Specific allegations are required to establish the offence of abetment, and penal statutes must be strictly construed.

JUDGMENT :

1. By this application under Section 482 of the Code of Criminal Procedure (hereafter referred to as “Cr.P.C.”), the challenge by the applicants is to the order dated 15/11/2007 and consequently for quashing the complaint instituted by respondent No.2 before the Court of Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai.

2. The facts of the case, in brief, are as under :

(a) Applicant No.1 is the second wife of respondent No.3. Applicant No.2 is the father of applicant No.1. It is alleged that respondent No.3 (hereafter referred to as “husband”) married respondent No.2 (hereafter referred to as “first wife”) on 15/03/1990. Three daughters were born from the wedlock. The first wife was ill-treated by the husband and therefore, she left the matrimonial home at Nashik on 10/07/2005 whereafter she started residing in Mumbai along with her father. The first wife came to know that the husband had, during the subsistence of their marriage, solemnised second marriage sometime on 09/10/2005 with applicant No.1 (hereafter referred to as “second wife”). The complaint was, therefore, filed by the first wife before the trial Court in October 2007 on the accusation that the applicants and other accused have committed offence punishable under Section 494 read with Section 114 of the Indian Penal Code (hereafter referred as “IPC”). The complaint was duly verified on 23/10/2007 by the learned Magistrate.

(b) On perusal of the complaint and the statement of the complainant, the trial Court was of the opinion that prima facie a case is made out and hence issued process under Section 494 read with Section 109 of the IPC against the applicant and the co-accused.

3. I have heard the learned counsel for the applicants and learned APP for the prosecution. No one appeared for the contesting respondents though they are duly served.

4. Learned APP submitted that on the basis of the materials and having regard to the accusations in the complaint, the trial Court is justified in issuing the process against the applicants under Section 494 read with Section 109 of the IPC. It is submitted that applicant No.1 is the one who solemnised the second marriage and is therefore liable to be prosecuted for the offence punishable under Section 494 read with 109 of the IPC. It is submitted that the allegations set out in the complaint constitutes offence for which cognizance has been taken by the learned Magistrate. It is further submitted that on reading of the complaint as a whole and in the light of the statement on oath of the complainant, the ingredients of the alleged offence are disclosed.

5. I have carefully perused the complaint and also the verification statement of the complainant. Perusal of the complaint indicates that the husband solemnised the second marriage with applicant No.1 during the subsistence of his first marriage with the complainant. It is alleged that the husband ill-treated the complainant and, therefore, she was forced to move out of the matrimonial home along with her children. It is alleged that when the complainant came to know that the husband had married applicant No.1, the complaint came to be filed.

6. The question is whether the allegations set out in the complaint constitute offence under Section 494 read with Section 109 of the IPC of which cognizance is taken by the learned Magistrate qua the applicants.

7. In answer to this question, it would be pertinent to refer to the relevant provision in Chapter 5 of the IPC dealing with ‘abetment’. Section 107 of the IPC deals with ‘Abetment of a thing’, reading thus :

“A person abets the doing of a thing, who—

First.—Instigates any person to do that thing; or

Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.—A pers