Popat Maruti Kutal Vs Shakuntala W/O. Kaushik More and Others

( 1 ) crwp303.21

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.303 OF 2021

Popat s/o Maruti Kutal..Petitioner
Age.57 years, Occ. Retired,
R/o. Gulmohor Road, Near Kohinoor
Mangal Karyalaya, Savedi, Ahmednagar,
Tq. & Dist. Ahmednagar.

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Versus

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1.Mrs. Shakuntala w/o. Kaushik More..Respondents
Age.57 years, Occ. Household,
R/o. Abiyanta Colony, Behind Adarsh
School, Aurangabad Road, Ahmednagar,
Tq. & Dist. Ahmednagar.

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2. Mrs. Vidya w/o. Vidyadhar Dhamane Age.35 years, Occ. Service, R/o. “Guru” Surabhi Colony, Bhutkarwadi, Savedi, Ahmednagar, Tq. & Dist. Ahmednagar.

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3. Mrs.Jayashri w/o. Sachin Gore, Age. 39 years, Occ. Service

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4. Sachin s/o. Asaram Gore, Age. 42 years, Occ. Service,

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Both R/o. Shivganga, Phase-3, Near Madhuban Colony, Behind Marketyard, Sarangnagar, Ahmednagar, Tq. & Dist. Ahmednagar.

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5. The State of Maharashtra

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Mr.N.B. Narwade, Advocate for the petitioner.
Mr.N.C. Garud, Advocate for respondent Nos.1 to 4.
Ms.G.L. Deshpande, APP for the respondent/State.

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CORAM : SURENDRA P. TAVADE, J.
DATED :06.09.2021

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ORAL JUDGMENT :-

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01.Rule. Rule taken up for hearing forthwith with

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the consent of the parties.

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02.By way of present petition the petitioner

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/original complainant is challenging order passed by the
Additional Sessions Judge, Ahmednagar in Criminal
Revision No.8 of 2021 dated 09.02.2021, whereby the
Sessions Court has quashed the order of issue process
against original accused Nos.3 to 6 i.e. respondent Nos.
1 to 4.

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03.The facts giving rise to present petition can be
summarized as under :-

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04.The petitioner has filed private complaint

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against respondent Nos.1 to 4 and the original accused –
Jaydeep alias Jagdish Kaushik More and Kaushik Rambhau
More for the offences punishable under sections 420, 406,
109, 34 of the Indian Penal Code, before the Court of
Chief Judicial Magistrate, Ahmednagar. Said complaint
was referred to police for enquiry under section 202 of
the Cr.P.C. Accordingly, Tofkhana Police Station carried
out investigation and submitted report before the Chief
Judicial Magistrate. On the basis of said report the
Chief Judicial Magistrate issued process against
respondent Nos. 1 to 4 and original accused – Jagdish and
Kaushik for the offences punishable under sections 420,
406, 109, 34 of the Indian Penal Code. The said order of
issue process was challenged before the Sessions Judge,
Ahmednagar under section 397 of the Cr.P.C. On hearing
the parties, the Sessions Judge, Ahmednagar partly
allowed the revision and set aside the order of issue
process against respondent Nos.1 to 4, which is impugned
in this petition.

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05.The petitioner alleged in the complaint that his
daughter Supriya, who was married on 09.12.2012. But she
took divorce from her husband. It is contended that the
petitioner was trying to settle second marriage of his
daughter – Supriya. In August, 2017 accused Kaushik came
to his house and he disclosed that he wishes to settle
marriage of his son Jagdish with Supriya. Accused
Kaushik disclosed that his son Jagdish was married but he
took divorce. Accused Kaushik gave information of his
family, his financial condition and income of son
Jagdish. It is also contended that accused Kaushik
informed the petitioner that accused Jagdish was married
to daughter of Laxman Tupe, namely, Yogita, but accused
Jagdish had taken divorce from his wife Yogita. He also
showed divorce papers to him. It is further contended
that on 21.11.2017 marriage of Supriya was performed with
Jagdish. Prior to settlement of marriage respondent
Nos.1 to 4 and original accused Jagdish and Kaushik had

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come to the house of the petitioner. There was discussion
amongst themselves regarding settlement of marriage. In

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the said discussion original accused Jagdish, Kaushik and
respondent Nos. 1 to 4 did not disclose to the petitioner
that accused Jagdish was married to one Amita Nimbalkar
and the said marriage was subsisting. It is stated that
after the marriage of daughter of petitioner – Supriya
went to the house of matrimonial house. She stayed there
for 8 – 10 months. During the stay in the matrimonial
house, she saw reply given by Advocate D.N. Bade, wherein
it was mentioned that Amita Nimbalkar was first wife of
accused – Jagdish and the said marriage was subsisting.
The petitioner sought explanation of accused Jagdish and
Kaushik as well as respondents, but they did not give any
satisfactory answer. Therefore, the petitioner filed
private complaint against original accused Jagdish,
Kaushik and respondent Nos.1 to 4, wherein the Trial
Court issued process. The said order was partially
modified by the Sessions Court, which is under challenge.

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06.On behalf of the petitioner, learned Counsel
submits that respondent No.1 is mother of accused

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Jagdish, respondent Nos.2 and 3 are sisters of Jagdish
and respondent No.4 is husband of respondent No.3. He
also contends that respondent Nos.1 to 4 are family

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members of original accused Jagdish and Kaushik. They
knew that Jagdish was married to Amita Nimbalkar in the
year 2013. Thereafter, he married to his cousin Yogita
Tupe and thereafter marriage of accused Jagdish was
settled with daughter of the petitioner. He submits that
the original accused and the respondents had been to the
house of the petitioner. There was discussion about the
settlement of marriage of daughter of the petitioner with
Jagdish. Therefore, it was expected from respondent Nos.
1 to 4 to disclose the marital status of Jagdish to the
petitioner and his daughter but they concealed the
material fact and the subsistence of marriage of Jagdish
with Amita Nimbalkar. Therefore, there is active
participation of respondent Nos.1 to 4 in the crime.
Said fact is not properly considered by the Sessions
Judge while deciding the revision. It is prayed that the
said order is required to be set aside.

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07.On the other hand, learned Counsel for

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respondent Nos.1 to 4 submits that respondent Nos.1 to 4
were not aware of the first marriage of accused Jagdish.
Said marriage was not performed with the consent of
parents and the relatives of Jagdish. Therefore, the
respondents were not aware of the said marriage.
Therefore, there is no question of disclosing facts about
the said marriage to the petitioner. It is also
contended that the respondent Nos.1 to 4 knew about
marriage of Jagdish with Yogita and their divorce and
said fact is correctly disclosed by respondent Nos.1 to 4
to petitioner along with the documents of divorce. He
also submits that the Sessions Court rightly considered
the role of respondent Nos.1 to 4 and rightly set aside
the order of issue process against them. He also submits
that the order of Sessions Court is correct, legal and
valid and therefore there is no need to interfere with
the said order.

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08.Heard learned Counsel for the petitioner and the

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respondents. Perused the complaint. It is specifically
averred by the petitioner that his daughter was married
on 09.12.2012. Said marriage was not lasted for long
time. She took divorce from her first husband in the
year 2014. Said fact was disclosed by the petitioner to
accused Jagdish and his father Kaushik, when they had
come to make enquiry about the proposal of marriage of
the daughter of the petitioner. It is specifically
averred that on the basis of information given by accused
Jagdish and Kaushik, the petitioner has decided to settle
marriage of his daughter with accused Jagdish. It is
also averred in the complaint that prior to settlement of
marriage, accused Jagdish and Kaushik and respondent Nos.
1 to 4 had been to his house. There was discussion about
the settlement of marriage and accordingly the marriage
was fixed on 21.11.2017. If this averment is taken into
account, it can be said that it was incumbent on the
respondents to disclose marital status of Jagdish to the
petitioner and his daughter. Respondent Nos.1 to 4 have

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taken defence that they were not aware of first marriage
of accused Jagdish, at the time of settlement of marriage
of daughter of the petitioner. Respondent No.1 is
mother, respondent Nos.2 and 3 are real sisters and
accused No.4 is husband of respondent No.3. If said
relations are taken into account, it cannot be believed
that the mother and sisters were unaware of the first
marriage of their son and brother respectively, in the
year 2017.

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09.The complaint was referred for enquiry, wherein

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it is prima facie established that the first marriage of
Jagdish was performed in the year 2012 with Amita
Nimbalkar. Thereafter, accused contracted second
marriage with his cousin Yogita Tupe. Second marriage
was performed on 08.02.2014. So, there is prima facie
material on record that accused Jagdish performed first
marriage in the year 2012. He performed second marriage
on 02.02.2014 and his third marriage with the daughter of
the petitioner was performed on 21.11.2017. So, if these

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events are taken into account, it cannot be believed that
the mother and sisters of accused Jagdish were not
knowing the marital history of accused Jagdish. In-fact,
it has come in the statement of respondent No.3 that she
came to know about marriage of accused Jagdish with Amita
Nimbalkar through second wife of accused Jagdish. So, it
can be said that the mother and sisters of accused
Jagdish were having knowledge about first and second
marriage of Jagdish and said facts are revealed from the
statement of witnesses recorded during the enquiry held

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by police. So, it can be said that there was sufficient
material before the Trial Court to issue process against
respondent Nos. 1 to 4.

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10.As far as observations of the Sessions Court are
concerned, in the Criminal Revision No.8 of 2021, the
Sessions Judge observed that respondent Nos.1 to 4 had no
knowledge of previous marriage of accused Jagdish.
Therefore, the Sessions Judge has set aside the order.
To my surprise the Sessions Court has not considered the

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enquiry conducted by the police. The statements of
witnesses are recorded in the said enquiry. It appears
that the Sessions Court simply believed submissions of
respondent No.1 to 4 and came to conclusion that they had
no knowledge about the first marriage of accused Jagdish.

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Said observations is not only incorrect but it is
perverse. Hence, it is required to be set aside. On the
basis of enquiry conducted by police and material placed
before the Trial Court, learned Counsel for the
petitioner submits that there is sufficient material

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against original accused as well as respondent Nos.1 to 4
for issuance of process against them. It is submitted
that the Sessions Court thought that the material placed
on record would not warrant conviction of the respondent
Nos.1 to 4. It is duty of Trial Court to verify material
placed before him and there upon to see whether there is

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material to issue process against accused persons.
Accordingly, the Trial Court has considered the material
placed before him and issued process. To substantiate
this point, he relied upon ratio laid down in the case of

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( 12 ) crwp303.21

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Jacob Harold Arnha & Anr. Vs. Mrs. Vera Aranha & Anr.,

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(1979) Cr.L.J.974, wherein this Court observed as

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under :-

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“3. It is by now well settled that at the stage of issuing
process it is not the duty of the Court to find out as to
whether the accused will be ultimately convicted or acquitted.
The object of consideration of the merits of the case at this
stage could only be to determine whether there are sufficient
grounds for proceeding further or not. Mere existence of some
grounds which would be material in deciding whether the
accused should be convicted or acquitted does not generally
indicate that the case must necessarily fail. On the other
hand such grounds may indicate the need for proceeding further
in order to discover truth after a full and proper
investigation. If, however, a bare perusal of a complaint or
the evidence led in support of it show essential ingredients
of the offences alleged are absent or that the dispute is only
of a civil nature or, that there are such patent absurdities
in evidence produced that it would be a waste of time to
proceed further, then of course, the complaint is liable to be
dismissed at that stage only. What the Magistrate has to
determine at the stage of issue of process is not the
correctness or the probability or improbability of individual
items of evidence on disputable grounds, but the existence or
otherwise of a prima facie case on the assumption that what is
stated can be true unless the prosecution allegations are so
fantastic that they cannot reasonably be held to be true. See
Debendranath Bhattacharyya v. State of West Bengal .”

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11.It is now settled law that at the time of

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issuance of process, it is not duty of the Court to find

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out as to whether accused will be ultimately convicted or

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acquitted. At that stage the Magistrate has to see
whether there are sufficient grounds to proceed further
or not.

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12.Said ratio is applicable in the facts of the
present case. The Trial Court has rightly considered the
material placed before it and issued process, but in the
Criminal Revision the Sessions Court swayed away with

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the submissions of respondent Nos.1 to 4 without
considering material on record and set aside the order of
issue of process. It is required to be set aside. With

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this, I pass following order :-

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O R D E R

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(i) The petition is allowed.

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(ii)The order passed by the Sessions Court is
set aside.

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(iii)The order of issue of process passed
against respondent Nos.1 to 4 by the Trial Court
is confirmed.

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(iv)Rule made absolute.

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[SURENDRA P. TAVADE,J.]

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snk/2021/SEP21/crwp303.21

Popat Maruti Kutal v. Shakuntala W/O. Kaushik More and Others

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Popat Maruti Kutal v. Shakuntala W/O. Kaushik More and Others

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