1. The present Special Criminal Application under Article 226 of the Constitution of India has been preferred by the petitioner-original accused nod. 7 to quash and set aside the impugned order passed by the learned Chief Judicial Magistrate dated 02/12/2006 in Criminal Inquiry Case No. 10/2005 directing to issue process against the petitioner for the offence punishable under Section 494 read with Section 114 of the Indian Penal Code as well as the impugned judgment and order passed by the learned revisional Court dated 26/02/2007 in Criminal Revision Application No. 9/2007 in dismissing the said Criminal Revision Application confirming the order passed by the learned Magistrate issuing process against the petitioner for the offence punishable under Section 494 read with Section 114 of the Indian Penal Code.
2. Respondent no. 2-original complainant had filed the criminal Complaint against the petitioner and other accused persons in the Court of learned Chief Judicial Magistrate, Amreli for the offence punishable under Section 494 read with Section 114 of the Indian Penal Code, which was numbered as Criminal Inquiry Case No. 10/2005. It appears that thereafter after holding necessary inquiry under Section 202 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate, Amreli by order dated 02/12/2006 directed to issue process against original accused nos. 1, 2 and 7 (inclusive of the petitioner-original accused no. 7) for the offence punishable under Section 494 and 114 of the Indian Penal Code. Being aggrieved and dissatisfied with the order passed by the learned Magistrate directing to issue process against the petitioner- original accused no. 7 the petitioner preferred Criminal Revision Application No. 9/2007 before the learned Sessions Court, Amreli and the learned Sessions Judge, Amreli by impugned judgment and order dated 26/02/2007 has dismissed the said Revision Application confirming the order passed by the learned Chief Judicial Magistrate, Amreli. Hence, the petitioner-original accused no. 7 has preferred the present Special Criminal Application under Article 227 of the Constitution of India.
3. Shri Jay Thakar, learned advocate appearing for Shri Gondalia, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such the petitioner has not committed any offence as alleged for the offence punishable under Section 494 and 114 of the Indian Penal Code. It is submitted that as such the petitioner acted as a priest and performed the marriage of original accused no. 1 and, therefore, it cannot be said that the petitioner has committed any offence as alleged under Section 494 and 114 of the Indian Penal Code and, therefore, it is requested to allow the present petition and quash and set aside the impugned orders passed by both the Courts below.
4. Shri Tolia, learned advocate appearing on behalf of respondent no. 2-original complainant has stated at the bar that in the facts and circumstances of the case and considering the role attributed to the petitioner and as the petitioner is alleged to have acted as a priest while solemnizing the marriage of original accused no. 1 with another lady, which is considered as second marriage, he has no objection if the impugned orders are quashed and set aside and the process issued by the learned Magistrate is quashed and set aside, however, has requested to make suitable observation that the same shall be without prejudice to the rights and contentions of respondent no. 2-original complainant and the prosecution against other accused persons and they may be tried by the learned Magistrate in accordance with law and on its own merits, without, in any way, being influenced by the present order of quashing and setting aside the process issued against the petitioner for the offence punishable under Section 494 read with Section 114 of the Indian Penal Code.
5. In view of the above stand taken by Shri Tolia, learned advocate appearing on behalf of respondent no. 2-original complainant recorded hereinabove, this Court is not assigning any further reasoned order while quashing and setting aside the order passed by the learned Chief Judicial Magistrate, Amreli directing to issue process against the petitioner for the offence punishable under Section 494 and Section 114 of the Indian Penal Code as well as while quashing and setting aside the impugned judgment and order passed by the learned Sessions Judge, Amreli in Criminal Revision Application.
6. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The order passed by the learned Chief Judicial Magistrate, Amreli dated 02/12/2006 in Criminal Inquiry Case No. 10/2005, which is subsequently numbered as Criminal Case No. 1430/2006 directing to issue process against the petitioner for the offence punishable under Section 464 and Section 114 of the Indian Penal Code as well as the impugned judgment and order passed by the learned Sessions Judge, Amreli dated 26/02/2007 in Criminal Revision Application No. 9/2007 are hereby quashed and set aside and consequently the process against the petitioner for the offence under Section 494 and 114 of the Indian Penal Code are hereby quashed and set aside, however, the same shall be without prejudice to the rights and contention of the petitioner-original accused and other accused persons against whom the trial is pending and the learned Magistrate to proceed further with the trial against them in accordance with law and on its own merits, without, in any way, being influenced by the present order, which will be qua the petitioner-original accused no. 7 only. Rule is made absolute accordingly.
Direct service is permitted.
(M.R. SHAH, J.) siji