Bombay High Court: A Division Bench of Madhav J. Jamdar and Sunil B. Shukre, JJ., while invoking its power under Section 482 of Code of Criminal Procedure, 1973 observed that,
“Essential requirement of Section 494 of Penal Code, 1860 is that the person committing the offence must have married another woman or man during subsistence of his or her first marriage.”
Applicant sought quashing of proceedings for offences punishable under Sections 498A and 494 read with Section 34 of Penal Code, 1860 at a Police Station, Nagpur on the basis of the complaint filed by Respondent 2.
Counsel for the applicant, S.V. Sirpurkar submitted that none of the above-stated offences can be constituted by accepting the entire contents of the complaint filed by respondent 2.
Additional public Prosecutor, T.Z. Mirza submitted that ingredients necessary for constituting the offences of cruelty and marrying again during lifetime of the husband or wife respectively punishable under Sections 498A and 494 of IPC are a matter of record.
Point of observation in the present case is that the dispute is not that applicant is a woman who had married for the first time with the husband of respondent 2. From the viewpoint of the applicant, this is not a case wherein she could be alleged to have married again during the lifetime of her husband. Therefore, offence under Section 494 IPC could not be said to be constituted in the present case as against the applicant.
High Court stated that on perusal of the complaint and material available, it is to be noted that
“…there is not even a whisper of allegation of cruelty made against the applicant.”
The allegation that can be found is that she performed marriage with the husband of respondent 2 during the subsistence of her marriage with Jitendra and for the said allegation no offence punishable under Section 494 of IPC can be constituted.
Hence, the bench considered the present case to be appropriate to invoke its powers under Section 482 of CrPC to prevent abuse of process of law. [Rekha v. State of Maharashtra, 2020 SCC OnLine Bom 291, decided on 13-02-2020]
