1 Criminal Application No.3658/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3658 OF 2009 1. Mahesh s/o Laxman Sonnar, Age 26 years, Occ. Agri., R/o Wanisangam, Tq. Sonpeth, District Parbhani. 2. Laxman s/o Harishchandra Sonnar, Age 55 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 3. Mangalbai w/o Laxman Sonnar, Age 50 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 4. Meera w/o Mahesh Sonnar, Age 25 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 5. Annoba s/o Manikrao Kale, Age 50 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 6. Rajubai Aneba Kale, Age 40 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 7. Biruba Aneba Kale, Age 30 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 8. Housabai w/o Biruba Kale, Age 26 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 2 Criminal Application No.3658/2009 9. Chaturabai w/o Bansi Kokare, Age 65 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 10. Vinod s/o Arvind Waghmode, Age 30 years, Occ. Service as Police Constable, Attached to the Police Station, Buldhana, R/o Buldhana, Taluka and District Buldhana. 11. Kusum w/o Arvind Waghmode, Age 45 years, Occ. Household, R/o C/o Vinod s/o Arvind Waghmode, Age 30 years, Occ. Service as Police Constable, Attached to the Police Station, Buldhana, R/o Buldhana, Taluka and District Buldhana. 12. Rekha w/o Sopanrao Deshmukh, Age 40 years, Occ. Household, R/o Tembhurni, Tq. Jafrabad, District Jalna. 13. Narayan s/o Manik Kale, Age 42 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 14. Anupama w/o Narayan Kale, Age 35 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 15. Dnyanoba s/o Manik Kale, Age 35 years, Occ. Agri. R/o Wanisangam, Tq. Sonpeth, District Parbhani. 16. Vimal w/o Dnyanoba Kale, Age 31 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 3 Criminal Application No.3658/2009 17. Manjulabai w/o Manikrao Kale, Age 75 years, Occ. Household, R/o Wanisangam, Tq. Sonpeth, District Parbhani. 18. Devidas s/o Sambhaji Harnaval, Age 65 tears, Occ. Agri. R/o Sangam, Tq. Parli Vaijnath, District Beed. 19. Indubai w/o Devidas Harnawal, Age 55 years, Occ. Household, R/o Sangam, Tq. Parli Vaijnath, District Beed. 20. Ramdas s/o Dadarao Chormale, Age 65 years, Occ. Agri., R/o Near Papdandeshwar Mandir, Ram Nagar, Parbhani. 21. Sangita w/o Ramdas Chormale, Age 30 years, Occ. Household, R/o Papdandeshwar Mandir, Ram Nagar, Parbhani. 22. Sunil s/o Vithoba Chromale, Age 40 years, Occ. Household, R/o Kanhapur, Tq. Wadwani, District Beed. 23. Sadashiv s/o Anantrao Shinde, Age 35 years, Occ. Agri., R/o Khadki Deola, Post Ghatsawli, Tq. Wadwani, District Beed. 24. Sangita w/o Sadashiv Shinde, Age 30 years, Occ. Household, R/o Khadki Deola, Post Ghatsawli, Tq. Wadwani, District Beed. 25. Nandkishor s/o Dattopant Kulkarni, Age 45 years, Occ. Priest, R/o Wanisangam, Tq. Sonpeth, District Parbhani. ... PETITIONERS 4 Criminal Application No.3658/2009 VERSUS 1. The State of Maharashtra 2. Sow. Priti w/o Mahesh Sonnar, Age 23 years, Occ. Household, R/o Ghoda-Kaudgaon, Tq. Parali, District Beed. ... RESPONDENTS ..... Shri S.S. Choudhari, Advocate for the petitioners Shri N.B. Patil, A.P.P. for respondent No.1. Shri M.P. Kale, Advocate for respondent No.2. ..... CORAM : K.U. CHANDIWAL, J. DATE : 14th January, 2011. ORAL JUDGMENT : 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2. The issuance of process for an offence under Section 109 read with Section 494 of the Indian Penal Code by learned Judicial Magistrate. First Class, Parli Vaijnath, dated 22.5.2009 in R.C.C. No.125/2008 is questioned by invoking provisions of Section 482 of the Criminal Procedure Code. 5 Criminal Application No.3658/2009 3. Respondent No.2 and petitioner No.1 married on 10.3.2004. However, there was bickering and discomfort in the marriage, leading to several prosectuion and litigations. The respondent No.2 contended, in spite of subsistence of the marriage with her, the petitioner No.1 has entered into a second marriage with petitioner No.4 at Lohara, Taluka Manwat, at around 10.45 a.m. on 3.1.2008. Resultantly, as stated above, a prosecution is initiated against the petitioners. The learned counsel for the petitioners invited my attention to the verification of respondent No.2, dated 22.5.2008, coupled with paragraph No.12 of the complaint, to inform that the allegations/ averments therein would seldom attract infraction of Section 109 read with Section 494 of the Indian Penal Code. 4. Having read the complaint in entirety, I find, except specific role attributed to petitioner no.1, with petitioner No.4 and also against petitioner No.25, no role that could attract infraction of Section 109 read with Section 494 of the Indian Penal Code would be attributable to others. A sweeping sentence in paragraph No.8 that other petitioners distributed the consecrated rice (Akshata) to each other, which was as a customary event showered on petitioner Nos.1 and 4. This could not be attributable as an act of abetment and particularly considering strength of 22 persons. A person 6 Criminal Application No.3658/2009 unconcerned with the event of marriage if remains present, it would not constitute abetment attracting Section 109 read with Section 494 of the Indian Penal Code. Section 109 of the Indian Penal Code ordains abetment of any offence, the act abetted is committed in consequence of the abetment and no express provision is made by the Court for punishment of such abement. Explanation illustrate, an act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation or in pursuance of the conspiracy or with the aid, which constitutes the abetment. None of these ingredients are flowing against petitioner Nos.2, 3, 5 to 24. This is more so as is illustrated even in the verification. Section 109 of the Indian Penal Code is by itself creative of an offence though it is punishable in the context of other offences. There is nothing to illustrate, there was any concert or any conspiracy or instigation on the part of petitioner Nos.2, 3 and 5 to 24 in the so called second marriage between petitioner No.1 with petitioner No.4. 5. The petitioner No.25 Nandkishor, as per the allegations, was holding wedding curtain intervening the petitioner Nos.1 and 4, commonly known as “Antarpat”. The petitioner No.25 is a close relation of petitioner No.1, primarily he was a witness to the events. It is difficult to conceive at this stage that he was unmindful of the 7 Criminal Application No.3658/2009 subsisting marriage of petitioner No.1 to the respondent No.2. 6. In the result, the prosecution vide R.C.C. No.125/2008 is quashed to the extent of petitioner Nos.2, 3, 5 to 24. Criminal Application is partly allowed. Rule made absolute in above terms. Stay is vacated. K.U. CHANDIWAL JUDGE