UKUNDA SONEKAR AND ORS. Vs. SMT. VITHABAI

JUDGEMENT

(1.) The applicants, who are the accused before the Judicial Magistrate, First Class, Katol, have under this application invoked the powers of this Court under Sec. 482 of the Code Criminal Procedure to quash criminal proceeding started against them in respect of an offence under section 494 read with Sec. 34 of the Indian Penal Code. The facts leading to the institution of the complaint are that the respondent is the wife of one Suresh Ukunda Sonekar since last nine years. Out of the said wedlock three children were born to them. Petitioner Nos. 1 and 2 are the father and the mother of the said Suresh Sonekar, whereas petitioner No. 3 is his real brother. Except petitioner No. 4, other petitioners are friends and relatives of the family. It is alleged in the complaint that the respondent was beaten mercilessly and was being illtreated by her husband Suresh. It is also alleged that the said Suresh deserted the respondent. Thereafter the said Suresh married Petitioner No. 4 Sudha on 31-10-1983 at Zilpa, Tahsil Katol, District Nagpur. Since the marriage took place during the existence of the first marriage, it is alleged that petitioner No. 4 and Suresh have committed an offence under section 494 of the Indian Penal Code and rest of the petitioners have committed the offence under section 494 read with Sec. 34 of the Indian Penal Code. After recording verification statement the Judicial Magistrate First Class took cognizance of the complaint and issued the process to all the petitioners along with accused Suresh. The present application is filed by the petitioners challenging the issuance of process by the Judicial Magistrate, First Class, Katol.

(2.) As held in Nagawwa Vs. Veeranna (AIR 1976 Supreme Court 1947) that where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused, it was submitted that there is not material on record to rope in all the petitioners for the offence under section 494 read with section 34 of the Indian Penal Code. There is substantial force in the submission made.

(3.) There can be no doubt that section 34 of the Indian Penal Code will have no application in the present case Even under section 494 of the Indian Penal Code the complaint is tenable only against Suresh. If at all the others are to be roped in, the prosecution, it could have been done under section 109 of the Indian Penal Code which prescribes punishment for abetment, if the act abetted is in consequence and where no express punishment is made for its punishment. This provision has not been invoked by the respondent in her complaint. Even the allegation of abetment is not to be found in it. Similar is the position with respect to the verification statement recorded by the judicial Magistrate, First Class, Katol. However, for proper appreciation the relevant portion is extracted below.