Smt. Saroj Choudhary vs Smt. Mamta Bai

Heard on the question of admission.

The applicant has filed this petition under Section 482 of the Code of Criminal Procedure being aggrieved by order dated 24.7.2019 passed by the learned Additional Sessions Judge, Pawai, District-Panna in Criminal Revision No.22/2019 dismissing the revision filed by the applicant by affirming the order dated 31.1.2019 passed by the Judicial Magistrate First Class, Pawai, District-Panna in criminal case No.40/2019, whereby cognizance was taken against the applicant for offence under Section 494 of IPC.

The facts giving rise to the filing of the present petition, in short, are that, the respondent has lodged a complaint that she is legally wedded wife of co-accused Bhagwat, having two children out of that wed-lock. Later on, Bhagwat started harassing her, therefore, due to strained relations with her husband she started living separately. Thereafter, Bhagwat solemnized remarriage with the applicant Smt. Saroj Choudhary and kept her as his second wife.

Learned counsel for the applicant submits that the applicant was married with Jitendra Choudhary, having one child out of that wed-lock. The applicant has not performed marriage with Bhagwat, husband of the respondent. No ingredient of bigamy is available against the applicant and therefore, no offence under Section 494 of IPC is made out against the applicant on the basis of complaint lodged by the respondent. Therefore, it is prayed that this petition under Section 482 of the Cr.P.C. be allowed and the applicant be discharged from the charge of offence under Section 494 of IPC.

Learned counsel for the applicant has placed reliance on the judgment o f the Allahabad High Court rendered in the case of Munir Vs. King- Emperor, AIR 1926 All 189 in support of her submissions.

Learned counsel for the respondent opposes the application on the ground that the applicant has solemnized marriage with Bhagwat knowing fully well that the respondent is legally wedded wife of Bhagwat and is alive. Therefore, both the Courts below have not committed any error in passing the impugned orders.

Heard the learned counsel for the parties and perused the petition as well as documents filed along with it, in the light of Section 494 of IPC, which reads as under:-

"494. Marrying again during lifetime of husband or wife.-Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

From a bare perusal of Section 494 of IPC, firstly there must be a living husband or wife of any person and secondly he contracted another marriage during lifetime of his or her spouse. If both these ingredients are established from the evidence available on record, the Court can proceed to take cognizance under Section 190(1)(a) of the Cr.P.C.

In the present case, the respondent has filed a complaint against the applicant and other co-accused persons under Section 200 of the Cr.P.C. and recorded her evidence and produced other witnesses to substantiate the allegations made in the complaint. Complainant Mamta Choudhary (PW-1) in her statement has categorically stated that she is legally married wife of co-accused Bhagwat and due to strained relations between them, she is living separately along with her children. The applicant is also a married lady and she contracted second marriage with Bhagwat and out of that wed-lock, a child was born on 16.8.2018. Gokal (PW-2) has also stated that the applicant is working as Aaganwadi worker and she solemnized marriage with Bhagwat Choudhary, who is husband of the respondent, and out of that wed-lock, the Applicant is having a child. This witness has categorically stated that the said marriage was solemnized on 16.3.2016. Darshan Yadav (PW-3) has stated that marriage of the applicant and co-accused Bhagwat was performed in a temple of Lord Shankar at Bandakpur. He has categorically stated that when he reached there, Jaymala ceremony was going on, then he narrated this fact to the respondent and her father. Kusum Lal (PW-4) has also supported the fact that the applicant solemnized second marriage with Bhagwat, husband of the respondent.

For taking cognizance of any offence, meticulous appreciation of evidence is not required. If there is prima facie evidence available on record to establish the ingredients of any offence then, Court can proceed for taking cognizance against the person.

In the present case, the applicant has categorically stated in the petition that she is married wife of Jitendra Choudhary. If applicant is already married and if there is evidence available on record to reveal the fact that the applicant is having a living spouse and she remarried with the husband of the respondent, prima facie ingredients of offence under Section 494 of IPC are made out.

At the stage of taking cognizance, the Court is not expected to discuss the defence evidence adduced by the accused. While exercising inherent powers under Section 482 of the Cr.P.C., this Court cannot appreciate the evidence like the trial Court. In such circumstances, this Court is of the view that when there is prima facie evidence available on record to establish the ingredients of offence, trial Court can take cognizance and proceed further.

In the case of Munir (supra) husband made a complaint alleging therein that his wife had been kidnapped and kept in wrongful confinement by Munir and he was having illicit connection with her wife against her will. However, it is no where mentioned that Munir performed marriage/Nikah with wife of the complainant. In such circumstances, the Court opined that no offence under Section 494 of IPC is made out. However, the factual matrix of the present case is totally different.

In view of the aforesaid, this Court is of the considered view that prima facie sufficient evidence is available on record for taking cognizance against the applicant for offence under Section 494 of IPC. No illegality of perversity is visible in the impugned orders passed by both the Courts below, therefore, the present petition under Section 482 of the Cr.P.C. deserves to be dismissed and consequently, it is hereby dismissed.

Pending interlocutory applications (if any) shall also stand disposed of. No order as to cost.