IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.29471 of 2007 MAHESH CHANDRA DAS Son of Late Shiv Narayan Das resident of village Harwatishpur, Police Station Shambhu Ganj, District Banka. . . . . Petitioner. Versus THE STATE OF BIHAR & ANR For the Petitioner : Mr. Vikram Singh, Advocate For opp. party no.2 : Mr. Purushottam K. Das, Advocate For the State : Mr. Jharkhandi Upadhayay, A.P.P. ----------- 5/ 15.04.2010 Heard learned counsel for the petitioner and the State as well as informant. The petitioner has prayed for setting aside the order dated 18.04.2007 passed by Judicial Magistrate, 1st Class, Bhagalpur in Complaint case no. 444 of 1998, whereby he has taken cognizance for the offence under Sections 493 and 494 of the Indian Penal Code Counsel for the petitioner submits that even assuming the entire prosecution case to be true no case under Section 493 of the Indian Penal Code would be made out. He further submits that the complainant had earlier filed Complaint case bearing no. 166 C of 1966 / 150 of 1967 for the offence under Section 494 of the Indian Penal Code, which was compromised way back in the year, 1969. He further submits that now after 30 years, the instant complaint case has been filed under Section 494 as well as 493 of the Indian Penal Code in 1998. Counsel for the complainant submits that the case under Section 494 of Indian Penal Code was compromised, as petitioner assured to keep her well. Furthermore, a divorce suit has been filed by this petitioner in the year, 1993 in which there is admission of second marriage with Kavita Kumari. Thus, learned counsel submits that a - 2 - prima facie offence under Section 494 of Indian Penal Code is made out against him. The opposite party no.2 further submits that this court by order dated 17.08.2009 directed the petitioner to pay a sum of Rs. 1000/- per month to opposite party no.2 during the pendency of this application from the month of August, 2009 and in case such payment is not made on month to month basis by every 10th day of successive month, the stay of further proceedings in the court below shall stand automatically vacated. Counsel for the petitioner submits that in fact he appeared in the court with a sum of Rs. 4000/- which the complainant did not accept the same. Heard counsel for the parties. The perusal of the records does not disclose an offence under Section 493 of Indian Penal Code. Section 493 of Indian Penal Code relates to cohabitation caused by a man deceitfully inducing a belief of lawful marriage. No allegation has been made by any woman that petitioner has cohabited deceitfully with her, much less by his alleged 2nd wife. Thus, the prosecution under Section 493 of Indian Penal Code is not sustainable and is hereby quashed. So far as Section 194 of Indian Penal Code is concerned, an offence would be made out, if a husband and wife contracts marriage with another person during the subsistence of the marriage, save and except saved byelaws. Counsel for the complainant submits that the petitioner has admitted in his divorce case filed in the year, 1993 that he has contracted marriage with one Kavita Kumari. Thus, prima facie, an - 3 - offence under Section 494 of Indian Penal Code would be made out. It is relevant to state here that for the said offence, a case under Section 494 of Indian Penal Code was filed way back in the year 1966, bearing Complaint case no. 166 C of 1966 / 150 of 1967. The aforesaid case was disposed of in terms of compromise vide order dated 31.03.1967. The matter has been raked up after 30 years and by this time it is about 43 years since the matter was compromised on the issues. The complainant has reopened a stale prosecution, which was compromised in 1967. In allowing such prosecution to continue after 43 years would be an abuse of process of court. It would be more appropriate, if the complainant had pursued her remedy for maintenance. The criminal prosecution under Section 494 of Indian Penal Code is, as such quashed. The petitioner would deposit the arrears of maintenance as directed earlier on 17.08.2009 by this Court in the court below within a period of three months from today. The learned Magistrate, who has been in seisin of the case, would ensure that the money so deposited is handed over to the complainant. Till the time, the amount is not paid, the complainant would be entitled to the payment of the aforesaid amount of Rs. 1000/- per month. With the aforesaid direction, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)