Bombay High Court
Prabukant S/O Dattaram Gangulwar ... vs Sow. Trupti W/O Prabhukant ... on 28 September, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.5599.2015.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 5599 OF 2015
1. Prabukant S/o. Dattaram Gangulwar,
Age. 46 years, Occ. Education,
Unemployed, R/o. Dastgirgalli,
Kondalwadi, Tq. Biloli, Dist. Nanded.
2. Dattaram S/o. Sidram Gangulwar,
Age. 75 years, Occ. Agriculture,
R/o. Dastgirgalli, Kondalwadi,
Tq. Biloli, Dist. Nanded.
3. Gangadhar S/o. Poshetty Gangulwar,
Age. 65 years, Occ. Business,
R/o. Bodhan, Dist. Nizamabad.
(Tea stall, in front of Govt. Hospital).
4. Sow. Gangamani W/o. Gangadhar Gangulwar,
Age. 60 years, Occ. Household,
R/o. Bodhan, Dist. Nizamabad.
(Tea stall, in front of Govt. Hospital).
5. Sidram S/o. Dattram Gangulwar,
Age. 55 years, Occ. Service,
R/o. Naigaon, Dist. Nanded,
(Janta High School).
6. Sow. Parwati W/o. Sidram Gangulwar,
Age. 50 years, Occ. Household,
R/o. Naigaon, Dist. Nanded,
(Janta High School).
7. Gangadhar S/o. Dattaram Gangulwar,
Age. 52 years, Occ. Agriculture,
R/o. Arjaspur, Tq. Biloli, Dist. Nanded.
8. Sow. Rajmani W/o. Gangadhar Gangulwar,
Age. 42 years, Occ. Household,
R/o. Arjaspur, Tq. Biloli, Dist. Nanded.
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2 CRI APPLN NO.5599.2015.odt
9. Prakash S/o. Dattram Gangulwar,
Age. 47 years, Occ. Service,
R/o. Dastagir Galli, Kondalwadi,
Tq. Biloli, Dist. Nanded.
10. Sow. Sunita W/o Prakash Gangulwar,
Age. 42 years, Occ. Household,
Dastagir Galli, Kondalwadi,
Tq. Biloli, Dist. Nanded.
11. Pandurang @ Pandharinath,
Age. 40 years, Occ. Business,
R/o. Dastagir Galli, Kondalwadi,
Tq. Biloli, Dist. Nanded.
12. Sow. Anusaya W/o. Pandurang Gangulwar,
Age. 30 years, Occ. Household,
R/o. Dastagir Galli, Kondalwadi,
Tq. Biloli, Dist. Nanded.
13. Chandrashekhar S/o. Sidram Gangulwar,
Age. 32 years, Occ. Agriculture,
R/o. Naigaon, Dist. Nanded,
(Janta High School).
14. Ravindra S/o. Sidram Gangulwar,
Age. 29 years, Occ. Agriculture,
R/o. Naigaon, Dist. Nanded,
(Janta High School).
15. Parashant S/o. Sidram Gangulwar,
Age. 25 years, Occ. Agriculture,
R/o. Naigaon, Dist. Nanded,
(Janta High School).
16. Shyam S/o. Gangadhar Gangulwar,
Age. 25 years, Occ. Agriculture,
R/o. Arjapur, Tq. Biloli,
Dist. Nanded.
17. Vijay S/o. Gangadhar Gangulwar,
Age. 19 years, Occ. Agriculture,
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3 CRI APPLN NO.5599.2015.odt
R/o. Arjapur, Tq. Biloli,
Dist. Nanded. ...APPLICANTS
VERSUS
1. Sow. Trupti W/o. Prabhukant Gangulwar,
Age. 39 years, Occ. Service,
R/o. At post Swami Vivekanant Housing
Society, Gopalchiwadi, Tq. & Dist. Nanded.
2. The State of Maharashtra,
Through Police Inspector P.S.,
Biloli, Tq. Biloli, Dist. Nanded. ...RESPONDENTS
ig ...
Advocate for Applicants : Mr S.S.Bhise h/f S.B Bhapkar
APP for Respondent State : Mr. A R Kale
Advocate for Respondents : Mr H V Patil
...
CORAM : V.K. JADHAV, J.
Dated: September 28, 2016
...
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard
finally with the consent of parties.
2. Being aggrieved by the order dated 24.04.2014
passed by the Judicial Magistrate First Class, Nanded in
RCC No.570/2014 for issuance of process against the
present applicant and some other accused persons for
the offences punishable under section 494, 109 of the
Indian Penal Code and the judgment and Order passed
4 CRI APPLN NO.5599.2015.odt
by the Additional Sessions Judge-1, Nanded dated
30.6.2015 in Criminal Revision Application No.3/2015
confirming the order passed by the Magistrate, the
original accused nos. 1 and 3 to 18 have preferred this
Criminal Application.
3. Brief facts, giving rise to the present application
are as follows :-
Respondent no.1 filed a private complaint bearing
RCC No.570/2014 before the Chief Judicial Magistrate,
Nanded against the present applicant and some other
persons for having committed an offence punishable
under section 494, 109 of the Indian penal Code,
alleging therein that she is legally wedded wife of
applicant no.1 and even though said marriage is
subsisted, applicant no.1 has performed second
marriage with one Gangasagar d/o Prabhukant
Gangulwar on 10.6.2014 at village Laghul, Tq. Biloli,
Dist. Nanded. It has also alleged in the complaint that,
applicants, other accused persons were present at the
time of celebration of the marriage and they being close
relatives had knowledge of the fact that the applicant-
5 CRI APPLN NO.5599.2015.odt
accused no.1 was purporting to marry a second wife
though first marriage is subsisted. The learned Judicial
Magistrate First Class, Nanded was pleased to issue
process against all the accused persons mentioned in
the complaint for the offences punishable u/s 494, 109
of the Indian Penal Code. The learned Additional
Sessions Judge, Nanded by impugned judgment and
order dated 30.6.2015 in Criminal Revision Application
No.3/2015 also confirmed the said order. Hence, this
Criminal Application.
4. Learned counsel for the applicants submits that,
there are allegations in the complaint that the applicant
no.1 was celebrating a void marriage and at that time
the other applicants remained present during the
performance thereof. Learned counsel submits that,
mere presence at the commission of crime even with the
awareness that crime was being committed is not in
itself an intentional aid. Learned counsel submits that,
even accepting the allegations made in the complaint as
it is, no case is made out against the applicants and
therefore, order of issuance of process passed against
6 CRI APPLN NO.5599.2015.odt
the applicants for having committed an offence
punishable u/s 494, 109 of the Indian Penal Code and
confirmed by the Additional Sessions Judge in Criminal
Revision Application No.03/2015 are liable to be
quashed and set aside.
5. Learned counsel in order to substantiate his
contentions places his reliance on following judgment.
Malan w/o Rama and others Vs. State of Bombay
and another reported in AIR 1960 Bombay 393.
6. Learned counsel for respondent no.1 submits that,
it has alleged in the complaint that the persons from the
husband side were giving threats to the complainant
about performing of the second marriage of the present
applicant no.1 and, even they were searching for the
bride. All the applicants except the applicant no.19 and
20 reside jointly and they had knowledge of the fact that
the applicant no.1 was purporting to marry second time
even though first marriage is subsisted. It has alleged
in the complaint that, other applicants abetted the
commission of said crime. Learned counsel submits
that, during the course of trial, respondent-complainant
7 CRI APPLN NO.5599.2015.odt
would depose about the details of their abetment in the
alleged crime. In that way, scope of the enquiry under
Section 202 is extremely restricted and both the courts
below after finding out a prima facie case against the
applicants issued process for the offence punishable
under sections 494, 109 of the Indian Penal Code.
7. Learned counsel in order to substantiate his
contentions placed reliance on following judgment.
Mohinder Singh Vs. Gulwant Singh and others
reported in AIR 1992 Supreme Court page 1894.
8. It is true that scope of inquiry under section 202
is extremely restricted only to finding out the truth or
otherwise of the allegations made in the complaint in
order to determine whether process should be issued or
not. Learned counsel for respondent has, thus, rightly
places his reliance on a case Mohindar Singh Vs.
Gulwant Singh and ors (supra).
9. In a case Malan w/o Rama and ors Vs. State of
Bombay and another (supra) and relied upon by the
learned counsel for the applicant, in paragraph no.8 of
8 CRI APPLN NO.5599.2015.odt
the judgment, this Court has made following
observations :-
"(8) For the purpose of determining this question,
in my opinion, it is better, first of all, to
concentrate on the first three general facts found
against all the accused persons. Those general
was celebrating a void marriage and was
committing the offence of bigamy; that they
remained present at the time of the celebration of
ig that void marriage and, during the performance
thereof, they threw holy rice on the couple. There
is very good authority for the proposition 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. This
proposition is not being disputed by the learned
Government Pleader. In fact, this proposition was
laid down by this Court as early as in Empress v.
Umi, ILR 6 Bom. 126. The learned Government
Pleader, however, contended that though this is
so, there may be 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 he contended that, when
such is the case, persons holding the position of
rank and influence should be regarded as
abettors. For this purpose, the learned
Government Pleader relied upon a passage from
Messrs. Ratanlal and Dhirajlal's Law of Crimes
19th Edition, at page 230. The passage is as
follows:
9 CRI APPLN NO.5599.2015.odt
"Mere presence at the commission of a crime
cannot amount to intentional aid, unless it was
intended to have that effect. To be present and to
be aware that an offence is about to be committed
does not constitute abetment unless the person
thus present holds some position of rank or
influence such that his countenancing what takes
place may, under the circumstances. be held a
direct encouragement.........."
This passage is based upon the case in Queen-
Empress v. Lakshmi., Crim Rev. Appln. No. 51 of
ig 1886 : Rat Un Cri Cas 303. So far as this ruling is
concerned, the aforesaid remarks are obiter. In
this case, the learned Judges actually came to
the conclusion that the woman who had been
convicted of the offence of abetment did not hold
a special position and her mere knowledge of
what was done or was about to be done could
not be held to be an abetment. Therefore, the
observations which were made in this case do
not give any help in deciding the present case. In
my opinion even if one agrees with the
submission of the learned Government Pleader
that, under certain circumstance, where persons
present hold position of influence or rank their
presence should be construed as an
encouragement of the criminal act, in the present
case, it is impossible to hold that the aforesaid
accused persons held such a position vis a vis
accused No. 1 that their presence should be
taken as having encouraged the accused No. 1 in
committing the offence of bigamy. So far as some
of the accused persons are concerned, the
10 CRI APPLN NO.5599.2015.odt
learned Government Pleader had to concede that
their acts do not come within the principle which
is enunciated above. Accused No. 5 is the brother
of the bridegroom. Accused no. 6 to 8 are his
bhaubands, and accused no.13 is the brother of
the bride. It is conceded by the learned
Government Pleader that so far as these accused
persons are concerned, they cannot be said to be
occupying a position of rank or influence, and
their presence cannot be said to have encouraged
accused No. 1 in the performance of the void
ig marriage. The learned Government Pleader,
however, contended that the acts of accused Nos.
1 to 4, 9, 11 and 12 stood on a different footing.
The accused Nos. 2 and 3 are the parents of the
bridegroom, and the accused No. 4 is his uncle.
Accused No. 9 is the police patil of the village at
which the marriage was celebrated and accused
Nos. 11 and 12 are the parents of the bride. It
was contended that these persons occupied a
position of rank and influence and, therefore,
their presence must be taken to have encouraged
accused No. 1 in the performance of the void
marriage. This aspect of the case does not appear
to have been discussed before any of the lower
Courts, and none of the lower Courts have
applied its mind on this subject. The matter is
one of presumption arising from certain
relationship existing between the parties. In my
opinion the matter is one which is dependent
upon the evidence in each case. The admitted fact
is that these persons are related as aforesaid and
that they remained present at the aforesaid void
11 CRI APPLN NO.5599.2015.odt
marriage. There is nothing else on the record of
the case which would show that their presence
amounted to encouragement and that if these
persons had not remained present at the time of
the marriage, the offence of bigamy probably
would not have taken place and the accused No.
1 would have acted in a manner different from
what he did at the time of the performance of the
aforesaid marriage. Sometimes elders do remain
present even at marriages which they
disapprove. They may do so out of sentiments or
ig social considerations. Under the aforesaid
circumstances, having regard to the fact that I am
dealing with this matter in a revision application,
and the fact that this aspect of the case has not
been considered by the lower Courts. I am not
prepared to hold that the aforesaid accused
should be held to have encouraged the
performance of the void marriage simply from the
fact that they remained present at the marriage."
10. It is well settled that, an act of abetment may take
place in one of three ways i.e. 1]-Instigation, 2]-
conspiracy and 3] - Intentional aid. In the instant case,
the allegations against the applicants except applicant
no.1 are restricted to the extent that, they have attended
said marriage. This Court in the aforesaid case had an
occasion to deal with the similar issue and accordingly,
considered the well settled proposition that mere
12 CRI APPLN NO.5599.2015.odt
presence at the commission of the crime even with the
awareness that crime was being committed is not itself
an intentional aid. This Court has, however, considered
that there may be in some cases in which person may
occupy a position of influence or rank, so that their very
presence may mean encouragement to commit the
crime. In such a cases, person holding position or rank
and influence should be or can be regarded as abettors.
In the instant case, there are no allegations to that
effect that some of the applicants are such a influential
persons that their very presence at the time of
performance of the alleged second marriage facilitated
the crime. So far as applicant no.1 is concerned, there
are direct allegations against him.
11. In the light of the above discussion and
particularly, in the light of the observations made by
this Court in the case of Malan w/o Rama Vs. State of
Bombay and anr. (supra), the order of issuance of
process passed by the Magistrate and confirmed by the
Additional Sessions Judge, Nanded in Criminal Revision
Application does not sustain/stand as against the
13 CRI APPLN NO.5599.2015.odt
applicants nos. 2 to 17. Hence, I proceed to pass the
following order.
O R D E R
I. Criminal Application is hereby partly
allowed.
II. The order dated 24.4.2014 passed by the
Judicial Magistrate First Class, Nanded
in R.C.C. No.570/2014 for issuance of
ig process against the applicants no.2 to 17
herein and the said order confirmed by
the Additional Sessions Judge, Nanded,
by order dated 30.06.2015 in Criminal
Revision Application No. 03/2015 to the
extent of applicants no. 2 to 17 is hereby
quashed and set aside.
III. The Complaint bearing R.C.C.
No.570/2014 is hereby dismissed as
against applicants No. 2 to 17.
IV. Rule is made absolute in above terms.
Criminal Application accordingly
disposed off.
sd/-
( V.K. JADHAV, J. )
aaa/- ...
