Dismissed

Nivrutti Rama Patil v. the State of Maharashtra and Anr.

Bombay HC23 Sept 2008WP/1016/2008

Case brief

AI extract

What is this about?

The single judge rejected the criminal writ petition challenging the improper service of summons. The court held that under Article 227 of the Constitution of India, the petition could not be entertained as the petitioner's objection to service notice on his daughter could not be accepted. It also noted Section 482 of the CrPC should be exercised sparingly.

What did the court decide?

The petition is rejected. All other contentions on merits in the pending case are kept open.

2.It will be necessary to refer to the facts of the case in brief. The second respondent filed a private complaint alleging commission of offence under section 494 read with section 34 of the Indian Penal Code. The present petitioner has been arraigned as an accused no.5 in the said complaint. The allegation of the second respondent in the said complaint is that on 7th May 1994, she married to the first accused Sardar Bapu Mahadik in accordance with the Hindu Vedic rites.

The allegation is that the first accused subsequently married to one Kalpana on 28th April 2002. It is alleged that in the complaint that the said Kalpana was fully aware of subsisting marriage between the second respondent and the first accused. It is alleged that the present petitioner (accused no.5) is the father of the said Kalpana and the accused no.6 is the mother of the said Kalpana. It must be stated here that the said Kalpana has been described in the complaint as Kalpana Sardar Mahadik, wife of the first accused Sardar Mahadik.

3.An application was made by the petitioner on 5th August 2003 in which it was contended that a summons of the said complaint addressed to one Kalpana Sardar Mahadik has been improperly and illegally served on him. He stated that the summons was served on assumption that he is the father of Kalpana Sardar Mahadik. It was pointed out in the application that the petitioner was forced to accept the summons though he informed the concerned police officer while effecting service of summons that there is no person by the name of Kalpana Sardar Mahadik in his family and the name of his

daughter is Kalpana Nivrutti Patil. The prayer in the application is that the summons of Kalpana Sardar Mahadik which was served to him shall be taken back and action be initiated against the second respondent for getting the summons issued in the name of a non-existing person. The said application at exhibit 35 was rejected by the Trial Court by order dated 3rd May 2006. The revision application filed by the petitioner for challenging the said order has been dismissed.

4.The submission of the learned counsel appearing for the petitioner is that the summons addressed to Kalpana Sardar Mahadik could not have been served to the petitioner as he is not the father of the said Kalpana Sardar Mahadik and the name of his daughter is Kalpana Nivrutti Patil who is un-married. He submitted that the service of summons of Kalpana Sardar Mahadik to the petitioner cannot be treated as proper service of summons to the second accused as the said Kalpana Sardar Mahadik (second accused) is totally a stranger to him and the said person is not a member of his family. He, therefore, submitted that the Courts below has committed an error by rejecting the application made by the

allegation of the second respondent is that the daughter of the present petitioner by the name Kalpana married to the first accused Sardar Mahadik on 28th April 2002. Whether the petitioner’s daughter married to the said accused no.1 or not, is a question which will be decided at the time of trial. Today, the contention of the petitioner is that the person named in the summons i.e. Kalpana Sardar Mahadik is not his daughter. Whether the said Kalpana Sardar Mahadik is his daughter or not, is again a question which will have to be determined on the basis of evidence on record. The submission of the counsel for the petitoner is that the service of summons to the petitioner in the name of the second accused Kalpana Sardar Mahadik is not proper. His submission is that there is no proper service of notice. Even according to the case of the petitioner, he is not concerned with the said Kalpana Sardar Mahadik and therefore, the objection as regards improper service of summons to the second accused cannot be entertained at the instance of the petitioner. The petitioner has

invoked jurisdiction under Article 227 of the Constitution of India, which is an extra-ordinary remedy. Considering the factual contentions raised by the petitioner, this petition under Article 227 of the Constitution of India cannot be entertained. Power under section 482 of the said Code of 1973 has to be used sparingly and in very rare cases. This is not one of those rare cases in which the said power can be exercised.

Nivrutti Rama Patil v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Nivrutti Rama Patil v. the State of Maharashtra and Anr.

Case brief

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What did the court decide?

What the court decided

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