1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 126 of 2011 Gajanan and ors v. State of Maharashtra and anr ----------------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------------------------------------- Mr M. Badar, Advocate for applicants Mr M.K. Pathan, APP for respdt no.1 Mr R.S. Kurekar, Adv for respdt no.2 Coram: A.P. Bhangale, J Dated : 27th July 2011 1. The applicants have questioned the order of issuance of process against them by the Judicial Magistrate, First Class, Malegaon by order dated 14.12.2010. Learned Magistrate has issued process for the offence punishable under Section 494 of the Indian Penal Code against applicant no. 1 Gajanan while process has been issued under Section 494 read with Section 109 of the Penal Code against applicants no. 2 to 28. 2. According to learned counsel for the applicants, earlier, applicant no. 1 and others were prosecuted for the offences punishable under Sections 498A, 506 Part-II read with Section 34 of the Indian Penal Code in Regular Criminal Case No. 131 of 2007 in the Court of Judicial Magistrate, FC, Barshi Takli, District Akola. In that case, the accused were acquitted as the prosecution had failed to prove case against them. It is further submitted that sixteen applicants had challenged the order of issuance of process by Criminal Application No. 1328 of 2009 before this Court and it was on the same set of facts. Criminal Application No. 1328 of 2009 which was filed under Section 482 Cr. P. C. was allowed whereby after setting aside the issuance of process, the complainant was granted liberty to examine witnesses desired by her before the learned Magistrate. 2 The order was passed by this Court on 25.1.2010. Later, it appears that learned Magistrate, after police enquiry, pursuant to the order passed by this Court, was pleased to record evidence of complainant and her witnesses and then issued process by the impugned order against the present applicants. 3. Learned counsel for the applicants submitted that process ought not to have been issued on the ground that there was no acceptable evidence regarding performance of second marriage after following necessary religious rights. He made reference to ruling in Trilochan Sahoo v. Srimata Sarala reported in 2009 Cri.L.J. 3281 in order to submit that alleged second marriage has to be established by adducing proof of essential ceremonies constituting such marriage.. He further relied upon Smt Manju Devi v. State of Bihar and ors reported in 2000 Cri.L. J. 3382 to submit that there must be evidence of witnesses who have seen the accused performing second marriage. Mere custom of exchange of garlands between accused and alleged second wife is not a recognized mode of proving marriage under Hindu law. Reliance is placed on Gopal Lekharu v. State of Assam & anr reported in 2005 Cri. L.J. 4719 and Santi Deb Berma v. Smt Kanchan Prava Devi reported in AIR 1991 SC 816 as also Surekha Murdangia v. Ramahari Murdangia and ors reported in 2005 Cri.L.J. 3847 to canvass that essential ingredients of “Saptapadi” and “Homa” are necessary to be proved to establish solemnization of a valid marriage. Learned counsel pressed into service ruling in Shri Balasaheb and ors v. Sou Gayabai reported in 2003 Cri.L.J. 2343 to submit that if there is no averment in the complaint that customary rites and ceremonies prevalent in the caste or tribes were performed, it cannot be said that a case is made out for framing charge under Sections 494 and 109 of the Penal Code. Learned counsel lastly relied on ruling in Dhariwal Tobacco and ors v. State of Maharashtra and anr reported in (2009) 2 SCC 370 to contend that availability of alternative remedy of filing revision under Section 397 Cr. P. C. would not be a bar to approach the High Court under Section 482 3 Criminal Procedure Code. 4. Learned counsel for respondent no. 2 submitted that the rulings cited by the counsel for applicant relate to the cases decided after full-fledged trial and in none of the cases the Courts were dealing with the order of issuance of process. In the submission of learned counsel for respondent no.2, therefore, none of the rulings can be applied to the case at hand. He submits that the learned Magistrate has issued process after holding due judicial enquiry. He prayed for dismissal of the application. 5. On perusal of statements of complainant and her witnesses viz. Madhukar Jadhav and Devchand Landkar, learned Magistrate satisfied himself of prima facie case for issuance of process. In her statement, complainant has stated that on 14.4.2007 when she had gone to her matrimonial house along with her father, she saw a new girl in the house who disclosed her name as Geeta wife of Gajanan and both of them had slept in one room as husband wife. Witness Madhukar Jadhav has stated that on 20.3.2007 when he had gone to Avilya Maharaj Sanstha, Devchand and Sheshrao informed him that on earlier day i.e. on 19.3.2007, on the occasion of “Gudhi Padwa”, Gajanan (applicant no. 1) solemnized marriage with Geeta. According to eye witness Devchand, although he had stated the fact to father of Geeta that complainant Deepali is wife of Gajanan, he did not pay any heed nor Gajanan and his father. On examining the statements of complainant and her witnesses, learned Magistrate found existence of prima facie case against the applicants for to issue process, as aforesaid. 6. It is well settled that availability of alternative remedy of filing revision under Section 397 Cr. P. C. cannot be a ground to dismiss application under Section 482 Cr. P. C. In Didigam and anr v. State of AP reported in (2008) 2 SCC 403, the Apex Court has held thus : “.... the powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power 4 requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” 8. On perusal of the statements of complainant and her witnesses as also the detailed order passed by the learned Magistrate, in my opinion, this is not a fit case where by exercise of extraordinary powers vested with this Court under Section 482 Cr. P.C. should be exercised. 9. For the reasons stated above, no case is made out for interference with the impugned order. Application is dismissed. JUDGE joshi