yrs, Occ. Household & Agriculturist,
4. Balaji s/o Magan Pachphule,
age 21 yrs, Occ. Labour.
Both R/o Yelamwadi, Tq. Mohal,
District. Solapur. ..Petitioners..
VERSUS
1. Surekha w/o Umakant Kasole,
age 28 yrs, Occ. Household,
R/o Basweshwar Chowk,
Sampate Niwas, Kava Naka,
Tq. & Dist. Latur.
2. The State of Maharashtra,
(Copy to be served through PP
High Court of Judicature at
Bombay, Bench at Aurangabad.) ....Respondents..
(R-1 orig complt)
...
Advocate for Petitioners : Smt S L Pansambal h/f V D Gunale
Advocate for Respondent 1 : Mr A N Nagargoje
APP for Respondent 2: Mr P G Borade
...
::: Uploaded on - 24/08/2016 ::: Downloaded on - 25/08/2016 00:27:32 :::
2 CRI WP 119.2005.odt
...
CORAM : V.K. JADHAV, J.
Dated: August 22, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the order of issuance of process
passed by the 4th Judicial Magistrate First Class, Latur
dated 16.12.2003 under section 494 read with section
109 of the Indian Penal Code below Exh.1 in RCC
No.720/2003 and confirmed by the learned 2 nd
Additional Sessions Judge, Latur by its judgment and
order dated 13.1.2005 in Criminal Revision Application
No.51/2004, the original accused nos. 9,10,15 and 17
respectively preferred this writ petition.
2. Brief facts, giving rise to the present writ petition,
are as follows :-
Respondent No.1 filed a private complaint against
accused nos. 1 to 46 under section 494, 109 of Indian
Penal Code and said case is registered as R.C.C.
No.720/2003. It has alleged in the complaint that,
original accused no.1 is husband and accused no.2 is
his second wife. Though complainant's marriage with
accused no.1 is performed in the year 1985 and she
3 CRI WP 119.2005.odt
begotten one son and one daughter out of that wed-lock,
accused no.1 had performed second marriage with
accused no.2 by subjecting the complainant with cruelty
on account of non-fulfillment of certain unlawful
demands. After recording verification statement of the
complainant, the learned Judicial Magistrate First
Class, Latur by order dated 16.12.2003 issued process
against all the accused persons as aforesaid. Being
aggrieved by the same, the present petitioners
approached the Sessions Court and the learned 2 nd
Additional Sessions Judge, Latur by its impugned
Judgment and order dated 13.1.2005 dismissed the
Criminal Revision Application No.51/2004. Hence, this
writ petition.
3. The learned counsel for the petitioners submits
that, in the complaint most particularly in paragraph
No.3 of the complaint there are allegations against the
present petitioners to the extent that they have attended
the said marriage and thrown rice on the couple.
Learned counsel submits that, mere presence at the
commission of a crime even with the awareness that a
4 CRI WP 119.2005.odt
crime was being committed is not in itself an intentional
aid. Even accepting that the petitioners were knowing
that the original accused no.1 was celebrating a void
marriage and he was committing an offence punishable
under section 494 of Indian Penal Code, merely by
throwing holy rice on the couple, the provisions of
Section 109 of the Indian Penal Code cannot be
attracted. The learned counsel further submits that, so
far as present petitioners are concerned, it has no where
alleged in the complaint that they are the influential
persons of the village and their mere presence in the
marriage itself is sufficient to facilitate the commission
of crime. Learned counsel in order to substantiate her
submissions placed her reliance on a Judgment in case
of Malan w/o Rama and others Vs. State of Bombay
and another reported in AIR 1960 Bombay 393.
4. Learned counsel for respondent-original
complainant submits that, the present petitioners are
the near relatives of original accused no.1-husband.
They were knowing that accused no.1 was celebrating a
void marriage. Even they remained present at the time
5 CRI WP 119.2005.odt
of celebration of said marriage and, during the
performance thereof they threw holy rice on the couple.
Learned counsel submits that, in the given set of
allegations explanation No.2 of Section 107 of the Indian
Penal Code stands attracted. Learned counsel submits
that, the scope of inquiry under section 202 of the
Criminal Procedure Code is extremely restricted only to
finding out the truth or otherwise of the allegations
made in the complaint. The Magistrate has to find out
prima facie whether a case is made out for issuance of
process. The question whether the evidence is adequate
for supporting the conviction can be determined at the
time of trial and not at the stage of inquiry as
contemplated u/s 202 of Criminal Procedure Code.
Learned counsel submits that, whether present
petitioners are the influential persons or not and
whether their mere presence in the marriage is
sufficient to facilitate the crime, can be seen during the
course of the Trial. Learned counsel submits that, the
Trial Court as well as the Sessions Court found that
prima facie case exists against the accused persons
including the petitioners and accordingly issued process
6 CRI WP 119.2005.odt
against them. No interference is required. There is no
substance in the writ petition and the writ petition is
liable to be dismissed.
5. The learned counsel for the respondent No.1 in
order to substantiate his submissions places reliance on
the following judgments :-
1. Jacob Harold Aranha and Anr. Vs. Mrs. Vera
Aranha and another decided on 23.6.1978.
2. Mohinder Singh Vs. Gulwant Singh and others
reported in AIR 1992 SC 1894.
6. On careful perusal of the complaint, most
particularly paragraph no.3 of the complaint, it appears
that, allegations have been made to the limited extent
that present petitioners have attended said marriage
and they have thrown holy rice on the couple at the time
of celebration of said marriage. It has also stated in the
complaint that, present petitioners are the close
relatives of original accused and they were knowing that
accused no.1 was celebrating void marriage and he was
committing an offence punishable u/s 494 of the Indian
Penal Code. Even accepting said allegations as it is, in a
case of Malan w/o Rama and others (supra) cited by the
7 CRI WP 119.2005.odt
learned counsel for the petitioners, this Court had an
occasion to reiterate the proposition that mere presence
at the time of commission of a crime even with the
awareness that a crime was being committed is not in
itself an intentional aid as defined under Section 107 of
the Criminal Procedure Code. This Court has also
considered that, in some cases in which persons may
occupy a position of influence and rank so that their
presence may mean encouragement to commit the
crime, and their very influence should be regarded as
abettors. In the case in hand, there are no allegations
that the present petitioners are the influential persons
or high rank persons and their mere presence at the
time of performing a void marriage by accused no.1 was
sufficient to facilitate the commission of said crime.
Furthermore, as observed by this Court, throwing of the
rice on the couple was not a necessary part of the
ceremony in the performance of a valid marriage. It is
well known that, throwing of a holy rice in any marriage
is ordinarily done by all the spectators who remained
present at the time of marriage.
8 CRI WP 119.2005.odt
7. It is true that, inquiry as contemplated under
Section 202 of Criminal Procedure Code is extremely
limited and the ascertainment of the proof or falsehood
of the allegations made in the complaint can be
examined only on the basis of the material placed by the
complainant before the Court. Even though, the
allegations made in paragraph no.3 of the complaint are
accepted as it is, I do not find that a prima facie case is
made out for issuance of the process. Respondent No.1-
original complainant has filed the complaint against
near about 46 accused persons including the present
petitioners. There are no specific allegations prescribing
the individual role so far as the present petitioners are
concerned and it is simply alleged that they have thrown
holy rice on the couple. I do not find that even, prima
facie, ingredients of Section 107 of the Indian Penal
Code, stands attracted in this case. In view of this, the
order passed by the 4th Judicial Magistrate First Class,
Latur and confirmed by the learned 2 nd Additional
Sessions Judge, Latur, therefore, certainly calls for an
interference to the extent of present petitioners. Hence,
I proceed to pass the following order.
9 CRI WP 119.2005.odt
O R D E R
I. Writ petition is hereby allowed.
II. The order passed by the 4th Judicial
Magistrate First Class, Latur dated
16.12.2003 in RCC No.720 of 2003 and
confirmed by the 2nd Additional Sessions
Judge, Latur dated 13.1.2005 in Criminal
Revision Application No.51 of 2004 against
the present petitioners only is hereby
quashed and set aside.
III. The complaint/RCC No.720 of 2003
against the present petitioners stands
dismissed. Rule is made absolute in above
terms.
IV. Writ Petition is accordingly disposed of.
V. Considering the old pendency of RCC
No.720 of 2003, the learned Judicial
Magistrate First Class, Latur is hereby
directed to dispose off the said case, as
expeditiously as possible, preferably within
a period of SIX MONTHS from today.
sd/-
( V.K. JADHAV, J. )
...
aaa/-
