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2013 DIGILAW 1949 (BOM)

Prakash s/o Limbaji Dhole v. State of Maharashtra

2013-09-23

ABHAY M.THIPSAY

body2013
JUDGMENT 1. The Petitioner is one of the accused – Accused No.14, in R.C.C. No.94 of 2010 filed by Respondent No.2 herein. The allegation against the Petitioner is in respect of an offence punishable under Section 494 of the IPC read with Sections 109 and 114 of the IPC. The substance of the complaint is that Respondent No.2 (hereinafter referred to as “the Complainant” for the sake of clarity), that one Sindhubai was married to one Shivaji Janardhan Doifode – Accused No.1 in the said case – and that, during the subsistence of the marriage of Sindhubai with the said Accused No.1, Accused No.1 again married one Sangeeta – Accused No.2 in the said case – and thereby committed an offence punishable under Section 494 of the IPC. The other accused are alleged to have aided and abetted the commission of the said offence, by active participation in various ways and various means. 2. After examining Respondent No.2 on oath under the provisions of Section 200 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for the sake of brevity), the Magistrate directed process to be issued against all the accused persons, including the Petitioner, with respect to the offence punishable under Section 494 of the IPC, read with Sections 109 and 114 of the IPC. Being aggrieved by the said order issuing process, the Petitioner approached the Court of Sessions by filing an application for revision, but the Additional Sessions Judge, Jalna, who heard the revision application found nothing wrong in the order passed by the learned Magistrate. 3. Being aggrieved by the said order, the Petitioner has approached this Court invoking its constitutional jurisdiction. 4. I have gone through the record and proceedings. It is clear that though the complaint gives various details as to the marriage ceremony allegedly performed between Accused No.1 Shivaji and accused No.2 Sangeeta and gives minute details with respect to the roles of the accused persons – as if the Complainant has seen the same – there is no dispute about the fact that the Complainant was not present during the marriage ceremony. In his verification statement, he has categorically stated that he secured the information regarding the marriage from ‘witnesses’. He emphasised that the information from the witnesses was ‘secured by him personally.’ 5. In his verification statement, he has categorically stated that he secured the information regarding the marriage from ‘witnesses’. He emphasised that the information from the witnesses was ‘secured by him personally.’ 5. It is, therefore, clear that the entire allegations in the complaint are based, not on the personal knowledge of the Complainant about the said event, but on what he allegedly learnt from ‘the witnesses’ (whose names are not disclosed). 6. The question is, whether on such type of hearsay, the Magistrate was justified in issuing process against the Petitioner and other accused. 7. Section 200 of the Code requires a Magistrate to examine the Complainant on oath. The objective behind the said provision is that the Magistrate should ascertain, whether or not, there are grounds for proceeding against the persons named as accused in a given case. Though the Magistrate is not supposed to be meticulous during such examination, the least that is expected of him is that he should ensure that there is some direct evidence before him, which would lead to the inference that an offence has been committed by certain persons. 8. Section 60 of the Evidence Act requires all evidence to be ‘direct’. Though the record of examination of the Complainant and Complainant’s witness before issuing process cannot be used as evidence against the accused persons, inasmuch as the same is not recorded in the presence of the accused persons, still, the statement of the Complainant recorded under the provisions of Section 200 of the Code, in order that it may be acted upon, must be such, so as to constitute ‘direct’ evidence of the facts, on the basis of which, proceeding against the accused would be justified. When the factum of marriage is, admittedly, not known to the Complainant, (which is the gist of the alleged offences) by examining him on oath, the requisite satisfaction about the truth of the assertion in that regard cannot be arrived at. Undoubtedly, the complaint could be lodged even on ‘hearsay’ i.e. on information given by some other persons, but, before deciding, ‘whether or not there are sufficient grounds for proceeding’, the Magistrate would be required to have some material before him, which must necessarily consist of statements of a person, who has knowledge of the facts alleged. Undoubtedly, the complaint could be lodged even on ‘hearsay’ i.e. on information given by some other persons, but, before deciding, ‘whether or not there are sufficient grounds for proceeding’, the Magistrate would be required to have some material before him, which must necessarily consist of statements of a person, who has knowledge of the facts alleged. That ‘the material is not to be evaluated’ or ‘it is not to be subjected to meticulous scrutiny’ should not be misunderstood to mean that such material could be pure and simple ‘hearsay’. 9. The satisfaction about the sufficiency of grounds for proceeding, must be arrived at by a legal mind. A legal mind is not expected to arrive at such a satisfaction unless somebody comes and states the fact, which is expected to be believed, based on his own knowledge. 10. The order issuing process, is therefore, patently illegal. The revisional Court failed to consider this aspect of the matter. 11. The petition succeeds. 12. The order issuing process against the Petitioner – and even the other accused – is quashed and set aside. The learned Magistrate shall, however, proceed further with the complaint in accordance with law, keeping in mind the observations made by this Court in this order. 13. Rule is made absolute in the aforesaid terms. 14. The Complainant shall remain present before the learned Magistrate on 3rd October, 2013.