Bombay High Court
Ramesh Shankar Mahajan & Ors vs Mrs Mirabai Ramesh Mahajan on 2 September, 2016
Bench: V.K. Jadhav
Cri.Appln.2010/2005
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2010 OF 2005
1. Ramesh s/o Shankar Mahajan,
Age 45 years, Occu. Labour,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
2. Vimal w/o Ramesh Mahajan,
Age 31 years, Occu. Labour,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
(The name of Respondent No.2 is actually Vimal, however,
summons are served to her in the complaint in the name
Pramila and she is described as Pramila in the complaint.
She is filing this petition in her actual name Vimal)
3. Shankar s/o Shivram Mahajan,
Age 61 years, Occu. Pensioner,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
4. Ganesh s/o Shankar Mahajan,
Age 33 years, Occu. Labour
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
5. Gitabai w/o Bapu Mahajan,
Age 56 years, Occu. Household
R/o Waghod, Taluka Raver,
District Jalgaon
6. Murlidhar s/o Bapu Mahajan,
Age 34 years, Occu. Labour
R/o Waghod, Taluka Raver,
District Jalgaon
7. Jagganath s/o Namdeo Patil,
Age 56 years, Occu. Labour
R/o Waghod, Taluka Raver,
District Jalgaon
8. Sharjabai w/o Jagannath Patil,
Age 51 years, Occu. Household
R/o Waghod, Taluka Raver,
District Jalgaon
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Cri.Appln.2010/2005
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9. Raghunath s/o Rambahu Mahajan,
Age 51 years, Occu. Agri.,
R/o Waghod, Taluka Raver,
District Jalgaon
10. Chudaman s/o Baburao Patil,
Age 49 years, Occu. Agri.,
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
11. Padmabai w/o Chudaman Patil,
Age 30 years, Occu. Household
R/o Alamganj, Ganpati naka,
Burhanpur, Taluka, District
Burhanpur, Madhya Pradesh
12. Digambar @ Digaram Bhataji
(Joshi), Age 61 years, Occu.Nil
R/o Waghod, Taluka Raver,
District Jalgaon ..Petitioners
Versus
. The State of Maharashtra through
its Investigation Officer ..Respondent
Mr D.M. Mane, Advocate h/f Mr Milind Patil, Advocate for petitioners
Mr P.G. Borade, A.P.P. for respondent
CORAM : V.K. JADHAV, J.
DATE : 2nd September 2016
ORAL JUDGMENT
Leave to correct the prayer clause.
2. Being aggrieved by the order dated 5 th July 2005 passed below
Exh.48 in R.C.C. No.69/2004 by Judicial Magistrate, First Class, Raver,
the original accused have approached this Court by filing the present
criminal application.
3. Brief facts, giving rise to the present application are as follows:
4. Deceased wife of petitioner No.1 had filed complaint before the
Magistrate against the petitioners for having committed offence under
Cri.Appln.2010/2005
Sections 494, 109 read with Sec.34 of Indian Penal Code and
accordingly, the case is registered as R.C.C. No.69/2004. The learned
Magistrate by order dated 15 th July 2004, issued process against all
the accused for the offence punishable under Section 494 of Indian
Penal Code. The applicants-accused, on their appearance before the
Magistrate, filed an application Exh.48 for recalling the order of
issuance of process on the ground that the petitioner No.1 - husband
had filed Hindu Marriage Petition bearing Petition No.34-A/2003
against his wife before Additional District Judge, Burhanpur, District
Khandwa and the learned Additional District Judge, Burhanpur, by
judgment and order dated 8th May 2003 dissolved the marriage by
decree of divorce and by suppressing the said fact, the complainant -
Mirabai has lodged the complaint before the Court for the offence
punishable under Section 494 of Indian Penal Code. The learned
Magistrate, however, by order dated 5th July 2005 passed below
Exh.48 in the said case refused to recall the order of issuance of
process only on the ground that he cannot review his own order of
issuance of process. Hence the present application.
5. Learned Counsel for the petitioners-original accused submits
that the petitioner No.1-husband obtained a decree of divorce by
presenting Hindu Marriage Petition before the competent Court and
accordingly, the relation as husband and wife between petitioner No.1
and Mirabai was not subsisting on the alleged date of having
committed offence punishable under Section 494 of Indian Penal
Code. Learned Counsel submits that the order passed by the learned
Magistrate for issuance of process for the offence punishable under
Cri.Appln.2010/2005
Section 494 of Indian Penal Code is liable to be quashed and set aside
and the complaint filed by Mirabai bearing R.C.C. No.69/2004 is liable
to be dismissed.
6. Leaned Counsel for the petitioners, in order to substantiate his
submissions, placed reliance on the following two judgments of Apex
Court :
(I) Krishna Gopal Divedi Vs. Prabha Divedi, reported in
(2002) 10 SCC 216;
(II)
Pashaura Singh Vs. State of Punjab & Anr., in
Criminal Appeal No.2122 of 2009 (arising out of
SLP (Cri.) No.5910/2006)
7. I have also heard the learned A.P.P. for the State.
8. So far as the penal provisions of Section 494 of Indian Penal
Code are concerned, it requires the ingredients namely (a) the
accused must have contracted first marriage; (b) he must have
married again; (iii) first marriage must be subsisting and spouse must
be living. Since the petitioner No.1 had obtained the decree of
divorce on 8th May 2003, the relation of petitioner No.1 with
complainant - Mirabai as husband and wife was not subsisting on the
date of offence i.e. 5th July 2004.
9. In view of the above discussion and in view of the ratio laid
down by the Apex Court in the cases cited above relied upon by the
learned Counsel for the petitioners, Criminal Application is allowed in
terms of prayer clause (A).
Cri.Appln.2010/2005
10. Criminal Application is accordingly disposed of. Rule made
absolute in above terms.
( V.K. JADHAV, J.)
vvr
