Bombay High Court
Sayyed Sohel Liyakat And Anr vs Ejaj Khan Shafi Khan Pathan And Anr on 20 December, 2017
Bench: V. V. Kankanwadi
(Judgment) (1) Cri. W.P. Nos. 01440 &
01461 of 2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 01440 of 2015
District : Ahmednagar
Taskin d/o. Shaikh Ali Akbar Mogal,
Aged : 31 years,
Occupation : Nil,
R/o. C/o. Shaikh Ali Akbar Mogal,
Naikwadpura, Pune Road,
Sangamner, Dist. Ahmednagar. .. Petitioner.
versus
1. Eajaj Khan Shafi Khan Pathan,
Aged : 39 years,
Occupation : Service,
R/o. Eknath Nagar,
Nepti Road,
At & Post : Kedgaon,
Taluka & Dist. Ahmednagar.
2. The State of Maharashtra,
Through the PSO, Kedgaon P.S.,
Ahmednagar. .. Respondents.
...........
Mr. V.Y. Bhide, Advocate, for the petitioner.
Mr. Sameer Shaikh & Mr. N.B. Narwade, Advocates,
for respondent no.01.
Mr. S.P. Sonpawale, Addl. Public Prosecutor, for
respondent no.02.
...........
With
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(Judgment) (2) Cri. W.P. Nos. 01440 &
01461 of 2015
Criminal Writ Petition No. 01461 of 2015
District : Ahmednagar
1. Sayyed Sohel Liyakat,
Aged : 36 years,
Occupation : Labour.
2. Sayyed Ruksana Liyakat,
Aged : 64 years,
Occupation : Household.
Petitioners 1 & 2 R/o. -
Dargah Road,
Oppo. Kadri Masjid,
Mukund Nagar,
At Post & Dist. Ahmednagar. .. Petitioners
versus
1. Eajaj Khan Shafi Khan Pathan,
Aged : 39 years,
Occupation : Service,
R/o. Eknath Nagar,
Nepti Road,
At & Post : Kedgaon,
Taluka & Dist. Ahmednagar.
2. The State of Maharashtra,
Through the PSO, Kedgaon P.S.,
Ahmednagar. .. Respondents.
...........
Mr. Shaikh Mazhar A. Jahagirdar, Advocate, for
petitioners.
Mr. Sameer Shaikh & Mr. N.B. Narwade, Advocates,
for respondent no.01.
Mr. S.P. Sonpawale, Addl. Public Prosecutor, for
respondent no.02.
...........
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(Judgment) (3) Cri. W.P. Nos. 01440 &
01461 of 2015
CORAM : SMT. VIBHA KANKANWADI, J.
Date of reserving the
judgment : 23rd November 2017
Date of pronouncing the
judgment : 20th December 2017
JUDGMENT :
01. Rule. Rule made returnable forthwith.
Heard finally with consent of learned Counsel for
respective parties.
02. Both the petitioners by invoking writ
jurisdiction of this Court under Articles 226 and 227
of the Constitution of India as well as by invoking
powers under Section 482 of the Code of Criminal
Procedure, 1973 [For short, "Cr.P.C."], have challenged
the order passed by the Judicial Magistrate (First
Class), Court No.4, Ahmednagar, in R.T.C. No. 351 of
2011, on 16.08.2012, whereby process was issued
against petitioner no.01 in Cri. W.P. No. 1440 of
2015 (original accused no.01) for the offence
punishable under Section 494 of the Indian Penal Code
and petitioners in Cri. W.P. No.1461 of 2015
(original accused nos.06 and 07) for the offence
punishable under Section 109 read with Section 34 of
the Indian Penal Code.
03. Respondent no.01 herein is the original
complainant. The complaint is filed against the
(Judgment) (4) Cri. W.P. Nos. 01440 &
01461 of 2015
petitioner in Cri.W.P. No. 01440 of 2015, who is
original accused no.01, contending that she is the
wife of the present complainant and during the
subsistence of their marriage, she has performed
marriage with petitioner no.01 in Cri.W.P. No. 01461
of 2015. Petitioner no.02 in Cri.W.P. No. 1461 of
2015 is the mother of petitioner no.01 therein. The
complainant has alleged that the present petitioner -
original accused no.01 had eloped from her house and
joined the company of the complainant on 19th August
2003. Thereafter they got married. Consent by the
parents of the wife was not there and, therefore, the
couple could not return to their village. However,
brother of the wife gave report to Sangamner Police
Station, stating that the original complainant had
abducted the sister and ravished her. On the basis
of said report, the original complainant was
prosecuted for the offence punishable under Section
364 and 376 of the I.P.C. During the course of
investigation of the said matter, the complainant was
in custody for about 13 months. Even he was released
on bail, he was not allowed to meet his wife. It was
only assured to him that she is in safe custody of
the parents and brother and it was also stated that
she continued to be his wife. The parents and
brother of the wife assured the complainant that his
wife would return for cohabitation but asked him to
go from their house at that point of time. However,
it is stated by the complainant that after some
months, he came to know that his wife got married to
Sayyed Sohel Liyakat i.e. petitioner no.01 in
(Judgment) (5) Cri. W.P. Nos. 01440 &
01461 of 2015
Cri.W.P. 1461 of 2015 on 10th May 2007 in the hotel
owned by the parents of the wife. It has been
contended that despite knowledge that the original
accused no.01 - wife was already married to the
complainant, her marriage has been performed with
original accused no.06 and, therefore, he contended
that all the accused persons are liable to be
prosecuted for the offence punishable under Sections
494, 109 read with Section 34 of the I.P.C.
04. As some of the accused were residing beyond
the jurisdiction of the learned Magistrate, the
learned Judicial Magistrate (F.C.), Ahmednagar,
postponed the issuance of process and took up the
proceedings as contemplated under Section 202(2)
proviso of the Cr.P.C. In that process, the
complaint was sent for investigation under Section
202 of the Cr.P.C. Thereafter, the report was
received by the learned Magistrate on 09.02.2012.
The report was considered and the complainant was
further directed to lead evidence, if any. In
pursuant to the evidence and other documents on
record, the learned Judicial Magistrate (F.C.) issued
process against accused no.01 for offence under
Section 494 of the I.P.C. and against accused nos.02
to 07 for the offence punishable under Section 109
read with Section 34 of the I.P.C., by his order
dated 16.08.2012. The said order is under challenge
in these petitions.
05. It will not be out of place to mention here
(Judgment) (6) Cri. W.P. Nos. 01440 &
01461 of 2015
that original accused nos.02 to 05 had approached
this Court by filing Criminal Writ Petition No. 0167
of 2014. This Court has allowed the said writ
petition on 26th March 2015.
06. Learned Counsel appearing for the
petitioners have vehemently submitted that the order
of issuance of process passed by the learned Judicial
Magistrate (F.C.) suffers from illegality and it is
without application of mind. The learned Magistrate
had not considered that there was absolutely no
evidence before him to prove that actually marriage
was performed between original accused nos.01 and 06.
Only an invitation card was filed but that was not
sufficient. None of the persons who had attended the
ceremony was examined either by the Police when the
enquiry under Section 202 of the Cr.P.C. was
conducted or after the complainant was directed to
lead evidence.
07. Learned Counsel for the petitioners have
relied on a decision of this Court in the case of
Vaidya Kuldip Raj Kohil Vs. The State of Maharashtra & another [2002(2) Mh.L.J.
830] wherein it has been held by this Court that when
no offence was disclosed in the Police report and
even in evidence, no offence was transpired, the
Magistrate has misused the powers of the court in
issuing the process. Further, when the Magistrate
had directed an enquiry under Section 202 of the
Cr.P.C. and the report was submitted, he was not
justified in permitting the complainant to lead
(Judgment) (7) Cri. W.P. Nos. 01440 &
01461 of 2015
evidence. Reliance has been placed in this regard on
a decision of this Court in the case of Ramesh Damodar
Nagare Vs. Ashok Damodar Nagare & another [1998(1) Mh.L.J. 798] . The
order passed by the learned Magistrate is without
application of mind and in order to support the said
contention, reliance has been placed on a decision of
this Court in the case of Michael Jackson, U.S.A. Vs. Michael
Jackson Fashion (India) Ltd., Mumbai & another [2003(4) Mh.L.J. 1056] .
Further reliance has been placed on a decision of
this Court in the case of Shri Balasaheb Reghunath Katad & others
Vs. Sou. Gayabai Balasaheb Katad [2003 Cri.L.J. 2343] wherein it has
been held that averment in the complaint, that
complainant after hearing chanting of shlokas and
mantras went near assembly and inferred that her
husband was marrying another woman, cannot be the
basis for issuing process for the offence of bigamy
when there are no averments in the complaint that
customary rights and ceremonies prevalent in the
caste or tribe were performed. In the case of Vithoba
s/o. Kachruji Kathole & others Vs. Pushpa w/o. Vithoba Kathole (Deceased through
L.Rs.), [2009 ALL MR (Cri.) 2882], it has been held that when
the observations of the Magistrate, that a prima
facie case is made out was contrary to record, then
the order of issuing process is required to be set
aside. It was also pointed out that only on the
basis of hearsay evidence, the learned Magistrate
ought not to have issued process. Admittedly, the
complainant and his parents whose evidence has been
recorded by the learned Magistrate, have not
personally seen the alleged marriage between accused
no.01 and accused no.06. In order to substantiate
(Judgment) (8) Cri. W.P. Nos. 01440 &
01461 of 2015
this part of their argument, learned Counsel for
petitioners have relied on a decision of this Court
in the case of Prakash s/o. Limbaji Dhole Vs. The State of Maharashtra &
another [2013 ALL MR (Cri.) 3886].
08. Per contra, it has been argued that when it
was found that the accused persons are not residing
within the jurisdiction of the learned Magistrate,
the enquiry was ordered and the learned Magistrate
was then justified in calling upon the complainant to
lead any evidence in support. When there was prima
facie case made out, the learned Magistrate was not
required to give a detail order. Scope of the
enquiry under Section 202 of the Cr.P.C. was very
much limited. He relied on a decision of Jharkhand
High Court in the case of Frank Henary Vs. State of Jharkhand &
another [2004 Cri.L.J. 1920] and a decision of Andhra Pradesh
High Court in the case of Vidavaluru Balaramaiah & others Vs.
State of A.P. & another [2003 Cri.L.J. 3192] . Further, he submitted
that when Criminal Writ Petition No. 0167 of 2014 was
decided by this Court, a specific note has been put
that the observations made in the said writ petition
cannot be availed by the co-accused and, therefore,
the present petitioners cannot rely on the
observations made by this Court while deciding the
said writ petition.
09. It appears that the complaint has a
chequered history. However, we are required to
constrain ourselves to the allegations made in the
present complaint taking into consideration the
(Judgment) (9) Cri. W.P. Nos. 01440 &
01461 of 2015
contention that offence under Section 494, 109 read
with Section 34 of the I.P.C. is stated to have been
committed. The circumstances under which the
complainant got married to accused no.01 and whether
their marriage is still subsisting or not, is not a
relevant fact. Complainant has come with a case,
that he performed marriage with accused no.01 after
19.08.2003. He was then arrested on the complaint
lodged by the father of the original accused no.01
and he was in jail for about 13 months. According to
him, at that time, accused no.01 was residing with
accused nos.02 to 04. Even if for the sake
arguments, it is accepted that the marriage between
complainant and accused no.01 is subsisting, what is
more relevant here in this case, is whether there was
any prima facie evidence before the learned
Magistrate to come to the conclusion that accused
no.01 has performed marriage with accused no.06.
Initially, when it was found that some of the accused
were not resident of the jurisdiction of the learned
Magistrate, he had directed the enquiry under Section
202 of the Cr.P.C. After the report was submitted,
at that time also, it appears that the learned
Magistrate was not satisfied and directed the
complainant to lead further evidence.
10. If we peruse the order dated 09.07.2012
passed by the learned Magistrate, it can be said that
it is a very cryptic order which does not spell out
why he was not satisfied with the report of the
Police. It is to be noted that the said report is
(Judgment) (10) Cri. W.P. Nos. 01440 &
01461 of 2015
not against the complainant. No doubt, it was in the
discretion of the Judicial Magistrate to rely on the
said report or not, but in the order, he does not in
specific words say that he is not relying upon the
said report and discarding it. Under such
circumstance, it was necessary for the learned
Magistrate to say in clear words as to why he is
giving an opportunity to the complainant to lead
further evidence. The reasons for his
dissatisfaction on the report submitted by the Police
were utmost necessary which would show that whether
he has exercised the judicial discretion properly or
not. The learned Magistrate has not treated the
complaint as a protest petition nor a separate
protest application was filed by the complainant.
When it was in fact a report under Section 202 of the
Cr.P.C., the procedure that has been contemplated
under the decision of the Apex Court in the case of
Abhinandan Jha Vs. Dinesh Mishra [1968 Cri.L.J. 97 (SC)] is not
required to be followed because the said procedure is
specifically meant in respect of negative report
given when the investigation under Section 156(3) of
the Cr.P.C. is directed. Therefore, the ratio laid
down in the case of Ramesh Damodar Nagare (supra) is
squarely applicable here. The procedure that was
adopted by the learned Magistrate was not proper and
legal when he by merely stating, that in the peculiar
facts and circumstances of the case, is directing the
complainant to lead further evidence. Unless he has
the power and the procedure permits him, he cannot
direct the complainant to lead further evidence. The
(Judgment) (11) Cri. W.P. Nos. 01440 &
01461 of 2015
decision in the case of Vidavaluru Balaramaiah & others
(supra), relied by respondent no.01 is not helpful to
respondent no.01 because the facts are different and
that stage is already undertaken by the learned
Magistrate earlier.
11. The facts, in this case, would show that
even in the enquiry under Section 202 of the Cr.P.C.
conducted by Police and the opportunity given by the
learned Magistrate to the complainant to lead
evidence has not yielded proper evidence even to take
cognizance of the matter. Along with the Police
report, the agreement of marriage between the
complainant and accused no.01 has been fetched and
the invitation card has been collected. Merely on
the basis of the said invitation card, it cannot be
stated that the marriage was performed between
accused no.01 and accused no.06 on the given date and
at the given venue. Police had not examined any
person who attended the said marriage ceremony nor
the Kazi who performed the Nikah was examined. Same
is the case when the learned Magistrate allowed the
complainant to lead evidence. Only three persons
have been examined, the complainant himself, his
brother and mother. They were admittedly not present
when the alleged marriage took place between accused
no.01 and accused no.06. There was no hurdle for the
complainant to examine any such person who had seen
the marriage / Nikah or any person who performed a
major role at the time of Nikah. There was only
hearsay evidence before the learned Magistrate and,
(Judgment) (12) Cri. W.P. Nos. 01440 &
01461 of 2015
therefore, the observations in the case of Prakash s/o.
Limbaji Dhole (supra) would be helpful to the petitioners.
As regards the basic ingredient of the offence under
Section 494 of the I.P.C. is concerned, the
complainant was duty bound to produce evidence that
the marriage is actually performed. The evidence in
respect of that basic ingredient is absent in the
present matter.
12. As regards the impugned order of taking
cognizance is concerned, again a cryptic order is
passed by the learned Magistrate. No doubt, when
cognizance is taken, a learned Magistrate is not
required to give detailed order. However, such order
should reflect judicial mind of the concerned
Magistrate taking into consideration the facts and
the evidence that has been adduced before him or her.
In view of the observations in the case of Michael
Jackson, U.S.A. (supra), the Magistrate was obliged to
give judicial consideration before coming to the
conclusion that prima facie case has been made out to
take cognizance of the offence. In the present case,
the impugned order does not show that judicial
considerations were adhered to. No doubt, in
Criminal Writ Petition No. 0167 of 2014, this Court
had observed that the advantage of the reasons in the
said petition are not available to the present
petitioners, but independently also, if we consider
the case that has been made out in the complaint,
there was nothing before the learned Magistrate which
would prompt him to take cognizance of the offence
(Judgment) (13) Cri. W.P. Nos. 01440 &
01461 of 2015
under Section 494 of the I.P.C. against accused no.01
and under Section 109 read with Section 34 of the
I.P.C. against accused nos.06 and 07. Therefore, the
said order of taking cognizance is patently illegal.
The petitioners need not be asked to face the trial
unnecessarily and, therefore, the petitions succeed.
13. In the result, both writ petitions are
allowed.
(a) The order of issuing process against the
petitioners in both the petitions (original accused
nos.01, 06 and 07), passed in R.T.C. No. 351 of 2011,
by the Judicial Magistrate (First Class), Court No.4,
Ahmednagar, on 16.08.2012, is hereby quashed and set
aside. The complaint against the petitioners is
hereby quashed and set aside.
(b) Rule made absolute in the above terms.
( Smt. Vibha Kankanwadi )
JUDGE
...........
puranik / CRIWP1440.15etc
