ANITA SUDAM AHIRE (APPLICANTS) Vs. THE STATE OF MAHARASHTRA AND ANR. (RESPONDENTS)
CRIMINAL APPLICATION NO. 1173 OF 2015
(CORAM: M. S. KARNIK, J.)
Facts: By this application under Section 482 of the Code of Criminal Procedure (hereafter referred to as “Cr.P.C.”), the challenge by the applicants is to the order dated 15/11/2007 and consequently for quashing the complaint instituted by respondent No.2 before the Court of Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai.
Issue: Whether the allegations set out in the complaint constitute offence under Section 494 read with Section 109 of the IPC?
Arguments on behalf of counsel for applicants:
Learned APP submitted that on the basis of the materials and having regard to the accusations in the complaint, the trial Court is justified in issuing the process against the applicants under Section 494 read with Section 109 of the IPC. It is submitted that applicant No.1 is the one who solemnised the second marriage and is therefore liable to be prosecuted for the offence punishable under Section 494 read with 109 of the IPC. It is submitted that the allegations set out in the complaint constitutes offence for which cognizance has been taken by the learned Magistrate. It is further submitted that on reading of the complaint as a whole and in the light of the statement on oath of the complainant, the ingredients of the alleged offence are disclosed.
Held: The court allowed the application and held that, “There is nothing on record to indicate that the second wife contracted the marriage with the husband being aware that the first marriage is subsisting. A penal statute must be strictly construed. The onus cannot be cast on the second wife to find out if the first marriage is subsisting. That is not the contemplation of Section 494 of the IPC. The only assertion in the complaint is about the husband marrying the second wife during the subsistence of the first marriage. The mere assertion of performing a second marriage, is not, in my opinion, sufficient to proceed against the applicants without there being any allegation making out a case of abetment.”
Further, the court opined that, “In my opinion, there are no specific allegations in the complaint which disclose the ingredients of the offence of abetment punishable under Section 109 of IPC, the cognizance of which is taken by the learned Magistrate. In the absence of specific allegations against these applicants in the complaint constituting the offence punishable under Section 109 of the IPC, in my view, the applicants cannot be proceeded with only for the offence under Section 494 of the IPC.”
