VINOD Vs. SUNITA

JUDGEMENT

(1.) Admitted. Heard finally by consent of parties. Heard Mr. H.P. Lingayat, learned counsel for applicants; Mr. J D. Bastian, learned counsel for respondent No. 1 and Mr. J.B. Jaiswal, learned Addl. P.P. for respondent No. 2-State. The applicants have challenged the order passed by the learned 15th Judicial Magistrate, First Class, Nagpur on 7th December, 2011 asking the applicants to answer the charge for offence punishable u/s. 494 of the Indian Penal Code on the complaint made by non-applicant No. 1-Sunita Vinod Choudhary. The applicants have moved this Court on the ground that a decree of divorce was obtained by the applicant No. 1-Vinod Choudhary from the Family Court against the non-applicant No. 1 on 9th September, 2009. It is further submitted on behalf of the applicants that non-applicant No. 1 in her statement on oath before the learned Magistrate has stated that the applicant No. 1 had entered into second marriage on 1st February, 2010. It is, therefore, contended that there is no material to proceed against the applicants for the offence punishable u/s. 494 of the Indian Penal Code.

(2.) Since the offence punishable u/s. 494 of the IPC is triable as a warrant case and is instituted upon a private complaint, it will be governed by Section 245 of the Cr.P.C. The applicants, therefore, had to take recourse to Section 245(2) of the Cr.P.C. if they want the learned Magistrate to consider their prayer for discharge before recording the evidence of respondent/non-applicant No. 1. The applicants have another opportunity of seeking relief from the Magistrate u/s 245(1) if the evidence of the complainant and her witnesses is recorded. In the circumstances this Application u/s 482 of the Cr.P.C. is not maintainable and is dismissed. Ad-interim order, if any, stands vacated.