1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.910 OF 2008 1 Rajendra s/o Bajirao Shelke, age: 28 years, Occ: Labour, R/o Nimbhori, Tq. Pachora, District Jalgaon. 2 Surekha d/o Dhanji Chikate, age: 18 years, Occ: Household, R/o Wakad, Tq. Kannad, District Aurangabad. 3 Bajirao s/o Vithal Shelke, age: 50 years, Occ: Agril., R/o Nimbhori, Tq. Pachora, District Jalgaon. 4 Kantabai w/o Bajirao Shelke, age: 45 years, Occ: Agril., R/o Nimbhori, Tq.Pachora, District Jalgaon. 5 Sanjay s/o Bajirao Shelke, age: 35 years, Occ: Agril., R/o Nimbhori, Tq.Pachora, District Jalgaon. 6 Rekhabai w/o Sanjay Shelke, age: 30 years, Occ: Agril., R/o Nimbhori, Tq.Pachora, District Jalgaon. 7 Jagan s/o Vithal Shelke, age: 65 years, Occ: Agril., R/o Nimbhori, Tq. Pachora, 2 District Jalgaon. 8 Bheemrao s/o Kashiba Mukh, age: 37 years, Occ: Agril., R/o Kalegaon, Tq. Sillod, District Aurangabad. 9 Prabhabai w/o Bheemrao Mukh, age: 32 years, Occ: Agril., R/o Kalegaon, Tq.Sillod, District Aurangabad. 10 Rameshwar s/o Mahadu Mukh, age: 35 years, Occ: Agril., R/o Kalegoan, Tq.Sillod, District Aurangabad. 11 Alkabai w/o Rameshwar Mukh, age: 25 years, Occ: Agril., R/o Kalegaon, Tq. Sillod, District Aurangabad. 12 Mahadu Patil Mukh, age: 80 years, Occ: Agril., R/o Kalegaon, Tq. Sillod, District Aurangabad. 13 Harnabai w/o Mahadu Mukh, age: 75 years, Occ: Agril., R/o Kalegaon, Tq. Sillod, District Aurangabad. 14 Subhadrabai w/o Kashiba Mukh, age: 80 years, Occ: Agril., R/o Kalegoan, Tq.Sillod, District Aurangabad. 15 Pandit Patil Kadam, age: 65 years, Occ: Agril., R/o Amthana, Tq.Sillod, 3 District Aurangabad. 16 Gautambai Pandit Kadam, age: 60 years, Occ: Agril., R/o Amthana, Tq. Sillod, District Aurangabad. 17 Dhanaji s/o Fakira Chikte, age: 65 years, Occ: Agril., R/o Wakad, Tq.Kannad, District Aurangabad. 18 Latabai w/o Dhanji Chikate, age: 35 years, Occ: Agril., R/o Wakad, Tq. Kannad, District Aurangabad. 19 Santosh s/o Dhanji Chikate, age: 35 years, Occ: Agril., R/o Wakad, Tq.Kannad, District Aurangabad. 20 Kantabai w/o Pandit Sakhale, age: 30 years, Occ: Agril., R/o Wakad, Tq. Kannad, District Aurangabad. 21 Sakharabai w/o Mhatarji Mokale, age: 65 years, Occ: Agril., R/o Liyakhedi, Tq. Sillod, District Aurangabad. 22 Sheshrao Vitthal Davare, age: 40 years, Occ: Agril., R/o Wakad, Tq. Kannad, District Aurangabad. 23 Vitthal Patilba Mangale, age: 55 years, Occ: Agril., R/o Sadar, Tq.Kannad, 4 District Aurangabad. Petitioners Versus 1 The State of Maharashtra 2 Arunabai w/o Rajendra Shelke, age: 23 years, Occ: Labour, At present Wadod, Tq. Kannad, District Aurangabad. Respondents Mr.B.S.Deshmukh, advocate for the petitioners. Mr.Dilip Bankar Patil, A.P.P. For Respondent No.1-State. Mr.Parag Barde, advocate for Respondent No.2. CORAM: R.M.BORDE, J. DATE : 23rd June, 2009. ORAL JUDGMENT: 1 Heard Shri B.S.Deshmukh, learned Counsel for petitioners, Shri Dilip Bankar Patil, learned Assistant Public Prosecutor for Respondent No.1- State and Shri Parag Barde, learned Counsel for Respondent No.2. Leave to add and correct description of parties. 2 Rule, made returnable forthwith and heard finally by consent of the parties. 3 Petitioners herein are raising exception to the order in respect of issuance of process dated 03.03.2008, passed by Judicial Magistrate, First Class, Kannad, in Regular Criminal Case No.289/2007, 5 summoning accused no.1 to stand trial in respect of commission of offence punishable under Section 494 of I.P.C. and other accused for offence punishable under Section 494 read with Section 109 of I.P.C. 4 There are in all 23 accused impleaded in the Complaint instituted by Respondent No.2 alleging commission of offence punishable under Section 494 read with Section 109 of I.P.C. Accused no.1 is stated to be husband of complainant, whereas accused no.2 is his second wife. Accused nos.3 and 4 are parents of accused no.1, whereas accused no.5 is brother of accused no.1 and accused no.6 is wife of his brother i.e. accused no.5. Accused nos.17 and 18 are the parents of second wife i.e. accused no.2. Other accused are distantly related and some are also natives of village Nimbhori where accused no.1 resides. 5 On perusal of the First Information Report, although some acts are attributed to each of the accused, apart from close relations of accused nos.1 and 2, the alleged acts, in themselves, do not constitute an offence within the purview of provisions of Section 494 of I.P.C. The allegations raised against the accused, except accused nos.1 to 6 and 17 & 18, fall short of attributing criminal liability against them. Considering totality of the circumstances, learned Magistrate ought to have restricted the order in respect of issuance of process against accused nos.1 to 6 and 17 & 18 only. The Revisional Court has also cursorily dealt with the matter and has not considered the role attributed to each of the accused who are impleaded in the crime. In this view of the matter, Petition by original accused nos.7 to 16 and 19 to 23 deserves to be allowed. 6 6 In the result, Writ Petition is partly allowed. The order in respect of issuance of process passed by Judicial Magistrate, First Class, Kannad, dated 03.03.2008 in Regular Criminal Case No.289/2007, as against original accused nos.7 to 16 & 19 to 23, stands quashed and set aside. Trial to proceed against original accused nos.1 to 6 and 17 & 18. 7 Rule is accordingly made absolute to the above extent. (R.M.BORDE) JUDGE ******* adb/criwp91008