High Court · 2025

Legal Reasoning

appln-1796-2024 and 1797-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.1796 OF 2024 Varsha Avinash Chavhan @ Varsha Dadasaheb Chatale.. ApplicantVersus1.The State of MaharashtraThrough Police Inspector,Nagar Taluka Police Station,Tq. And Dist. Ahmednagar.2.Rohini w/o Avinash Chavhan.. Respondents…WITHCRIMINAL APPLICATION 1797 OF 20241.Ashok s/o Ramlal Chavhan2.Sangita w/o Ashok Chavhan3.Ankit s/o Ashok Chavhan4.Ramlal s/o Yadavrao Chavhan.. ApplicantsVersus1.The State of MaharashtraThrough Police Inspector,Nagar Taluka Police Station,Tq. And Dist. Ahmednagar.2.Rohini w/o Avinash Chavhan.. Respondents…Ms. Pratiksha C. Kale, Advocate for the applicants in both the applications.Mr. A. M. Phule, APP for respondent No.1/State in both the applications.Mr. N. C. Garud, Advocate for respondent No.2 in both the applications.... CORAM : SMT. VIBHA KANKANWADI & SUSHIL M. GHODESWAR, JJ.DATE : 20 AUGUST 2025[1] appln-1796-2024 and 1797-2024.odtORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present applications have been filed initially for quashing the FIRvide Crime No.157 of 2024 dated 28.02.2024 registered with NagarTaluka Police Station, District Ahmednagar and later on, by way ofamendment, for quashing the proceedings in Regular Criminal CaseNo.1110 of 2024 pending before the learned Judicial Magistrate FirstClass, Ahmednagar for the offences punishable under Sections 498-A,494, 323, 504, 506 read with Section 34 of Indian Penal Code.2.Heard learned Advocate Ms. Pratiksha C. Kale for the applicants,learned APP Mr. A. M. Phule for respondent No.1/State and learnedAdvocate Mr. N. C. Garud for respondent No.2.3.Learned Advocate for the applicants submits that the applicant inCriminal Application No.1796 of 2024 is stated to be the second wife oforiginal accused No.1. She cannot come within the definition of relativeof the husband as contemplated under Section 498-A of Indian PenalCode. Further, the prosecution has also invoked Section 494 of IndianPenal Code. In that case also the alleged second wife cannot be madeas an accused. The said Section is non cognizable and as per Section198 of the Code of Criminal Procedure, the cognizance of such offencecannot be taken except upon a complaint made by same personaggrieved by the offence. The other applicants i.e. applicants in Criminal[2] appln-1796-2024 and 1797-2024.odtApplication No.1797 of 2024 are the brother-in-law and applicant No.4 isthe father-in-law of respondent No.2. Applicant No.2 is the wife ofapplicant No.1 and applicant No.3 is the son of applicant Nos.1 and 2..If we peruse the allegations in the FIR, she states that she was allegedlydriven out of the house in 2007 and thereafter, she started residing withher parents. The FIR has been lodged on 28.02.2024. Therefore, foroffences under Sections 498-A, 323, 504, 506 of Indian Penal Code, theFIR is beyond the period of limitation. In the FIR it is pleaded that in2013, original accused No.1 performed marriage with applicant inCriminal Application No.1796 of 2024 and the original accused No.1 andalleged second wife have begotten son on 05.05.2014. Still after somany years i.e. after about 10 years, the present FIR has been lodgedwhich is nothing but with ulterior motive. In respect of Section 494 ofIndian Penal Code, the allegation against the applicants are that theyhave helped original accused No.1 for marriage with the alleged secondwife. However, in the entire charge-sheet there is no material to supportthese allegations. Under such circumstance, the trial as against all theapplicants would be a futile exercise. No offence even at the prima faciestage has been made out and, therefore, both the applications deserveto be allowed.4.The applications have been resisted by learned APP as well aslearned Advocate for respondent No.2. It is stated that respondent No.2[3] appln-1796-2024 and 1797-2024.odthad made specific allegations in the FIR against all the applicants and inCriminal Miscellaneous Application No.146 of 2015 filed with JudicialMagistrate First Class, Ahmednagar under Section 12 of Protection ofWomen from Domestic Violence Act, 2005, it has been held that therespondents therein i.e. including the present applicant Nos.1, 2 and 4had committed domestic violence against respondent No.2. There isevidence regarding original accused No.1 marrying with the applicant inCriminal Application No.1796 of 2024, as they have also begotten son on05.05.2014, thereby prima facie offence under Section 494 of IndianPenal Code is also attracted. The investigation for the offence underSection 494 of Indian Penal Code can be made in a matter whereoffence under Section 498-A of Indian Penal Code is alleged. Taking intoconsideration Section 498-A and 494 of Indian Penal Code, there will notbe any question of limitation in view of Section 468(3) of the Code ofCriminal Procedure, which provides that the period of limitation in whichoffences may be tried together should be determined with reference tothe offence which is punishable with the more severe punishment or, asthe case may be, the most sever punishment. Here, the most severepunishment is under Section 494 of Indian Penal Code i.e. imprisonmentfor either description for a term, which may extend upto seven yearsand, therefore, there is no bar under Section 468 of the Code of CriminalProcedure. Since the charge-sheet has been produced, let there be[4] appln-1796-2024 and 1797-2024.odttrial.5.At the outset, certainly, the legal position broadly that can bestated is that the offence under Section 494 of Indian Penal Code thoughcognizable in nature, if it is along with Section 498-A of Indian PenalCode, then in spite of there being a bar under Section 198 of the Code ofCriminal Procedure, yet there can be investigation in respect of the sameby the police officer. This position of law has been cleared in Ushabenvs. Kishorbhai Chunilal Talpada and Others, [2012 ALL MR (Cri) 2088(S.C.)], and the decision of the Single Bench of this Court in Hiraben w/o.Ganesh Choudhari Vs. The State of Maharashtra & Ors, [2015 ALL MRCri. 2380]. However, here, in this case, the question is whether theinformant, who had knowledge about the alleged second marriage whenshe had filed Criminal Miscellaneous Application No.146 of 2015 on31.01.2015, could have kept quiet till 28.02.2024 to lodge the reporteither for Section 498-A or Section 494 of Indian Penal Code ortogether. Perusal of the judgment in Criminal Miscellaneous ApplicationNo.146 of 2015 would show that respondent No.2 had pleaded thatrecently that means just prior to 31.01.2015, she had come to now thataccused No.1 i.e. husband has performed second marriage, then in thepresent FIR there ought to have been explanation for the delay. Merelybecause there is no limitation independently for lodging the complaintunder Section 2(d) of the Code of Criminal Procedure for the offence[5] appln-1796-2024 and 1797-2024.odtpunishable under Section 494 of Indian Penal Code, respondent No.2cannot utilize the same for making allegations in respect of Section498-A of Indian Penal Code, which were time barred. As per the contentsof the FIR, the informant and her daughter were driven out of the housein 2007 and since then she had taken the shelter with her parents.Intentionally, she has not stated when she filed the CriminalMiscellaneous Application No.146 of 2015 under the Domestic Violenceproceedings, but then refers that in the same matter the maintenancewas granted in 2018 to herself and her daughter. The second questionwould then be that since 2018 then why she waited for lodging the FIRtill 28.02.2024. No other incident has taken place after 2018 till28.02.2024 which will prompt her to lodge the FIR. There are no acts ofharassment/cruelty committed by any of the applicants. Even the FIRstates that the occurrence of offence is between 24.04.2002 to24.04.2007. The marriage between accused No.1 and alleged secondwife cannot be taken as continuous act of cruelty, because there shouldbe some instances with which then there was confrontation between theapplicants and respondent No.2. No overt act is attributed to the presentapplicants and secondly, the alleged second wife i.e. the applicant inCriminal Application No.1796 of 2024 cannot be termed as ‘relative ofthe husband’ for bringing her under the ambit of Section 498-A of IndianPenal Code. We would like to reproduce Section 494 of Indian Penal[6] appln-1796-2024 and 1797-2024.odtCode, which reads thus :-494. Marrying again during lifetime of husband or wife. —Whoever, having a husband or wife living, marries in any case inwhich such marriage is void by reason of its taking place duringthe life of such husband or wife, shall be punished withimprisonment of either description for a term which may extendto seven years, and shall also be liable to fine.Thus, perusal of this provision would show that it is restricted tothe person, who marries during the lifetime of husband or wife and not tothe person with whom the marriage had taken place. Another fact to benoted is that in the entire charge-sheet there is no evidence to show thatthe marriage has been performed between accused No.1 and saidalleged second wife. No doubt there is birth certificate of the son andalso some documents regarding acquisition of property by said applicantand also gift deed by applicant No.4 in favour of the son of allegedsecond wife and stating that he is the son of his son, yet Section 494 ofIndian Penal Code requires the proof that the marriage rituals have beenundergone or there was another mode of so called marriage of validmarriage. On any ground i.e. since there is inordinate delay in lodgingthe FIR for the offence under Section 494 of Indian Penal Code, thoughclearly the note of the same was with respondent No.2 on 31.01.2015and as regards offence under Section 498-A of Indian Penal Code, shewas driven out of the house in 2007, the FIR on 28.02.2024 would be[7] appln-1796-2024 and 1797-2024.odtbarred by Section 468 of the Code of Criminal Procedure. Certainly, itwould be an abuse of process of law, if the applicants are asked to facethe trial. Hence, the following order :-ORDERI)Both the applications stand allowed.II)The FIR vide Crime No.157 of 2024 dated 28.02.2024registered with Nagar Taluka Police Station, District Ahmednagaras well as the proceedings in Regular Criminal Case No.1110 of2024 pending before the learned Judicial Magistrate First Class,Ahmednagar for the offences punishable under Sections 498-A,494, 323, 504, 506 read with Section 34 of Indian Penal Code,stand quashed and set aside as against the present applicants inboth the applications. [ SUSHIL M. GHODESWAR ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGEscm[8]