Bombay High Court
Sadanand Namdeo Khetre vs The State Of Mah & Anr on 30 November, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 236 OF 2005
Mr. Ujwala w/o Yoganand Khetre,
Age 40 years, Occ.Advocate
R/o. Shahu Nagar, Beed,
Tq. and District Beed ...Applicant
versus
1. The State of Maharashtra,
Copy to be served on Public
prosecutor, High Court,
Aurangabad
2. Nivrutti @ Baban Borkar
Age 42 years, Occ. Agri.
R/o. Hissi, Taluka Sailu,
District Parbhani
3. Mrs. Shobha w/o Nivrutti @ Baban Borkar
Age 37 years, Occ. Agriculture
R/o. Hissi, Taluka Hissi
District Parbhani
4. Muktabaiw/o Prakash Ingale,
Age major, Occ. Household,
R/o. Sailu Road in front of Sugar
Factory, Pathri, Tq. Pathri
District Parbhani
5. Uttam s/o Sadashiv Joshi
Age 40 years, Occ. Agriculture
R/o. Gugali, Damangaon
Tq. Sailu, District Parbhani ...Respondents
.....
Smt. A. D. Rakh, advocate for the applicant
Mr. M.B. Bharaswadkar, A.P.P. For respondent No.1 State.
.....
WITH
CRIMINAL REVISION APPLICATION NO. 468 OF 2004
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cran236.05
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1. Sadanand s/o Namdeo Khetre
Age 73 years, Occ. Agriculture
R/o. Kitti-Adgaon, Tq. Majalgaon
District Beed.
2. Sow. Padmawati w/o Sadanand Khetre
Age 67 years, Occ. Household
R/o. Kitti-Adgaon, Tq. Majalgaon
District Beed.
3. Rukmanand s/o Sadanand Khetre
Age 31 years, Occ. Business,
R/o. Majalgaon, District Beed ...Applicants
versus
1. The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court,
Aurangabad)
2. Sow. Ujwala w/o Yoganand Khetre
Age 40 years, Occ. Advocate
R/o. Shahu Nagar, Beed
District Beed ...Respondnets
.....
Mr. S. S. Choudhari, advocate for the applicants
Mr. M.B. Bharaswadkar, A.P.P. For respondent No.1 State.
Smt. A. D. Rakh, advocate for respondent No.2
.....
CORAM : V. K. JADHAV, J.
DATED : 30th NOVEMBER, 2016
ORAL JUDGMENT:-
1. Since both these matters arise out of one and same complaint
and in view of the order passed by this Court in criminal application
No. 236 of 2005, both these matters are being decided by this
common judgment.
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2. Being aggrieved by the order dated 31.12.2003 passed by
learned Chief Judicial Magistrate, Beed below Exh.1 in R.C.C.
No.130 of 2003 to the extent of dismissal of the complaint against
original accused Nos.3 to 9 and the judgment and order passed by
the III Adhoc Additional Sessions Judge, Beed dated 1.11.2004 in
Criminal Revision Petition No.21 of 2004, confirming thereby the
order passed by the learned C.J.M. Beed to the extent of dismissal of
complaint against original accused No.6 to 9, the original
complainant preferred Criminal Application No.236 of 2005 and being
aggrieved by the judgment and order passed by the III Adhoc
Additional Sessions Judge, Beed in aforesaid Criminal Revision
Petition No.21 of 2004, original accused Nos. 3 to 5 approached this
Court by filing Criminal Revision Application No.468 of 2004.
3. Brief facts giving rise to the present matters, are as follows:-
a) The petitioner original complainant has filed complaint bearing
R.C.C. No.130 of 2003 before the learned C.J.M. Beed against 9
accused persons, including the present respondents for having
committed the offences punishable under Sections 494 and 109 of
I.P.C. Learned C.J.M. by order dated 31.12.2003 issued process
under section 494 of I.P.C. against accused No.1 and under Section
494 r.w. 109 of I.P.C. against accused No.2 and further dismissed
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the complaint against accused Nos.3 to 9. Being aggrieved by the
same, the petitioner complainant filed Criminal Revision Petition
No.21 of 2004 before the Sessions Court Beed and the learned III
Adhoc Additional Sessions Judge, Beed, by impugned order dated
1.11.2004 partly allowed the said revision petition and set aside the
order passed by the C.J.M. to the extent of dismissal of the complaint
against the original accused Nos.3 to 5 but confirmed the rest of the
order passed by the C.J.M. The petitioner original complainant has
approached this Court by filing Criminal Application No.236 of 2005
to the extent of dismissal of complaint against the original accused
Nos.6 to 9.
4. Learned counsel for the applicant in Criminal Application
No.236 of 2005 submits that the complainant has made allegations in
the complaint ascribing the specific role to all accused in
performance of second marriage and in order to substantiate the
same, examined two witnesses, who witnessed the said second
marriage. On the basis of said evidence, learned C.J.M. had issued
process against original accused No.1 and 2 and considering the
said evidence, learned Adhoc Additional Sessions Judge, has also
issued process against original accused Nos.3 to 5. The learned
Additional Sessions Judge has however, erroneously observed that
the original accused Nos.6 to 9 have no knowledge of the fact that
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accused No.1 was performing the second marriage during the life
time of his first marriage. The Courts below ought to have issued
process against the respondents accused under sections 494 and
109 of I.P.C.
5. Learned counsel for the Applicants in Criminal Revision
Application No.468 of 2004 submits that the evidence on record
nowhere discloses as to how the petitioners original accused Nos.3
to 5 abetted accused No.1 for performing the second marriage. The
respondent original complainant is not the witness to the alleged
performance of second marriage. However, the witnesses examined
by the respondent complainant in support of the allegations made in
the complaint, have also not disclosed as to how the petitioners
original accused Nos.3 to 5 abetted the performance of the second
marriage by accused No.1. Learned counsel submits that the
learned Adhoc Additional Sessions Judge, Beed has exercised the
revisional powers without giving an opportunity of hearing to the
petitioners original accused Nos. 3 to 5 and the same amounts to
violation of principles of natural justice. Learned Sessions Judge has
not followed the provisions of Section 399 (1) and the Section 401
(2) of the Cr.P.C. The order passed by the Adhoc Additional
Sessions Judge, Beed dated 1.11.2004 to the extent of issuing
process against the petitioners original accused Nos 3 to 5 is liable to
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be quashed and set aside and the order passed by the learned Chief
Judicial Magistrate, dated 31.12.2003 below Exh.1 in R.C.C. No.130
of 2003 is required to be confirmed.
6. On careful perusal of the contents of the complaint, verification
statement of the complainant and evidence of witnesses, examined
by her in support of her allegations made in the complaint, it appears
that there is no sufficient material suggesting that the original
accused Nos.6 to 9 have knowledge of the fact that original accused
No.1 was performing second marriage during the life time of his first
marriage.
7. The provisions of Sections 399 and 401 (2) of Cr.P.C. read as
under:-
399. Sessions Judge's powers of revision :-
(1) In the case of any proceeding the record of which has been
called for by himself the Sessions Judge may exercise all or
any if the powers which may be exercised by the High Court
under sub-section (1) of Section 401.
(2) Where any proceeding by way of revision is commenced
before a Sessions Judge under sub-section (1), the provisions
of sub-sections (2), (3), (4) and (5) of section 401 shall, so far
as may be, apply to such proceeding and references in the
said sub-sections to the High Court shall be construed as
references to the Sessions Judge.
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(3) Where any application for revision is made by or on behalf of
any person before the Sessions Judge, the decision of the
Sessions Judge thereon in relation to such person shall be
final and no further proceeding by way of revision at the
instance of such person shall be entertained by the High
Court or any other Court.
401. (1) ...........................................
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has had
an opportunity of being heard either personally or by pleader
in his own defence.
(3) ........................................................
(4) ........................................................
(5). ........................................................
8. It is clear from the provisions of section 401(2) of Cr.P.C. that
the High Court cannot pass any order to the prejudice of the accused
or other persons unless that person has had an opportunity of being
heard either personally or by pleader in his own defence. In view of
the provisions of sub-section (2) of Section 399 of Cr.P.C. wherein
proceedings by way of revision is commenced before the Sessions
Judge, the provisions of sub-section (2) of Section 401 shall, so far
as may be applied to such proceedings. It is thus, incumbent upon,
the Sessions Judge to hear the applicant original accused Nos. 3 to 5
in criminal revision application 468 of 2004, if the Sessions Judge
proposes to make any order adverse to them as against the order
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passed by the learned Magistrate in their favour.
9. I am fortified by the views expressed by this Court in a case
Bomab Rustom Irani Vs. State of Maharashtra (supra) reported
in 2007 (1) Bom Cri 656. In paragraph No.9 of the said case, this
Court has made following observations :-
"9. It is clear from section 401(2) of the Code that the High
Court cannot pass any order to the prejudice of the accused or
other person in its revisional power unless that person has had
an opportunity of being heard either personally or by pleader in
his own defence. Section 399 refers to Sessions Judges
powers of revision. Sub-section (2) thereof states that where
any proceeding by way of revision is commenced before a
Sessions Judge, provisions of sub-section (2) of section 401
shall, so far as may be, apply to such proceeding and
reference to High Court in the said sub-section shall be
construed as reference to the Sessions Judge. Therefore,
even the Sessions Judge is obliged to hear the accused or
other person, if he proposes to make any order adverse to that
person while exercising his revisional powers. Such person
may be heard personally or through his lawyer."
10. In view of the above discussion, criminal application No. 236
of 2005 is liable to be dismissed. In so far as the criminal revision
application No. 468 of 2004 is concerned, the impugned order
passed by the 3rd Adhoc Additional Sessions Judge, Beed, dated
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1.11.2004 to the extent of issuing process against the petitioners
original accused Nos. 3 to 5 is liable to be quashed and set aside.
Hence, I proceed to pass the following order:-
ORDER
I. Criminal application No. 236 of 2005 filed by the original
complainant is hereby dismissed. Rule discharged.
II. Criminal revision application No. 468 of 2004 is allowed in
terms of prayer clause "B". Rule made absolute in the
above terms.
III. Criminal application No. 236 of 2005 and criminal revision
application No. 468 of 2004 are disposed of accordingly.
( V. K. JADHAV, J.)
rlj/
