The main legal point established in the judgment is that mere presence at the time of the second marriage and vague allegations of facilitating the marriage were not sufficient to attract criminal liability for the offence of bigamy under Section 494 of the IPC.

JUDGMENT :

1. By way of this application, under Section 482 of the Cr.P.C, the applicants – original accused Nos. 7 to 10, seek to invoke inherent powers of this Court praying for quashment of proceeding of private complaint filed by respondent no. 2 bearing Criminal Case No. 3397 of 2015, for the offence punishable under Section 494 of the IPC.

2. Facts and circumstances giving rise to file the present application are that, the respondent no.2 married to accused no.1 Popatbhai @ Kesharbhai Desai. According to say of the respondent no.2, during the subsistence of her marriage, the accused no. 1 contracted a second marriage with accused no. 7 Mayaben and same was performed on 08.09.2015. She came to know about the second marriage through one Kamlesh Ranabhai, who was present at the time of second marriage ceremony and according to the input given by the witness Kamleshbhai, the accused have facilitated the solemnization of second marriage and were present at the time of marriage. The accused no. 7 is the person with whom the second marriage was performed, whereas, the accused nos. 8, 9 and 10 are the father, mother and brother of the second wife accused no. 7. It is alleged that, the accused have abetted the offence of bigamy.

3. The respondent no. 2 Kamlaben Desai, filed a private complaint under Section 494 of the IPC against in all 10 persons including the husband and his family members, which came to be registered as Inquiry No. 105 of 2015. The Court of Additional Judicial Magistrate, Patan, vide order dated 08.12.2015, arrived at the conclusion that, there are sufficient grounds or proceedings against the accused and accordingly, after taking cognizance of the offence, issued process under Section 494 and 114 of IPC.

4. Aggrieved with the order of issuance of the process, taking cognizance of the offence of the bigamy, the applicants original accused nos. 7 to 10 have preferred the instant application, inter-alia stating that, the allegations in the complaint do not constitute a cognizable offence and therefore, the proceedings of private complaint is required to be quashed as it is an abuse of process of law and court.

5. This Court has heard learned counsel Mr. Jit Patel, appearing for and on behalf of the applicants, Mr. Harisinh Thakore, learned advocate for the original complainant respondent no. 2 and Mr. L.B. Dabhi, learned State Counsel for the respondent No. 1 State.

6. Mr. Jit Patel, learned advocate would submit that, the allegations against the applicant no. 1 Mayaben, contracting marriage with accused no. 1 Popatbhai are totally false and as such, she never entered into marriage relationship nor cohabited in any manner with the accused no.1 and as such, there is no evidence or material to establish the facts of second marriage solemnized between the parties. He further submitted that, there is no prima-facie case for issuing process against the accused. The trial Court while taking cognizance of the offence, merely relied on the statement of respondent no. 2, whose relationship with the accused no. 1 was not cordial and matrimonial dispute exists between the parties. In such circumstances, the learned trial Court should have insisted upon the informant no.2 to examine the eye-witness one Kamleshbhai, so that, court may come to conclusion that, prima-facie case of bigamy made out or not.

7. Mr. Jit Patel, learned counsel for the applicants submitted that the husband accused no. 1 against whom serious allegations being made is passed away during the proceedings of the case. The applicants have been charged for abetting the offence of bigamy and merely their presence at the second marriage and vague allegation is made in the complaint that, they had facilitated in performing the second marriage would not suffice to attract Section 494 of the IPC. In support of this contention, he relied on the case of Amitkumar Brahmbhatt Vs. State of Gujarat, (1993) 1 GLH 668, to submit that, mere presence at the time of second marria