Judgment :- Oral Judgment: 1. Respondent No. 1 remained absent though served. The matter is called out serially. It was shown on final hearing Board, hence taken up for hearing. 2. Respondent No. 1 filed complaint in the Court of Judicial Magistrate, First Class, Court No. 2, Khamgaon being Criminal Case No. 88 of 2006 against Shrikrushna Bhaskar Wagh, Harsha Wagh, the applicant and 8 other persons. The applicant is shown as accused No.3 in the said complaint. According to respondent No. 1 while her marriage was subsisting with original accused No. 1 Shrikrushna, said Shrikrushna entered into matrimony with original accused No.2 Harsha Wagh. Gajanan More who happens to be the father of Harsha Wagh is shown as accused No. 3 in the complaint, who is alleged to have participated in the marriage function and was allegedly responsible for arranging marriage of original accused No. 1 and original accused No.2. In the body of the complaint allegations are levelled against all the accused that they have committed offence punishable under Section 494 read with Section 34 of the Indian Penal Code. That is how the complaint is styled. On the said complaint, verification was recorded and the learned J.M.F.C. after perusing the entire record passed order thereby directing issuance of process against all the accused including present applicant under Section 494 read with Section 34 of the Indian Penal Code. This order dated 05/8/2006 came to be challenged by the applicant by filing criminal revision No. 79 of 2006 before the learned Ad hoc Additional Sessions Judge, Khamgaon. The learned Additional Sessions Judge by judgment and order dated 09/9/2008 dismissed the said revision. In the body of the judgment following observation is found; “.....The learned Trial Court was perfectly right and rather fully justified in issuing the process against accused u/s 494 read with 109 I.P.C....” This observation of the learned Additional Sessions Judge is contrary to what is appearing in the order passed by the learned J.M.F.C. in as much as process was issued against the applicant as also other accused under Section 494 read with Section 34 of the Indian Penal Code. On account of dismissal of the revision, as of today, the process issued against the applicant is under Section 494 read with Section 34 of the Indian Penal Code. 3. Learned Advocate Mr. On account of dismissal of the revision, as of today, the process issued against the applicant is under Section 494 read with Section 34 of the Indian Penal Code. 3. Learned Advocate Mr. Sirpurkar appearing on behalf of the applicant drew my attention to the provisions of Section 494 I.P.C. and submitted that the process can be issued under Section 494 I.P.C. against that person who enters into a second matrimony, and therefore, the process issued against the present applicant under Section 494 read with Section 34 I.P.C. is wrong because the applicant had not entered into matrimony with original accused No.1 and in any case on consideration of entire record, the process could not have been issued under Section 494 read with Section 34 I.P.C. and to that extent there is illegality on the part of the learned J.M.F.C. which illegality was in a way confirmed by the order passed by the learned Additional Sessions Judge. He, therefore, submitted that the order passed by both the Courts below should be quashed. 4. Learned A.P.P. Mr. Yengal submitted that it appears that there is some misunderstanding in the mind of the learned J.M.F.C. though it could be said that process could not be issued under Section 494 read with Section 34 of the Indian Penal Court. He submitted that the process should have been issued by the J.M.F.C. under Section 494 read with Section 109 of the Indian Penal Code against applicant as it is possible to say that the applicant (accused No.3) happens to be the father of accused No. 2 has abeted the offence under Section 494 of the Indian Penal Code. The learned A.P.P. further submitted that it would be proper if this Court modifies the order of issuance of process and direct that process should be issued under Section 494 read with Section 109 of the Indian Penal Code. 5. After having considered the point involved, I am inclined to observe that on the basis of the order passed by learned J.M.F.C. on 05/8/2006, it is clear that learned J.M.F.C. was convinced that a prima facie case is made out against the respondents accused Nos. 1 and 2 as having entered into a second matrimony when marriage between original accused No. 1 and present respondent No. 1 was subsisting. 6. 1 and 2 as having entered into a second matrimony when marriage between original accused No. 1 and present respondent No. 1 was subsisting. 6. The next question which the learned J.M.F.C. should have addressed was whether what role is played by the applicant in performance of the said marriage of accused Nos. 1 and 2 and whether the applicant has abetted the commission of the offence of Section 494 I.P.C. of his daughter and original accused No. 1 who happens to be the husband of respondent No.1. In my view, it would be proper if the order passed by the learned J.M.F.C. issuing process under Section 494 read with Section 34 I.P.C. is set aside and the learned J.M.F.C. is directed to consider the record before him (on the basis of which he issued process on 05/8/2006) hear respondent No. 1 and then pass a fresh order on the complaint filed by respondent No. 1 and decide whether any process is required to be issued against the applicant and if ‘yes’, under what section of I.P.C. 7. In my view, aforesaid procedure would meet the ends of justice, particularly because it would not be proper for this Court to appreciate the record which was before the learned J.M.F.C. and pass an order. This is also required to be done because respondent No. 1-original complainant is absent before this Court. 8. On consideration of the complaint it is noticed that original accused Nos. 4 to 11 are arraigned as accused. The point involved so far as the applicant would also be applicable so far as original accused Nos. 4 to 11 are concerned. It is noticed that these original accused Nos. 4 to 11 have not challenged order dated 05/8/2006 by which process was ordered against them under Section 494 read with Section 34 of the Indian Penal Code. If this is so, the principle on the basis of which process issued against the present applicant is being quashed, the said principle can be extended in regard to original accused Nos. 4 to 11 and the order issued against the present applicant and original accused Nos. 4 to 11 is required to be quashed and the respondent is required to be heard and after considering the record, fresh order will have to be passed. 9. Original accused Nos. 4 to 11 and the order issued against the present applicant and original accused Nos. 4 to 11 is required to be quashed and the respondent is required to be heard and after considering the record, fresh order will have to be passed. 9. Original accused Nos. 1 and 2 are alleged to have entered into the marriage when marriage between accused No. 1 and respondent No. 1 is said to be subsisting. In view of this, the process issued against original accused Nos. 1 and 2 under Section 494 read with Section 34 of the Indian Penal Code is required to be reconsidered by the learned Judicial Magistrate, First Class. 10. In substance, once order dated 05/8/2006 issuing process under Section 494 read with Section 34 I.P.C. is found to be defective with reference to various accused, it would be proper if the learned J.M.F.C. is directed to consider the record which was before him as on 05/8/2006 and decide whether process is required to be issued against which accused and if answer is in affirmative, the learned J.M.F.C. shall consider the provisions of the Indian Penal Code in the proper perspective and in the wake of allegations levelled against each of the accused and then pass appropriate order. 11. In view of the aforesaid discussion, following order is passed: i) Order dated 05/8/2006 passed by Judicial Magistrate, First Class, Khamgaon in Regular Criminal Case No. 88 of 2006 thereby issuing process against all the accused including the applicant under Section 494 read with Section 34 of the Indian Penal Code is set aside. ii) Regular Criminal Case No. 88 of 2006 is restored to the file of the Judicial Magistrate, First Class, Court No. 2, Khamgaon to the status as it was prevailing as of 05/8/2006. The learned J.M.F.C., Khamgaon is directed to hear the respondent, consider the record which was before him as of 05/8/2006 and decide whether any process is required to be issued against all or any of the accused mentioned in the complaint. While doing so, he shall consider the allegations and the record, qua each accused and decide as to under what section process is to be issued respectively, if at all, such a process is required to be issued. iii) If record and proceedings is received by this Court, it be sent to the Court of J.M.F.C., Khamgaon, expeditiously. While doing so, he shall consider the allegations and the record, qua each accused and decide as to under what section process is to be issued respectively, if at all, such a process is required to be issued. iii) If record and proceedings is received by this Court, it be sent to the Court of J.M.F.C., Khamgaon, expeditiously. iv) After the record is received, the learned J.M.F.C., Khamgaon shall secure presence of respondent No.1 before him and comply with the aforesaid order. v) In view of the above, bail bonds of the accused, who are shown in Regular Criminal Case No. 88 of 2006, stand cancelled.