IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1793 OF 2000. WRIT PETITION NO.1793 OF 2000. WRIT PETITION NO.1793 OF 2000. Chandrika Govind Auchare. ..Petitioner. versus Suryakant Sahebrao Salvi & Ors. ..Respondents. .... Ms. Jai V.Mhaskar, i/b. Girish S.Godbole, Advocate for the Petitioner. Mr. J.P.Yagnik, APP for Respondent No.4-State. None present for the Respondent No.1. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 8TH JULY,2008. : 8TH JULY,2008. : 8TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard the learned counsel appearing for the petitioner and the learned APP appearing for the State of Maharashtra. None appears for the first respondent - the original complainant. 2. The first respondent filed a private complaint against the petitioner and the two others (the respondent nos.2 and 3 herein) alleging commission of offences under sections 495, 107 of the Indian Penal Code. 3. The case of the first respondent was that there was a divorce between him and his first wife in - 2 - the year 1989. As he intended to remarry, he had enrolled his name with one Shri V.R.Hiremath (P.W.3) who was running a marriage bureau. According to the first respondent, at the time of enrolling his name, he had disclosed to Shri Hiremath that he was a divorcee. The first respondent relied upon an advertisement published in matrimonial column of a newspaper ’Daily Sakal’, wherein the petitioner was described as a virgin and unmarried 40 years old woman. It is stated that relying upon the said advertisement, he approached Shri Hiremath. Shri Hiremath introduced him to a family friend of the petitioner as well as the second and the third respondents. 4. The marriage between the petitioner and the first respondent was solemnized on 16th August 1990 as per the Buddhist rites. Thereafter, they started residing together. Sometimes in the month of November 1992, one Shri Govind Narhar Auchare (P.W.2) approached the first respondent and inquired about the relationship between the first respondent and the petitioner. The said Govind Auchare informed the first respondent that he had married to the petitioner in the year 1965 and the said marriage - 3 - still subsisted. It is alleged in the complaint that when the first respondent inquired with the petitioner, she could not give any satisfactory explanation. Therefore, the first respondent filed a petition before the Family Court seeking a declaration that his marriage with the petitioner was void. Thereafter, the first respondent filed the private complaint. Initially, the complaint was dismissed by exercising powers under section 203 of the Code of Criminal Procedure, 1973. Thereafter, the complaint was restored in revision by the Sessions Court and evidence before the charge was recorded. After considering the evidence on record, the learned Judicial Magistrate passed an order of discharge. The first respondent filed a revision application and challenged the order of discharge. The Sessions Court has interfered by setting aside the order of the Trial Court. The Sessions Court directed that a charge be framed against the petitioner and the respondent nos. 2 and 3 for offence punishable under sections 495 r/w 107 of the Indian Penal Code. 5. The learned counsel appearing for the petitioner has taken me through the notes of - 4 - evidence. She submitted that there is nothing on the record to show that Shri V.R.Hiremath had published the advertisement with the consent of the petitioner. She pointed out that in fact, the form at Exhibit 240 got filled in by the said Shri Hiremath from the petitioner records that the petitioner was nominally married during her childhood. She submitted that there is no attempt to conceal anything by the petitioner. She submitted that the Sessions Court has committed an error by interfering with the order of discharge. None appears for the first respondent though the notice is served. The learned APP for the Respondent supported the impugned order. 6. I have carefully considered the submissions. The first respondent stated that in November 1992, Shri Govind Auchare made an inquiry by visiting his office, when the said Govind Auchare informed him that he had married to the petitioner in the year 1965. The case of the petitioner is that the petitioner had represented by publishing an advertisement in ’Daily Sakal’ that he was unmarried. The question is whether the petitioner had suppressed the fact of her earlier marriage. - 5 - 7. The PW.3, Vivekanand Hiremath, in paragraph no.1 of his examination-in-chief stated as under :- . "Now, I am shown the marriage form Exhibit 240 by accused no.1. It is in my hand writing. After reading over its contents, to accused no.1, I had obtained the signature of accused no.1. This form is dated 4/07/1990. Then, I had published her bio-data in Daily Sakal dated 8/7/1990. Before it, I had shown the draft of it to accused no.1. I used to publish the marriage form number of the person. The marriage form of accused no.1 is bearing no.1899. Then complainant had approached me and I had introduced him with the accused no.1, at Pune in my office, within a period of 2 to 3 days from advertisement. Then, they might have thought over the proposal of marriage." 8. In his cross-examination in paragraph no.3 of his deposition, the said witness stated as under :- . "In respect of second marriage, there is column for supplying information about first marriage, and in Exh.40, I have written that accused no.1 was married in the childhood, is written by me - 6 - on enquiry with her. I do not suppress these kind of information from any party. Now, I do not remember as to whether comlainant asked to show this form Exh.40 and as to whether I had shown him or not. I had deposed in proceeding, i.e. marriage petition." 9. The said witness admitted that the public notice was not signed by the first respondent. He admitted that the public notice does not bear the name of the petitioner. 10. The first respondent answered a question asked by the learned Trial Judge, in the following manner :- . "Q. Whether Hiremath refused you to see the information about accused no.1 ? . Ans.: (Court observation : The witness has stated that this question cannot be answered by him as the situation was not proper)." 11. It will be necessary to refer to section 495 of the said Code which reads thus :- - 7 - . "495. "495. "495. Same offence with concealment of Same offence with concealment of Same offence with concealment of former former former marriage from person with whom subsequent marriage from person with whom subsequent marriage from person with whom subsequent marriage marriage marriage is contracted.- is contracted.- is contracted.- Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 12. In the present case, in the marriage form at Exhibit 240, the petitioner had disclosed her earlier marriage during her minority. The public advertisement was not given by the petitioner, but it was published at the instance of Shri Hiremath (PW.3). 13. The advertisement does not mention the name of the petitioner. 14. The offence under section 495 can be alleged only if there is prima-facie material on record to show the concealment of the fact of earlier marriage. The document at Exhibit 240 makes it very clear that there was no intention on the part of the petitioner - 8 - of concealing the marriage in as much as if there was such an intention, the petitioner would not have disclosed the said fact in the marriage form at Exhibit 240. Moreover, there is nothin on record to show that the advertisement in ’Daily Sakal’ referred to the petitioner. The said advertisement was admittedly not published by the petitioner. 15. The learned Additional Sessions Judge has relied upon the registration certificate of the marriage solemnized between the petitioner and the first respondent. In the said document, status of the petitioner has been given as unmarried. What is incorporated in form 240 is the statement of the petitioner herself. There is not even a prima-facie material on record in support of the allegation of concealment of earlier marriage. The learned Trial Judge was right in discharging the petitioner and the second and the third respondents. 16. In the circumstances, the petition must succeed and rule is made absolute in terms of prayer clauses (a) and (b). [ A.S.OKA, A.S.OKA, A.S.OKA, J.] J.] J.]