Bombay High Court
Gokul Vithoba Dange vs Dipali Gokul Dange And Another on 15 February, 2022
Bench: Avinash G. Gharote
35apl1294.21.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 1294/2021
Gokul Vithoba Dange..Versus...Dipali Gokul Dange and anr
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --- -
Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----- ------------ -
Mr. V.R.Deshpande, Advocate for the applicant .
Mr. H.S.Chawan, Advocate for Respondent No.1
Mr. I. Damle, APP for respondent No. 2/State
CORAM : AVINASH G. GHAROTE, J.
DATE : 15/02/2022
1] Heard Mr. Deshpande, learned counsel for the
applicant, Mr. Chawan, learned counsel for Respondent No.1
and Mr. Damle, learned APP for State.
2] The application seeks to challenge the order
dated 14.6.2018 passed by the learned JMFC Court No. 4
Washim, whereby process has been issued against the
accused Nos. 1 to 7 for the offence punishable under Section
494 r/w Section 34 of the IPC, on the ground that the
applicant has performed the second marriage with the
Respondent No.1.
3] Mr. Deshpande, learned counsel for the applicant
submits that under Section 202 of the IPC, an obligation is
cast upon the learned Magistrate before issuance of process
35apl1294.21.odt
to make an enquiry into the case himself or direct an
investigation to be made by Police Officer or by such other
person as he thinks fit for the purpose of deciding whether or
not there is sufficient ground for proceeding, in case the
accused is residing at a place beyond the area in which he
exercises his jurisdiction.
4] In the instant case the complaint has been filed
at Washim and the accused No.1 resides at Navi Mumbai and
it is therefore his submission that the issuance of the process
ought to have been postponed and an investigation ought to
have been directed by the Police into the matter. He further
contends that even if the learned Magistrate felt it
appropriate to enquire it himself, he ought to have expressed
his prima facie satisfaction regarding the existence of the
offence under Section 494 of the IPC. Relying upon Bhaurao
Shankar Lokhande vrs. State, AIR 1965 SC 1564 (paras 6
and 7), he contends that for the purpose of Section 494 of the
IPC, what is necessary is the performance of the essential
ceremonies for the valid marriage between the parties, unless
it is pleaded that the custom provides otherwise. These
essential ceremonies are (a) invocation before the sacred fire
and (b) saptapadi. Further reliance is placed upon Santi Deb
Berma vrs. Kanchan Prava Devi, 1991 Supp (2) SCC 616
(paras 7 and 8) which reiterates the requirement of a valid
marriage. Further relying upon Balasaheb Raghunath Katad
35apl1294.21.odt
vrs. Gayabai Balasaheb Katad and ors, 2003 ALL MR (Cri)
849 (paras 5 to 7), it is contended that a Magistrate while
issuing process was obliged to keep in mind the essentials for
a valid marriage or in case there was a custom pleaded
indicating otherwise, necessary averments regarding the
custom and its rites, absence of which would not sustain the
issuance of process. Kerabai Ramrao Nakhate vrs. Ramrao
Laxman Nakhate, 2013 ALL MR (Cri.) 3515 has been relied
upon to contend that the complaint must be specific in regard
to the allegations and the customary rites and ceremonies
required to infer the commission of offence under Section
494 of the IPC. Sunil Todi and others vrs. State of Gujarat
and another, 2021 SCC Online SC 1174 (para 39 to 44), is
relied upon to contend that the scope of enquiry under
Section 202 of Cr.P.C, would necessarily mandate for a
Magistrate to postpone issuance of the process where the
accused is residing at a place beyond the area in which the
Magistrate exercises the jurisdiction and the expression
"shall" necessarily mandates that enquiry or investigation, as
the case may be, is mandatory before summons are issued
and the Magistrate is duty bound to apply his mind to the
allegations in the complaint together with the statements
which are recorded in the enquiry while determining whether
there are sufficient grounds for proceeding. He therefore
submits that considering the statement of Damu Rayaji
Gawai, the same would indicate that he does not speak about
35apl1294.21.odt
the performance of the essential ceremonies required for a
valid marriage, as indicated by the Hon'ble Apex Court, nor is
there a pleading in the complaint regarding any custom
prevalent in the community to which the applicant belongs or
any other mode in which a legal and valid marriage is to be
performed, in view of which it is contended that the order of
issuance of process is vitiated in law. To substantiate this
contention, he submits that the accused No. 3 was the father
of the accused no.1/applicant, accused no. 4 - the mother and
accused Nos. 5 to 7 are merely claimed to be present at the
incident and even considering the language of Section 494 of
the IPC, no process could have been issued against them at all
for the reason that Section 494 of the IPC is addressed to
either of the spouse performing a second marriage and makes
such performance an offence. It does not according to him
take into its compass anyone else, much less the parents of
the either spouse or for that matter persons present at such
an incident and the issuance of the process by the Magistrate
even to the persons who are claimed to be merely present at
the incident, namely accused Nos. 3 to 7 would again
indicate non application of mind and absence of any enquiry
by the learned Magistrate himself. He further contends that
enquiry by the Magistrate as contemplated by Section 202 of
Cr.P.C is not a mere formality, but has to indicate the
applicability of mind to the factual position as emanating
from the complaint, the verification statement, documents
35apl1294.21.odt
placed on record and the statement of any other person
which may have been recorded viz-a-viz the requirement of
the provision of law, under which the offence is alleged to
have been committed. It is therefore, contended that the
impugned order cannot be sustained.
5] Mr. Chawan, learned counsel for Respondent
No.1 places heavy reliance upon the statement of Damu
Rayaji Gawai to contend that he was the person who was
present at the spot and had witnessed the second marriage
being performed and therefore his testimony was enough to
have pointed out a prima facie case for the purpose of
issuance of process by the learned Magistrate. Reliance is
placed upon Birla Corporation Ltd Vrs. Adventz Investments
and Holdings Ltd., (2019) 16 SCC 610 (para 59), to contend
that the Magistrate who is conducting an investigation under
Section 202 of Cr.P.C. has full power in collecting the
evidence and examining the matter and once the Magistrate
has exercised his discretion, it is not for the Sessions Court or
High Court to substitute its own discretion for that of the
Magistrate to examine the case on merits and the Magistrate
may not embark upon a detailed enquiry or discussion of the
merits/demerits of the case, but the Magistrate is required to
consider whether a prima facie case has been made out or
not and apply the mind to the materials before satisfying
himself that there are sufficient grounds to be proceeded
35apl1294.21.odt
against the accused. It is therefore contended that
considering the material on record, the Magistrate being
satisfied of existence of the material on record has rightly
issued the process.
6] Mr. Damle, learned APP supports the arguments
advanced by the learned counsel for Respondent No.1.
7] A perusal of Section 494 of the IPC, which
relates to the offence of bigamy i.e. of the spouse during the
life time of the husband or wife marrying again, would
indicate that the offence is committed by the spouse who
performs such marriage and not by any other person and
definitely not by any person who may have remained present
during the performance of such marriage, considering which
prima facie the issuance of process by the learned Magistrate
against the accused Nos. 2 to 7 was clearly against the
provisions of law. However, since they are not before me, I
refrain from taking this any further. This is only to indicate
that the order of issuance of process by the learned
Magistrate did not indicate an application of mind to the
requirement of the provision of Section 494 of the IPC for
had it been so, surely the Magistrate would not have issued
any process to the accused Nos. 2 to 7. That apart, the
impugned order indicates that the alleged second marriage
was performed on 18.4.2018, which in fact is not the date
35apl1294.21.odt
even mentioned in the complaint, which is mentioned as
29.1.2018. One can always give a benefit of doubt in respect
of incorrect mentioning of date, however, what is further
material to note is that verification statement of Damu Rayaji
Gawai merely states that there was an exchange of garlands
between applicant/accused no.1 and the accused no. 2, both
of whom profess to belong to the Hindu religion. Considering
what has been held by the Hon'ble Apex Court in Bhaurao
Shankar Lokhande and Santi Deb Berma (supra), the
essential requirements of a legal and valid Hindu marriage or
for that matter even for the subsequent marriage so as to
attract the provisions of Section 494 of the IPC would be the
performance of the essential ceremonies namely the
invocation before the sacred fire and the saptapadi, both of
which are absent in the statement of Damu Rayaji Gawai,
who is claimed to be present on the spot at the time of the
alleged marriage. What is stated by him is merely that there
was exchange of garlands in the temple, considering which
the learned Magistrate ought to have made an enquiry, as to
whether there was a custom pleaded in the complaint that in
the community to which the complainant and accused No.1
belong, the marriage was performed by an exchange of
garlands alone. However, as rightly pointed out by the
learned counsel for the applicant, the complaint does not
bear any such averment, neither does the verification
statement of the complainant or for that matter Damu Rayaji
35apl1294.21.odt
Gawai contains any such averments, which in my considered
opinion indicates that there was no proper enquiry as
contemplated by Section 202 of Cr.P.C whatsoever by the
learned Magistrate as to even a prima facie indicate
satisfaction of the requirement of section 494 of the IPC as
held by the Hon'ble Apex Court in Sunil Todi (supra). Birla
Corporation Ltd (supra) relied by learned counsel for
Respondent No.1 has been considered by the Hon'ble Apex
Court in Sunil Todi (supra).
8] Considering the above position, I do not feel that
the impugned order satisfies the requirement of law,
regarding a prima facie satisfaction as contemplated by
Section 202 of Cr.P.C. in respect of enquiry even by the
learned Magistrate as appears to be the case in the present
matter. Though this Court normally ought not to exercise its
discretionary power, however, the fact of the present case
demand so. The judgment of the learned Sessions Court does
not delve into the above aspect altogether.
9] The impugned order passed by the learned
Magistrate as well as the judgment of the learned Sessions
Court cannot be sustained. The same are therefore quashed
and set aside and the matter is remanded back to the learned
Magistrate to conduct a fresh enquiry as contemplated by
Section 202 of Cr.P.C either by himself or through Police
35apl1294.21.odt
Officer and then after applying his mind to decide upon the
question of issuance of process.
10] It is made clear that the learned Magistrate may
not be influenced by the observations in the above order and
shall decide the existence or non-existence of the prima facie
case by applying his mind appropriately.
JUDGE
Rvjalit
Digitally sign byRAJESH
VASANTRAO JALIT
Location:
Signing Date:16.02.2022 10:58
