The magistrate must apply proper scrutiny and findings before issuing process; mere witness statements are insufficient for triggering criminal proceedings.

ORAL JUDGMENT :-

1. Heard learned advocates for the parties. Taken up for final disposal at the stage of admission.

2. The petitioners/accused persons against whom an order of issuance of process is passed are before this Court. Against the petitioner No. 1 the process is issued for the offence punishable under Section 494 of the Indian Penal Code (for short “I.P.C.”) and against petitioner Nos. 2 to 15 the process is issued for the offence punishable under Section 109 of the I.P.C. by order dated 15.09.2012 in R.C.C. No. 109/2011 by the learned J.M.F.C., Kandhar. There is long history before passing of this order. Initially, respondent No. 2-wife filed complaint in the Court of learned J.M.F.C., Kandhar against the petitioners and one Pushpa @ Pinki w/o Sunil Gawalwad for the offence punishable under Section 494 of the I.P.C. Accused No. 2 - Pushpa who is not before this Court and it is alleged that there is no such girl by name Pushpa Sunil Gawalwad. For the accused Nos. 3 to 16 process is issued for the offence punishable under Section 109 of the I.P.C. The learned Magistrate by order dated 27.07.2011 had issued process. However, the said order came to be challenged by filing revision bearing Criminal Revision Application No. 21/2011 in the Court of learned Additional Sessions Judge, Kandhar on various grounds including that no case is made out to issue process. The learned Additional Sessions Judge, Kandhar by judgment and order dated 17.10.2011 was pleased to partly allow the revision application holding that the learned Magistrate has not taken sufficient care before passing the order. The learned Magistrate was directed to pass appropriate legal order by following provisions of law. It was on the ground that only the complainant was examined by the learned Magistrate. The persons who have directly witnessed the offence were not examined.

3. The order of remand was challenged by the petitioners by filing Criminal Writ Petition No. 1008/2011 in this Court. This Court has considered only the aspect of procedure followed by the learned Magistrate while issuing process. This Court found that no error is committed by the learned Sessions Judge while remanding the matter and disposed off the criminal writ petition by its order dated 08.01.2013.

4. It is thereafter the learned Magistrate again examined the respondent No. 2 and other two witnesses namely Yadav Nivrutti Baswante and Digambar Nagorao Nampalle who allegedly have witnessed the incident of second marriage. After examining these witnesses the learned Magistrate issued process by order dated 15.09.2012 against the accused persons. The petitioners again filed Criminal Revision Application No. 40/2012 in the Court of learned Additional Sessions Judge, Kandhar. The learned Additional Sessions Judge found that no ground is made out to interfere with the order and has dismissed the criminal revision application by its judgment and order dated 17.08.2018. It is specifically observed that, all the grounds raised in the criminal revision application are the grounds raised by way of defence including the plea of alibi that was raised by petitioner No. 3 and no defence can be considered at this stage. It is thus now the petitioners have filed this petition before this Court.

5. The main contention of the learned advocate for the petitioners is that now even in the second order the learned Magistrate has not followed the proper procedure. The order of issuance of process does not show application of mind. The learned J.MF.C. has not discussed as to how ingredients of sections are attracted and how the offence is made out. He further submits that, the place where the marriage