Bombay High Court
Sakhubai W/O Vithan Waghmode vs Vithal @ Baba Sampat Waghmode And ... on 13 December, 2016
Bench: Z.A. Haq
(1) crirev118.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.118 OF 2015
Sakhubai w/o. Vithal Waghmode ..Applicant
Age. 32 years, Occ. Household,
R/o. Doiphadwadi, Tal. Georai,
At present R/o. Shindewadi,
Tal. Georai, Dist. Beed.
Versus
1.
Vithal @ Baba Sampat Waghmode
Age. 35 years, Occ. Agriculture,
..Non-applicants
2. Aashrabai w/o. Sampat Waghmode
Age. 59 years, Occ. Household,
3. Sampat Sahebrao Waghmode
(Accused No.3 died-Abated)
4. Saibai w/o. Sahebrao Waghmode
Age. 75 years, Occ. Nil,
5. Laxman Sampat Waghmode
Age. 25 years, Occ. Agriculture,
6. Shivkanya Sampat Waghmode
Age. 23 years, Occ. Nil,
All above R/o. Doiphadwadi,
Tal. Georai, Dist. Beed.
7. Babasaheb Kondiba Hake,
Age. 57 year, Occ. Nil,
8. Kuntabai w/o. Babasaheb Hake,
Age. 55 years, Occ. Household,
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9. Kondiba Babasaheb Hake,
Age. 33 years, Occ. Agri.,
10. Rukminibai w/o. Kondiba Hake,
Age. 29 years, Occ. Household,
Accused Nos.7 to 10 all are
R/o. Chavanwadi, Tal. Georai,
Dist. Beed.
11. State of Maharashtra,
Through Police Station, Chaklamba,
Tal.Georai, Dist. Beed.
Mr.Ram B. Deshpande, Advocate for the applicant.
Mr.S.J. Salunke, Advocate for respondent Nos.1,2,4 to 10.
CORAM : Z.A. HAQ,J.
DATED : 13.12.2016
ORAL JUDGMENT :-
. Heard.
02. Rule. Rule made returnable forthwith.
03. The applicant/complainant has challenged the
judgment passed by the learned Magistrate acquitting non-
applicant Nos.1 to 10/accused of the offence punishable
under sections 498-A, 323, 504, 506 read with section 34
of the Indian Penal Code. The applicant/ complainant has
also challenged the judgment passed by the Sessions Judge
dismissing the appeal filed by the State of Maharashtra
and maintaining the judgment by which the accused are
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acquitted.
04. The submission on behalf of the applicant is
that the accused were charge-sheeted for offence
punishable under sections 498-A, 323, 504, 506 read with
section 34 of the Indian Penal Code and for offence
punishable under sections 4 & 5 of the Dowry Prohibition
Act and process was also issued accordingly, however, the
learned Magistrate has not adverted to the charges
levelled against the accused for the offence punishable
under sections 4 & 5 of the Dowry Prohibition Act. It is
submitted that the learned Sessions Judge has also failed
to appreciate this aspect. It is prayed that the impugned
judgment passed by the learned Magistrate and maintained
by the Sessions Court cannot be sustained and are
required to be set aside and the matter has to be remited
to the learned Magistrate for re-trial.
05. The learned Advocate for the accused has taken
preliminary objection to the maintainability of the
revision application on the ground that the applicant/
complainant being the victim has remedy under section 372
of the Criminal Procedure Code. On merits of the matter
it is submitted that the judgment passed by the
Magistrate acquitting the accused and maintained by the
Sessions Court does not require any interference. It is
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argued that the prayer for re-trial cannot be granted, as
it is not a fit case to order re-trial.
06. The submission made on behalf of the accused
regarding maintainability of this revision application
under section 397 of the Criminal Procedure Code cannot
be accepted as the judgment passed by the learned
Magistrate acquitting the accused was challenged by the
State of Maharashtra in appeal before the Sessions Court,
which is dismissed and the applicant has challenged the
appellate judgment also.
07. The learned Magistrate has overlooked the fact
that the accused were also charged for the offence
punishable under sections 4 & 5 of the Dowry Prohibition
Act. There is apparent failure on the part of the
learned Magistrate to exercise the jurisdiction vested in
him and therefore the judgment passed by him is
unsustainable in law. The learned Sessions Judge has also
failed to appreciate this aspect and therefore the
judgment passed by him is also required to be set aside.
08. I am conscious that the order of re-trial should
not be ordinarily passed and it should be ordered in
exceptional case, but at the same time, it cannot be
overlooked that the Trial Magistrate has not adverted to
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the fact that the accused are charged for the offence
punishable under sections 4 & 5 of the Dowry Prohibition
Act.
. In the above facts and situation, the following
order is passed :-
(i) The judgment passed by the learned
Magistrate in R.C.C. No.76 of 2007 on
05.12.2013 is set aside.
(ii) The judgment passed by the
Sessions Court in Criminal Appeal No.24 of
2013 on 13.04.2015 is set aside.
(iii) The matter is remitted to the
Court of J.M.F.C. (Court No.4) Georai for
fresh decision.
(iv) The prosecution shall not be
permitted to lead further evidence,
however, it will be open for the Court to
exercise its powers and jurisdiction under
section 311 of the Criminal Procedure Code,
if felt necessary.
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(v) The parties undertake to appear
before the learned J.M.F.C., Georai (Court
No.4) on 16.01.2017 at 11.00 a.m. and abide
by the further orders in the matter.
(vi) Rule made absolute in the above
terms. In the circumstances, the parties to
bear their own costs.
[Z.A. HAQ,J.]
snk/2016/DEC16/crirev118.15
