1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.889 OF 2004 Date of decision:15/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/889-04crapl 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 889 of 2004 1. Ramesh s/o Dhondiram Mane, Age 38 years, Occu: Service (Talathi) r/o. Shivana Takli Tq. Kannad, Dist. Aurangabad. 2. Chhaya w/o Ramesh Mane, age 20 yrs, Occu: Household, r/o Ranjani, Tq. Kallam Dist. Osmanabad. 3. Subhash s/o. Dhondiram Manage, age 46 years, Occu: Govt.Service, Joint Registrar Cooperative Society, Washi New Mumbai. 4. Sow. Sunita w/o Subhash Mane, Age 34years, occu: Household, r/o as above. 5. Smt. Ganubai w/o Dhondiram Mane, Age 72 yrs, Occu: Household, r/o Abhijeet Bunglow near Keshavrao School, Latur, presently residing at Aurangabad. 6. Sow. Lalita w/o Shaliwan Dhormare, Age 43 yrs. Occu: household, r/o. as above. 7. Shaliwan s/o Zumber Dhormare, age 48 yrs, Occu: Service, r/o as above. 8. Ramesh s/o Nagba Kalband, Age 55 yrs, Occu: Agril. r/o. Kasarkheda Tq. & Dist.Latur. 3 9. Arun s/o Pandhari Bhujbal, age 40 yrs, Occu: Agril, r/o Bhavasa Tq. & Dist.Latur. 10. Sow.Sunanda w/o Arun Bhujbal, Age 35 yrs, Occu: household, r/o as above. 11. Rajendra s/o Pandurang Sampate, Age 40 yrs. Occu: Service, r/o Shyamnagar Latur. 12. Sukhdeo s/o Dnyanoba Kukar, age 36 yrs, Occu: agril. r/o. Bhosa Tq. & Dist. as above. 13. Sow. Ratnamala w/o Sukhdeo Kukar, Age 32 yrs, Occu: Household, r/o as above. 14. Dnyanoba s/o Hariba Kukar, age 68 yrs, Occu: Agril. r/o as above. 15. Sow.Laxmibai w/o Dnyanoba Kukar, Age 60 yrs, Occu: household, r/o as above. 16. Dhanraj s/oDattoo Bhosekar, Age 40 yrs, Occu: service, r/o Bhosa, Tq. & Dist. As above. 17. Khandu s/o Martand Surawase, Age 60 yrs, Occu: Agril, r/o. Ranjani Tq. Kallam Dist. Osmanabad. 18. Sow. Kausallya w/o Khandu Surwase, Age 53 yrs, Occu:household, r/o as above. 19. Biru s/o Khandu Surwase, Age 27 yrs, Occu: Agril, r/o as above. 4 20. Narsingh s/o Nana Pandhawale, Age 32 yrs, Occu: Agril., r/o as above. 21. Sow.Shilabai w/o Narsingh Pandhawale, age 27 yrs, Occu: Household, r/o as above. 22. Gulab s/o Jaisingh Sonparkhe, Age 58 yrs, Occu: Agril., r/o as above. ...APPLICANTS VERSUS 1. Maya w/o Ramesh Mane, Age 35 yrs, Occu: Household, r/o presently residing at Subhedar Ramaji Nagar, c/o. B.M.Bhosekar, Vikram Nagar, Latur. 2. The State of Maharashtra, Through Police Inspector, Police Station, Murud, Tq. Latur. ...RESPONDENTS ... Mr. A.B.Gaikwad, Advocate for the applicants. Mrs.B.R.Khekale, APP, for respondent State. Mr. A.R.Kale, Adv., h/f Mr. R.B.Deshmukh, Adv., for respondent no.1. ... CORAM : K.U.CHANDIWAL, J. DATE : 15/9/2009 *** 5 ORAL JUDGMENT: 1. The estranged wife, being aggrieved by the husband performing second marriage during subsistence of first marriage, took recourse to criminal prosecution by RCC No.806/2003 in which the learned Judicial Magistrate, First Class, has directed issuance of process under Section 494 read with Section 34 of IPC as against accused nos. 1 and 2 while as against accused nos. 2 to 22, it is in terms of Section 494 read with Section 109 of IPC. This is questioned by the husband and other relations who are arrayed as accused in the said proceedings. 2. Mr.Gaikwad, counsel, contends the wife is bent upon to harass her husband and other respectable persons - relatives of her husband by filing successive prosecutions. He points that the prosecution of the persons like applicant nos. 8, 9, 12, 13 is uncalled for, they have no role in the matter. Likewise, according to him, the applicant no.3 is brother, applicant no.4 is wife of applicant no.3 while applicant no.5 is mother of original accused no.1. Applicant no.6 is married sister of accused no.1 while applicant no.7 is husband of the married sister. Counsel took me to the complaint lodged by the wife Sau.Maya, to address that the recitals therein germane total falsity. 6 3. The Counsel representing the wife has raised basic objection to maintainability of the application as, according to him, revision lies as against issuance of process. The allegations in the complaint should have its overall impact. At this stage, there should not have been threshold inquiry entered into threadbare aspect of the matter and he urged to dismiss the application. 4. The marital status of the wife Smt.Maya with accused no.1 Ramesh is not in controversy. Its subsistence as on the date of the offense is also not in controversy. It may be that the wife has initiated several other proceedings but this Court would not be influenced by the same as a litigant can resort to available legitimate legal recourse. 5. In the complaint the wife has shown specific role to the few of accused, having been witnessed by two named persons. At this stage of the matter, it cannot be said that the entire allegations in the complaint of the wife, to be a total falsehood, though some of accused had no role. The grain can be removed from the chaff only at the stage of trial and not at this stage. Reading the complaint as a whole, it does not indicate abuse of process or that the Court machinery is used as a lever to ventilate other 7 causes. 6. Inspite of all these aspects, the fact remains, the prosecution could not be further accelerated and accounted to the extent of accused nos. 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 21 and 22 as the role attributed to them is minimal of rather attending the so called second marriage and also participating in the religious activities like throwing the holy rice or chanting the same. 7. So far as accused nos. 1 and 2 are concerned, accused no.1 is the husband, accused no.2 is alleged second wife. Accused no.3 is brother, though in Government service, accused no.4 is wife of accused no.3. Accused No.5 is mother of the husband. Accused no.6 is the sister and accused no.7 is sister's husband. They are shown to be specifically played the role. Accused Nos.19 and 20 alleged to have performed the religious activities as they have held a cotton sheet (ANTER PAT), a customary religious process, intervening bride and bridegroom at the time of performing the second marriage. 8. In the situation, though Counsel repeatedly harped that accused no.3 has no active role, it is more than clear, he being brother of 8 husband accused no.1, diligently attended the activities and initiated the second marriage which prima facie indicts him. Consequently, deletion of accused no.3 at this stage of the matter is uncalled for. Hence order: ORDER a) Criminal Application partly allowed. The proceedings to the extent of accused nos.8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 21 and 22 is quashed and set aside. Rule partly made absolute to the extent of above referred accused. b) Interim stay vacated. c) The learned Judge seized with the matter shall ensure to complete the trial at the earliest considering the age and the controversies indicated. d) Needless to add, the accused no.3, brother, who is reportedly a Government servant, deputed at Mumbai, shall be exempted by the learned Judge, whenever his active presence is not warranted, on application to this effect. ( K.U.CHANDIWAL) JUDGE agp/889-04crapl