1 Criminal Appl.No.2108 of 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2108 OF 2010 1. Sharad Sakhahari Hivale, Age-46 years, Occu-Service, 2. Laxmi Sharad Hivale @ Laxmi @ Pinti Vitthal Solase, Age-27 years, occu-Household, 3.Sakhahari Keru Hivale, Age-65 years, Occu-Business, 4. Saraswati @ Vithabai Sakhahari Hivale, Age-60 years, Occu-Household, 5. Lalita Sakhahari Hivale, Age-25 years, Occu-Household, 6. Shaila Dadasaheb Tupsaudar, Age-32 years, Occu-Household, 7. Aarti Ganpat Pawar, Age-24 years, Occu-Household, 8. Ujwala Sakhahari Hivale, Age-22 years, Occu-Household, 9. Nirmala Sakhahari Hivale, Age-20 years, Occu-Household, 10. Deepak Sakhahari Hivale, Age-26 years, Occu-Business, 11. Manoj Sakhahari Hivale, Age-21 years, Occu-Private Service, 2 Criminal Appl.No.2108 of 2010 12. Tushar Sakhahari Hivale, Age-19 years, Occu-Service, Petitioner Nos.1 to 12 R/o.Yeola, Tq.Yeola, Dist. Nashik, 13. Vitthal Bhaga Solase, Age-58 years, Occu-Business, 14. Ushabai Vitthal Solase, Age-55 years, Occu-Household, 15. Deepak Vitthal Solase, Age-25 years, Occu-Business, 16. Bhagwan Vitthal Solase, Age-32 years, Occu-Business Applicant Nos.13 to 16 R/o. Near S.T.Stand, Ganesh Nagar, Lasalgaon, Dist. Nashik APPLICANTS VERSUS 1. Sau.Ambika Sharad Hivale, Age-29 years, Occu-Household, Through General Power of Attorney, Dagadu Ramchandra Pawar, R/o.352, Sadar Bazar, Bhingar Camp, Bhingar, Tq. & Dist. Ahmednagar. 2. The State of Maharashtra RESPONDENTS Mr.R.N.Dhorde h/f. Mr.V.R.Dhorde, learned counsel for the applicants. Mr.S.G.Nandedkar, learned A.P.P. for respondent State. Mr.S.V.Munde, learned counsel for respondent no.1. (CORAM : A.V.POTDAR, J.) DATE : 26/09/2011 3 Criminal Appl.No.2108 of 2010 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. By the present application u/s. 482 of the Cr.P.C., the applicants who were arrayed as an accused no.1 to 12 and 15 to 18 in the complaint lodged before the learned J.M.F.C. Ahmednagar, are before this Court to quash and set aside the proceeding against these applicants, for which process was issued by the learned J.M.F.C. Ahmednagar. 3. I have heard learned counsel for the applicants, learned counsel for original complainant and learned A.P.P. for State. 4. During the course of submissions across the bar, my attention is drawn towards the judgment of acquittal passed by the learned J.M.F.C. Yeola in RCC No.89/1999. In the said complaint, accused no.1 to 11 were tried for an offence punisahble u/s. 498-A, 323, 504, 506, 494 r/w. 34 of the IPC. Perusal of the judgment shows that after the evidence was led, point was framed for consideration that, “whether it is proved by the prosecution that accused no.1 Sharad has a wife Ambika living, having been validly married and he performed second marriage with one Laxmi @ Pinty again during the lifetime of Ambika.” This Ambika is complainant in private complaint RTC No. 18/2000 and Laxmi is arrayed as an accused no.2 in the said private 4 Criminal Appl.No.2108 of 2010 complaint. For the reasons recorded in para no.12 of the judgment in RTC No.89/1999, learned J.M.F.C. Yeola, vide his judgment dated 20/06/2006 has concluded that considering the evidence led before the Court, second marriage between Sharad and Laxmi is not proved. Further my attention is drawn towards the text in para no.2 of the private complaint no.18/2000 wherein it is alleged by the respondent no.1 herein, that she learnt about the second marriage of applicant no.1 and 2 on 02/05/1999, for which other applicants were also arrayed u/s. 109 of the IPC. My attention is also drawn towards the verification recorded by the Lower Court before issuance of process. Process was issued on 27/11/2000 against the applicants no.1 and 2 for the offence punishable u/s. 494 of the IPC and remaining applicants for an offence punishable u/s. 494 r/w. 109 of the IPC. 5. My attention is drawn towards towards section 300(1) in Chapter XXIV of the Cr.P.C., which reads as : A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof. Learned counsel for the applicant would urge that as these 5 Criminal Appl.No.2108 of 2010 applicants were once tried and acquitted by the competent Court of Law for the offence punishable u/s. 494 r/w. 34 of the IPC with other offences, then for the same offencce, they can not be prosecuted as provided u/s. 300(1) of the Cr.P.C. 6. While opposing these submissions, learned counsel appearing for the original complainant would urge that the complaint lodged u/s. 494 of the IPC is not to be investigated by the police and if it is investigated by the police, and even then tried by the competent court of Law, the judgment rendered in that case will not come under the ambit of section 300(1) of the Cr.P.C. 7. Perusal of the record shows that the applicants no.1 and 2 were tried and acquitted for the offence punishable u/s. 494 r/w.34 of the IPC by the competent Court of Law. Perusal of the judgment in RTC No.89/1999 passed by the J.M.F.C. Yeola vide his judgment and order dated 20/06/2008 discloses that this is not the prosecution based on the police report, only for the offence punishable u/s. 494 r/w. 34 or r/w. 109 of the IPC, but the prosecution was for the offence punishable u/s. 494 r/w. 34 of the IPC r/w. some other offences under the IPC. Criminal Court is competent Court to try the offences arising out of the matrimonial dispute. In such circumstances, it can not be said that part of the accusation is based on the police report, hence the Magistrate is not competent to try the other offences. The fact remains that the 6 Criminal Appl.No.2108 of 2010 accusation against the applicants was based on the police report not only for the offence punishable u/s. 494 r/w. 34 of the IPC, but with some other matrimonial offences, which were tried and decided by the competent Court of Law. Considering this aspect, respondent no. 1/original complainant now can not urge that the acquittal recorded by the learned J.M.F.C. Yeola was beyond his jurisdiction. Admittedly, there is nothing on record that primary objection was raised by the complainant before the learned J.M.F.C. Yeola about his jurisdiction to try and entertain the offence punishable u/s. 494 r/w. 34 of the IPC alongwith other offences. Respondent no.1, the complainant, has also participated in the trial and not questioned the legality and correctness of the judgment. 8. Considering this aspect, the private complaint RTC No.18/2000 lodged by the first respondent/complainant before the learned J.M.F.C. Ahmednagar for the offence punishable u/s. 494, 109 r/w. 34 of the IPC is barred by the provisions u/s. 300(1) of the Cr.P.C. In the result, application succeeds. Process issued against these applicants vide order dated 21/07/2000 is required to be quashed and set aside. Accordingly, process issued against these respondents is called back. Rule thus made absolute as indicated above. (A.V.POTDAR, J.) khs/SEPT.2011/cri.appl.2108-10