Writ Petition No. 1113 of 2024 · Bombaybench High Court · 2025
Case Details
( 1 ) 47-WP-1113-2024IN THE HIGH Court OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD47 CRIMINAL WRIT PETITION NO. 1113 OF 2024Meenal W/o Parshuram Wagh And AnotherVERSUSThe State Of Maharashtra And Another...Mr. Ravindra M. Deshmukh, Advocate for the Petitioners.Smt. Chaitali Chaudhari-Kutti, APP for Respondent-State. Mr. S. I. Shaikh, Advocate for Respondent No.2. CORAM:KISHORE C. SANT, J.DATE:4th AUGUST 2025.PC :-1.Heard Mr. Deshmukh, the learned Advocate for the petitioners,Smt. Chaudhari-Kutti, the learned APP for Respondent-State, and Mr.Shaikh, the learned Advocate for the Respondent No.2. The petitioner istaken up for final disposal at the stage of admission, with the consent ofthe parties. 2.The petitioners are the original accused Nos. 5 and 6 in complaintfiled by Respondent No.2, have approached this Court challenging theEthape
Legal Reasoning
( 2 ) 47-WP-1113-2024judgment and order dated 4th April 2024, passed by the learnedAdditional Sessions Judge, Aurangabad, in Criminal Revision ApplicationNo. 301 of 2023. The revision came to be dismissed by the impugnedorder. The revision was filed challenging the order dated 21st September2023, passed by the learned JMFC, Court No.10, Aurangabad, issuingprocess against the present petitioners and six other accused persons forthe offences punishable under Sections 494 read with 34 of the IndianPenal Code, 1860. 3.Respondent No.2 filed a complaint in the Court of learned JMFC,Aurangabad, stating that she is married to accused No.1, who happensto be a brother of accused No.5, and brother-in-law of accused No.6.There is also one son born out of the marriage. The marriage wasperformed on 25th December 2011. It is alleged that the accused No.1was having an affair prior to marriage with one lady. However, nomarriage could be performed with her as she happens to be a personfrom different community.Ethape ( 3 ) 47-WP-1113-20244.On 31st December 2022, she received information that the accusedNo.1 i.e. Manoj is marrying with accused No.2. She, therefore, went toone Bungalow namely, Sonai Bungalow in New Shreya Nagar,Aurangabad. She went to the said bungalow alongwith her father,brother and one more at around 12:30. They saw a crowd near thebungalow. In the bungalow, they found that accused Nos.1 and 2 werewearing new clothes and were about to get married. The other accusedpersons were well-coming the guests and distributing the akshada (holyrise). The accused No.8 is alleged to have chanted Managalashataka.The informant tried to tell the people gathered there that she is the wifeof accused No.1. There is one child born out of the marriage and themarriage is still in existence. The other accused persons threatened herand told her to go out. Inspite of her resistance, marriage wasperformed. Poojan of homa (holy fire) was done. They also took roundsaround homa. (holly fire). On that, she filed a complaint on 8th February2023.Ethape ( 4 ) 47-WP-1113-20245.The learned trial Judge by an order dated 2nd May 2020, directedthe police to carry out investigation. The investigation was carried.Statement of persons came to be recorded, including of the complaint,her brother and her father. The police, on inquiry, recorded that nooffence is made out and submitted a report to the Court. The learnedJudge, however, issued process against the accused persons. Thesepetitioners challenged order of issuance of process by filing a revision. 6.The learned Advocate Mr. Deshmukh vehemently argued that noingredients are made out of the offence looking to the report submittedby the police. He submits that when the police has submitted a reportspecifically stating that no offence is committed, still the Magistrateissued a process without recording any justification for taking differentview from the police report. He further submits that looking to thestatements recorded of the witnesses shows that there is no specificstatement made as to how the marriage was performed. It is vaguelystated that the accused No.1 and 2 performed the marriage. For anEthape
Legal Reasoning
( 5 ) 47-WP-1113-2024offence under Section 494, there has to be a specific allegation. It is only,thereafter, the Court could have issued a notice. He submits that eventhe learned Sessions Judge has not discussed as to on what basis theCourt has come to the conclusion. He thus prays for allowing the writpetition. 7.In support of his submission, the learned Advocate for thepetitioner relied upon the judgment in the case of Abhijit Pawar V.Hemant Madhukar Nimbalkar and Anr.18.The learned Advocate Mr. Shaikh vehemently opposed thepetitioner. He submits that looking to the complaint itself it is seen thatall the particulars of performance of the marriage are given in thecomplaint. There is clear averment about the chanting of Mangalashtakaand taking rounds around the holy fire. The role of each of the accusedis specifically shown. It is specifically alleged that the present petitionerswere distributing the Akshada to the guests. The present petitioner No.1happens to be the real sister of the accused No.1 and therefore, had1AIR 2017 SC 299Ethape ( 6 ) 47-WP-1113-2024complete knowledge that the marriage being performed was the secondmarriage of the accused No.1 while his first marriage was still inexistence. He thus prays for rejection of the writ petition. 9.In support of his submission, the learned Advocate for Respondentrelied upon the judgment in the case of Kunwarjee Jivraj Lodhaya Vs.Bhagchand Motilal Raka210.This Court has heard the parties. So far as the complaint isconcerned, it is seen that the details and the particulars of the marriageceremony are given. The learned Court, therefore, issued a direction tothe police to submit a report. The police, after recording statement,submitted its report. It is specifically recorded that no details could begathered showing that accused No.1 and 2 were married. It is furtherrecorded that the complainant could not give any details during inquiryto prove the marriage between accused Nos. 1 and 2. The learned Judgewhile passing the order of issuance of process, has only stated that theCourt had gone through the material and it prima facie appears that the2LAWS(Bom)1991-11-3Ethape ( 7 ) 47-WP-1113-2024marriage has taken place. It is observed that the accused No.1 and 2 areresiding in shared household. The accused No. 3 to 7 were present at thetime of alleged marriage. 11.From the order, however, it is not clear as to on what basis learnedMagistrate recorded the conclusion that the accused No.1 and 2 areresiding in shared household. Assuming that they stayed in a sharedhousehold, it would not lead to any conclusion that they are residingtogether only after the marriage. It is also not clear as to on what basisthe Court concluded that the accused No.3 to 7 were present. Whenthere was specific report of the police recording a conclusion that thereis no material to prove the offence, it was necessary for the trial Court todiscuss as to what lead the Court to conclude or satisfy itself. No suchsatisfaction is found. 12.Looking to the order passed by the learned Sessions Judge, nodiscussion as to what lead the Court to come to the conclusion that theorder passed by the learned Magistrate is legal and proper. It is onlyEthape ( 8 ) 47-WP-1113-2024stated that the order passed by the learned Magistrate is legal, properand correct and no interference is called for. Prior to that, the Court hasonly considered as to what is observed by the trial Court in the order. 13.In the case of Abhijit Pawar (supra) the Hon'ble Apex Court hadobserved that the Court must record its satisfaction about the primafacie case. It was a case under Section 7 of the Press Act. However, whatis material is the observation that the Court has to show its satisfactionin the order.14.So far as judgment in the case of Kunwarjee Lodhaya (supra) isconcerned, there is no question about its proposition. However, in thesaid judgment it is observed that the learned Magistrate has to satisfyhimself upon the facts discovered or unearthed by the police, there issufficient material for him to take cognizance of the offence and issueprocess, the Magistrate may do so without reference to the conclusiondrawn by the investigating officer. It is further stated that the Magistrateis not bound by the opinion of the police officer about the offence hasEthape
Decision
( 9 ) 47-WP-1113-2024been made out or not. There is no opinion about this.15.In the present case, as this Court as already observed, order of theMagistrate does not show an application of mind. The learned SessionsJudge has also not discussed the case in sufficient details. As alreadyobserved, though in the complaint, there are averments about thesecond marriage. However, while recording the statements before thepolice and the Court, there are no particulars of second marriage given.For all these reasons, this Court is satisfied that a case is made out toallow the writ petition by setting aside the impugned order passed bythe learned Sessions Judge. The writ petition, therefore, stands allowedin terms of prayer clause (C) to the extent of present accused persons. [KISHORE C. SANT, J.]Ethape