Criminal Application (Apl) No. 965 of 2019.

13th February 2020

Petitioner Counsel: Shri S. V. Sirpurkar
Respondent Counsel: Shri T. A. Mirza, Smt. Meena Hiwase
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973

HeadLine : Essential requirement u/S 494 IPC is that the person committing the offence must have married another woman or man during subsistence of his or her first marriage.

Section :
Section 34 Indian Penal Code, 1860 Section 494 Indian Penal Code, 1860 Section 498A Indian Penal Code, 1860 Section 198A Code of Criminal Procedure, 1973 Section 482 Code of Criminal Procedure, 1973

Cases Cited :
Para 6: Ushaben Vs. Kishorbhai Chunilal Talpada, reported in (2012) 6 SCC 353
Para 8: U. Suvetha Vs. State by Inspector of Police and Anr., reported in (2009) 6 SCC 757
Para 8: Sangita D/o Natthulal Labhane Vs. Yashodhara W/o Krishna Bhitre and Anr., reported in (2008) 5 Mh.L.J. 820

JUDGEMENT

Sunil B. Shukre, J.

1. Heard. Rule. Heard forthwith by consent of the learned counsel for the parties.

2. By this application, the applicant is seeking quashing of the proceedings bearing Reg. Cri. Case No.93/2018 instituted against this applicant and some other persons in Crime No.649/2017 for offences punishable under Sections 498A and 494 read with Section 34 of the Indian Penal Code at Police Station, Umred, District Nagpur on the basis of complaint filed by respondent No.2,.

3. Shri S. V. Sirpurkar, learned counsel for the applicant submits that none of the offences are constituted by accepting the entire contents of the complaint filed by respondent No.2 against the applicant. This has been disagreed to by learned counsel for the respondent No.2.

4. Shri T. A. Mirza, learned APP submits that the ingredients necessary for constituting the offences of cruelty and marrying again during lifetime of husband or wife respectively punishable under Section 498A and 494 of the Indian Penal Code are a matter of record.

5. In this case, it is not in dispute that the applicant is a woman who has married for the first time with Jitendra, the husband of the respondent No.2. Thus, from the view point of the applicant, this is not a case wherein she could be alleged to have married again during lifetime of her husband. The essential requirement of Section 494 of the Indian Penal Code is that the person committing the offence must have married another woman or man during subsistence of his or her first marriage. Insofar as applicant is concerned, this is not so although, case of Jitendra appears to be different. Therefore, offence punishable under Section 494 of the Indian Penal Code, by no stretch of imagination could be said to be constituted in the present case as against this applicant.

6. Learned counsel for respondent No.2 has relied upon the judgment of Hon’ble Apex Court delivered in the case of Ushaben Vs. Kishorbhai Chunilal Talpada, reported in (2012) 6 SCC 353 in order to support her argument. The case of Ushaben was on the question of the locus of the complainant. In that case question was who qualified to be an aggrieved person within the meaning of Section 198A of Code of Criminal Procedure, and thus could file a complaint alleging commission of the offence punishable under Section 494 of the Indian Penal Code. This is not the issue involved in the present case. Therefore, said case would be no assistance to the respondent No.2.

7. Now, if we go through the complaint and other material available on record, we would find that there is not even a whisper of allegation of cruelty made against the applicant. Only allegation against her is that she performed marriage with husband of respondent No.2 during subsistence of her marriage with Jitendra. About this allegation, we have already found that no offence punishable under Section 494 of the Indian Penal Code is constituted. Therefore, we are of the view that no case whatsoever has been made out against the applicant even for an offence punishable under Section 498A of the Indian Penal Code.

8. Shri S. V. Sirpurkar, learned counsel for the applicant has also relied upon the cases of U. Suvetha Vs. State by Inspector of Police and Anr., reported in (2009) 6 SCC 757 and Sangita D/o Natthulal Labhane Vs. Yashodhara W/o Krishna Bhitre and Anr., reported in (2008) 5 Mh.L.J. 820 to draw support to his argument that offence of cruelty could be registered only against a legally married husband or his relatives and second wife is not a relative of husband. We would only say that as have found earlier that no case is made out against the applicant for an offence under Section 498A of Indian Penal Code, it is not necessary to examine the issue by referring to these judgments and we leave the issue open to be decided in appropriate proceedings.

9. In view of above, we find that this is a fit case for invoking power of this Court under Section 482 of the Code of Criminal Procedure to meet the ends of justice and to prevent abuse of process of law. Accordingly, the application is allowed in terms of prayer clause (1).
Rule is made absolute accordingly. No costs.

Decision : Application allowed.