Sagar S/O Sanjay Bodade vs State Of Mah. Thr. Pso Ps Hiwarkhed ...
2021 Latest Caselaw 13332 Bom

                                           1               Cr.W.P.No.507.2021-J

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                   CRIMINAL WRIT PETITION NO.507 OF 2021

  Sagar S/o. Sanjay Bodade,
  Age. 25 years, Occu. Labour,
  R/o. Indira Nagar, Hiwarkhed,
  Tq. Telhara, Dist. Akola.                           ....PETITIONER

           ---- VERSUS ----

  1.     The State of Maharashtra,
         Through Police Station Officer,
         Hiwarkhed Police Station,
         Hiwarkhed.

  2.     The Superintendent of Police,
         Police Superintendent Office,
         Akola.

  3.     The Collector, Akola,
         Tq. Telhara, Dist. Akola.

  4.     The Women and Child Welfare Office,
         Tq. Telhara, Dist. Akola.

  5.     Sanjay S/o. Gopalrao Ingle,
         Age 54 years, Occu. Labour.

  6.     Smt. Kalpna Ganesh Ingle,
         Age 40 years, Occu. Labour.

  7.     Vicky S/o. Ganesh Ingle,
         Age. 19 years, Occu. Labour.

  8.     Sagar S/o. Sadashiv Dhande,
         Age. 30 years, Occu. Labour,
         All R/o. Indira Nagar, Hiwarkhed,
         Tq. Telhara, Dist. Akola.

  9.     Devanand Bhojane,
         Age. 54 years, Occu. Labour,
         R/o. Wadi Isapur, Tq. Telhara,
         Dist. Akola.



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                                                                          2                        Cr.W.P.No.507.2021-J

  10. Vicky Morode,
      Age Major, Occu. Labour,
      R/o. Khandala,
      Tq. Telhara, Dist. Akola.                                                     .... RESPONDENTS.
  _________________________________________________________________________________________________________________________________

  Shri S. M. Awachar, Advocate for the Petitioner.
  Shri V. A. Thakare, A.P. P. for the Respondents/State.
  _________________________________________________________________________________________________________________________________



                         CORAM :                 V. M. DESHPANDE AND
                                                 AMIT B. BORKAR, JJ.

DATE : 17.09.2021.

ORAL JUDGMENT : [PER: AMIT B. BORKAR, J.]

1. Heard Shri S. M. Awachar, learned Advocate for the

Petitioner and Shri V. A. Thakare, learned Additional Public

Prosecutor for the Respondents/State.

2. Rule. Rule is made returnable forthwith.

3. By the present petition under Article 226 and 227 of

the Constitution of India, the petitioner is seeking direction against

the respondent Nos.1 and 2 to arrest respondent Nos. 5 to 10 and

the parents of respondent No.10 for the offence under the provision

of the Prohibition of Child Marriage Act, 2006 and in pursuance of

the complaints dated 24.03.2021 and 31.03.2021.

4. It is alleged in the petition that the respondent Nos. 5

to 10 have committed offence under Section 10 of the Prohibition of

Child Marriage Act, 2006 and the petitioner has therefore filed

complaint dated 24.03.2021 with Hiwarkhed Police Station and

thereafter, the petitioner has also filed complaint with the

respondent No.3 - Collector, Akola on 31.03.2021. It is stated in

paragraph No. 6 of the petition that offence bearing Crime

No. 114/2020 under Section 363 of the Indian Penal Code, Sections

376, 376(2)(i)(n) of the Indian Penal Code and under Sections 3

and 4 of the Protection of Children from Sexual Offences Act, 2012

has been registered against the petitioner. It is also stated that the

learned Sessions Judge, Akot has granted regular bail to the

petitioner on 15.07.2020. It is stated that after the petitioner was

released on bail, the victim in relation to which the offence came to

be registered against the petitioner, had married with the

respondent No.10, which is the violation of provision of the

Prohibition of Child Marriage Act, 2006.

5. During the course of hearing, the learned Advocate for

the petitioner has submitted that the trial against the petitioner in

relation to Crime No.114/2020 has already been started. The

learned Advocate for the petitioner has tendered the copy of final

report under Section 173 of the Code of Criminal Procedure for our

perusal. After going through the contents of the charge-sheet, it

appears that the trial against the petitioner under Sections 363, 376,

376(2)(i)(n) and Sections 3, 4, 5(l) and 6 of the Protection of

Children from Sexual Offences Act, 2012 has been commenced.

6. In the light of aforesaid facts, it appears that the

petitioner has filed application with the respondent Nos.1 and 2,

which are actuated by malice and it cannot be said to be a

legitimate prosecution. The jurisdiction of this Court being

extraordinary jurisdiction, the power cannot be exercised at the

instance of a person, who has initiated the proceedings with

malafide intention to harass respondent Nos. 5 to 10. Whether the

respondent Nos. 5 to 10 have committed offence under the

provision of the Prohibition of Child Marriage Act, 2006 or not, it is

for the investigating agency to decide.

7. Since the present petition is actuated by malice, we

refuse to grant relief to the petitioner, as we are satisfied that the

prosecution sought to be initiated by the petitioner is not a

legitimate prosecution.

8. There is no merit in the petition, the petition is,

therefore, dismissed.

9. Rule is discharged. Pending application(s), if any,

stand(s) disposed of.

                                JUDGE                                     JUDGE

RGurnule