NILKANTHRAO VITHALRO Vs. GANGABAI SHRIPATRO

JUDGEMENT

(1.) This application for revision raises a very interesting question regarding the applicability of Sec. 403, Code of Criminal Procedure.

(2.) The facts leading to this application are in a brief compass: Petitioner No. 1 Nilkanthrao was married to the opponent Gangabai in about the year 1954. Petitioner No. 2, who also is named Gangabai, was married to one Digamber in about the year 1960 or so. During the subsistence of these two marriages and while the respective spouses of both these marriages were alive, petitioner No. 1 Nilkanthrao married petitioner No. 2 Gangabai on June 29, 1962, Digamber, who was the first husband of petitioner No. 2 Gangabai filed Criminal Case No. 60 of 1962 against the petitioners Nilkanthrao and Gangabai under Sec. 494 of the Indian Penal Code, because they had entered into a bigamous marriage while their respective spouses of their previous marriages were alive on the date of their second marriage. The respondent Gangabai, the first wife of the petitioner Nilkanthrao was not a party to that criminal case. This offence of bigamy was compounded by the complainant Digamber on Sept. 25, 1962, with the permission of the trial Court under e. 345 (2), Code of Criminal Procedure. The trial Magistrate who permitted this composition acquitted the petitioners Nilkanthrao and Gangabai of the offence of bigamy under a. 494 of the Indian Penal Code in accordance with Sec. 345 (6) of the Code of Criminal Procedure. On March 10, 1964, the respondent Gangabai filed Criminal Case No. 25 of 1964 under Sec. 494 of the Indian Penal Code against her husband Nilkanthrao and against petitioner No. 2 Gangabai on the ground that they had entered into a bigamous marriage on June 29, 1962, during the life time of their former spouses and while their former marriages were subsisting. The respondent Gangabai implicated petitioners Nos. 3 to 6 also on the ground that they had abetted this offence of bigamy. The petitioners Nilkanthrao and Gangabai applied to the trial Court for dropping the complaint of the respondent Gangabai on the ground that it was barred by Sec. 403 of the Code of Criminal Procedure because of their previous acquittal of the same offence under Sec. 345 (6) in Criminal Case No. 60 of 1962.

(3.) The learned trial Magistrate held that there was no composition of the offence with the first wife Gangabai and, therefore, the acquittal of the petitioners by virtue of Sec. 345 (6) in consequence of a composition with Digamber alone, did not debar the right of the complainant respondent to prosecute the petitioners and, therefore, the complaint ought to proceed. In that view, he rejected the application of the petitioners. While affirming the learned Magistrate's order, the learned Sessions Judge, Nanded, came to the conclusion that the same act of marriage between the petitioners Nilkanthrao and Gangabai on June 29, 1962, had resulted into two separate offences of bigamy one in regard to Digamber, the former husband of petitioner No. 2, and the other in regard to the respondent Gangabai, the former wife of the petitioner Nilkanthrao, and, therefore, the respondent Gangabai was not precluded from prosecuting the petitioners for the offence of bigamy in relation to her, despite the fact that the offence of bigamy in relation to Digamber had been compounded with Digamber and that order of composition had ended in acquittals under Sec. 345 (6) of the Code of Criminal Procedure.