Ganesh Harsingh Patil Vs. State of Maharashtra - Court Judgment

Excerpt:
- maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held, section 15 clearly states the varied powers that are vested in the police patil. he is vested with the power to call and examine witnesses, record their statements and search for concealed articles. such are the powers given to the police patil under the provisions of the village police act. the powers vested in the police patil under the provisions of the village police act are relatable to the duties and functions for which the police patil is appointed. to give meaning to these powers beyond the scope of the duties would be an approach not quite permissible in law. the duties, functions and powers of the police patil under the provisions of the village police act do not vest him with the powers which are vested in police officer under the provisions of the criminal procedure code. the powers given to him under the village police act are limited in their nature and scope and are not as wide specific and consequential as the powers of a police officer under the provisions of the criminal procedure code. the police patil is to act unlike a police officer under the orders of the district magistrate and has to report the matters to him and even where he makes some inquiry or investigation, he is expected to submit report to the station officer and has not been empowered to take any further action, like preparation of a charge sheet or its presentation before the court of competent jurisdiction. he is vested with no powers in regard to the powers vested in an investigating officer under the provisions of section 173 of the criminal procedure code. the act does not contain any deeming provision which by fiction of law would term a police patil as a police officer. it could be possible that an act may specifically stipulate that a police patil for all intent and purpose shall be deemed to be a police officer under the provisions of the village police act and/or the criminal procedure code. in the absence of such a deeming fiction of law, it is difficult to confer the status of a police officer in law upon a police patil or accept the contention that the police patil is clothed with the powers and functions of a police officer. neither there is any specific provisions in the act not on principle of implied interpretation it can be said that provisions of the act suggest that the police patil is a police officer in law. his duties, functions and powers are not identical or even closely identical to the powers of a police officer under the provisions of the criminal procedure code. the court 1. heard shri chatterji, advocate for the applicants and shri tambe, learned additional public prosecutor for the state-respondent no. 2. 2. present respondent no. 1, who claims to be first wife of petitioner, filed regular criminal case no. 16 of 1999 against present petitioner and 13 others for an offence punishable under section 494 read with section 109 of the indian penal code. after verification, by recording statement of the wife, learned magistrate was pleased to issue process by an order dated 28-1-1999. by an application exhibit 59, accused approached the trial court that the complaint may be returned to the complainant for presentation to the competent court under section 201 of the code of criminal procedure, because the allegedincident (second marriage of the respondent no. 1) was alleged to have taken place at borgaon, taluka sillod, district aurangabad, whereas the complaint is filed at kalamnuri and the place of offence is not within the territorial jurisdiction of judicial magistrate first class, kalamnuri. the application was rejected by the magistrate vide order dated 21-7-2000. it appears that husband challenged this order by criminal revision no. 31 of 2000 in the court of additional sessions judge, hingoli. by observing that the court of judicial magistrate first class, kalamnuri has jurisdiction to take cognizance of the matter in the light of section 182(2) of the code of criminal procedure, 1973, learned additional sessions judge confirmed the order passed by learned judicial magistrate first class, kalamnuri. the orders dated 21-7-2000 by the learned magistrate and dated 8-2-2001 by the learned additional sessions judge are being impugned by the present application. 3. shri chatterji arguing for the applicants has pressed into service the issue of jurisdiction. he has pointed out that there is a time gap of nearly two years between the separation of complainant from the present petitioner and present petitioner solemnizing alleged second marriage. according to him, since the second marriage was not the cause for wife to separate from the husband and for taking permanent residence to some other place than the place where she last cohabited with the husband, the place, where she was residing much before the second marriage of husband will not confer jurisdiction upon the court wherein she so resides. 4. section 182(2) of the code reads as follows ;-- 'any offence punishable under section 494 or 495 of the indian penal code, may be inquired into or tried by a court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by first marriage, or the wife by the first marriage has taken up permanent residence after the commission of the offence.' the last clause, underlined for the purpose of emphasis is an addition to section 182(2) inserted by amendment act 45 of 1978 with effect from 18-12-1978. as can be seen from the orders of the magistrate and sessions judge, both have upheld the contention of the wife that the court within whose jurisdiction she is residing is competent to take cognizance of the matter. 5. before the lower appellate court reliance was placed on a decision of single judge's judgment in case of durgabai v. bhagatram, 2000 (1) crimes 452. it appears that the learned additional sessions judge discarded the view of the madhya pradesh high court relied upon by the learned counsel for the husband/accused in the light of observations of punjab and haryana high court in case of ravinder kaur v. gurmit singh .coming to the observations of the madhya pradesh high court in case of durgabai (supra), even now being relied upon by advocate shri chatterji, it must be said that the observations in the reported case are of very little help for interpretation of the clause added by amendment act 45 of 1978 in section 182(2) of the code. as can be seen from the text of the judgment reported, emphasis was on the wife not pleading factual data in the complaint which would indicate the court to be the competent court having territorial jurisdiction to entertain the complaint regarding the offence of bigamy. this is evident from the opening part of paragraph 5, which reads as follows : 'for the purpose of determining the jurisdiction, provisions of section 182 of criminal procedure code will have to be considered seriously. there has to be an allegation in the complaint on either of the following points, one; that the alleged offence of second marriage took place within the territorial jurisdiction of the court where criminal complaint has been filed; two; the spouses last resided together at a place which was within the local jurisdiction of the court where the complaint has been filed, and; three; that there should be averment in the complaint that the wife had taken up permanent residence in the local jurisdiction of that court, where the complaint is lodged.' the said judgment, in my view, does not deal with the interpretation of section 182(2) much less impact of word after as incorporated in the added clause. 6. as against this in case of ravinder kaur (supra) relied upon by the counsel of the wife in the lower appellate court, there was a dispute regarding jurisdiction of the magistrate. the complaint for offence under section 494 of indian penal code was filed in the court of judicial magistrate (f.c.) at nabha. a plea was raised on behalf of accused that the court had no jurisdiction because the offender husband had not resided with the aggrieved spouse (petitioner) within the jurisdiction of nabha, but the wife was residing within the territorial jurisdiction of judicial magistrate (f.c.) nabha, after the second marriage of husband and at the time of filing of the prosecution. it was observed by the learned judge of p & h; 'as it seems to me, the spirit of section 182(2) of the code of criminal procedure is to throw open a convenient jurisdiction to the offended spouse. even while reading evidence for the purpose, the courts have to lean towards that angle in fixing jurisdiction. though it is true that the allegations in the complaint and the evidence of the wife are silent about her permanent residence within the territorial jurisdiction of the court at nabha, yet the courts below could have drawn the inference from the mere incidence of her residence within jurisdiction, to be permanent residence. an absolute strictconstruction of the word, 'permanent' in the sequence could lead to many as undesirable result and an abuse of the process of the court.' it can be seen that even in this case, the alternate plea raised by the counsel of the wife was opposed on the ground of absence of pleadings. however, apart from liberally reading the averments in the pleadings, the learned judge has also gone on record to observe that the spirit of section 182(2) of the code is to throw open the convenient jurisdiction to the offended spouse i.e. making an alternate venue available to the offended spouse for initiating the prosecution. 7. in an attempt to find out the object and reasons for amendment in section 182(2) of the code, following commentary is available at page 312 of air manual, v edition. 'in the absence of a special provision of the offence of bigamy can be inquired into or tried only at the place where the offence is committed. this fact, coupled with the statutory restriction that a complaint by the aggrieved wife or husband is necessary for initiating the proceedings against the bigamist, places undue obstacles in the way of prosecuting the latter. it makes it easy for that person to go to a distant place, perhaps in another state, get the second marriage performed and return with impunity to his or her usual place of residence and live with his or her second spouse in the same neighbourhood as the first. in other countries where the law of monogamy is traditional and is enforced with greater rigor, such conduct would not be possible. since bigamy is conceived as an offence against the institution of marriage in which society is concerned, we consider that practical opportunity to bring offenders before the courts should not be denied by restricting the venue to local areas where the bigamous marriage was actually performed. it should, in our opinion, be extended to the place where the offender last resided with his or her lawfully married spouse.' 'section 182 being amended to enable a complaint by a woman relating to an offence of bigamy, to be made at the place of permanent residence after the commission of the offence instead of at the place where she last resided with the husband.' section 177 of the code restricts the place of enquiry and trial, ordinarily to the court within whose local jurisdiction the offence is committed. section 182(2) enables the prosecutrix to file the prosecution for the offence punishable under section 494 of the indian penal code at three possible places. i) the court within whose territorial jurisdiction, second marriage was solemnized -- this part is in harmony with section 177 of the code. ii) the court within whose territorial jurisdiction the complainant wife last resided / cohabited with the offending husband. iii) the place where, she has taken up permanent residence after the second marriage of offending husband. addition of two clauses makes two more venues available to the offended wife and thus it can be said with certainty that spirit of section 182(2) is to make convenient forum available to the offended wife. first paragraph of the commentary borrowed from air manual indicates that second part of section 182(2) has taken care of the situation when the husband solemnizes second marriage by going at a place different than the place of cohabitation with the offended wife. in spite of this by criminal law procedure act 45 of 1978, the third venue, namely, place where the wife has taken a permanent residence after the second marriage of husband is opened and made available to the wife. the spirit behind the amendment being for the purpose of making convenient venue available to the offended wife, the issue whether she took up different permanent residence than the place where she was cohabiting with the husband is a result of or cause for second marriage is irrelevant, and the legislature cannot be presumed to have addressed to this aspect white incorporating the word 'after' in the said clause. according to shri chatterji plain reading to added clause indicates that the wife is cohabiting with the husband till performance of second marriage and has taken up permanent residence at a place different than the place of cohabitation only after the knowledge of second marriage, and hence, the clause is required to be construed with the strict sense and the third venue will be available to the wife only after she has taken up permanent residence at different place than the place of cohabitation with the husband, as a result of second marriage. such an interpretation would be against the spirit for which the amendment was incorporated and hence cannot be accepted. the word 'after' will have to be construed liberally and the wife by virtue of section 182(2) shall have right to prosecute a complaint in the court where she has taken up permanent residence, at a place other than the place of cohabitation with the husband, irrespective of the fact whether that was only after the second marriage or even prior to second marriage. 8. shri chatterji also argued that no prima facie case is made out by the wife. having gone through the complaint it appears that suvarna hareshwar chavhan alleged to be the wife as a result of second marriage, is impleaded. her parents and some relatives who attended the marriage are also added as accused persons with the assistance of section 109 of the code. no doubt the evidence of complainant herself on this aspect is bound to be hearsay evidence on the matter, but there is list of as many as five witnesses, who would be examined before the trial court, when the trial proceeds. since subsistence of marriage of petitioner/accused no. 1 and solemnization of marriage by petitioner with accused no. 2 is pleaded at the stage of issuance of process, i am unable to agree with shri chatterji that the complaint is unable to make out any offence as against the persons recited as accused. in view of the observations as above, the application is required to be and is accordingly dismissed. 9. application dismissed.