IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.22941 of 2008 1. Dharmendra Kumar Singh Son of Nageshwar Prasad Singh. 2. Nageshwar Prasad Singh Son of late Ram Ishwar Singh. 3. Sunaina Devi Wife of Nageshwar Prasad Singh. 4. Rekha Devi Wife of Dharmendra Kumar Singh. All resident of Village Khopi, Police Station Jandaha, District- Vaishali. 5. Aarti Devi Wife of Krishna Singh 6. Krishna Singh @ Krishna Kumar Singh Son of late Yogendra Singh. Both resident of Mohalla Paswan Chowk Hajipur, Police Station Ayoudyogik Nagar, Hajipur, District Vaishali. 7. Pankaj Kumar Singh Son of Shivji Singh @ Bhajju Singh, resident of Village- Rambhadra, Police Station Nagar, Hajipur, District- Vaishali. Versus 1. The State of Bihar 2. Chanda Devi (Informant) daughter of Sukhal Singh divorced wife of Dharmendra Kumar Singh (Petitioner no. 1), resident of Village Choti Marai, Police Station- Hajipur Nagar, District- Vaishali. ---------------------------------- For the Petitioners: - Dhananjay Kumar, Advocate. Sunil Prasad, Advocate. For the State: - Sri Jharkhandi Upadhyay, APP. -------------------------- 7. 19.12.2011 Heard learned counsel for the petitioners and learned A.P.P. for the State. In view of the order impugned having been passed by the Court below on the petition filed for discharge on behalf of petitioner no. 1, learned counsel for the petitioners submits that the present application be considered as having been filed by petitioner no. 1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed for 2 quashing of the order dated 14.5.2008 passed in G.R. No. 3213 of 2004 (T.R. No. 1251 of 2008) by the Judicial Magistrate, 1st Class Hajipur by which the petition filed under Section 239 of the Cr.P.C. for discharge has been rejected. The brief facts of the case are as under. The opposite party no. 2 filed a complaint case before the Chief Judicial Magistrate, Vaishali being Complaint Case No. 2173 of 2004 against the petitioners. The petitioner no.1 was accused no. 1 described as husband of the complainant. The said complaint was sent to the police for investigation and resulted in institution of Jandaha P.S. Case No.108 of 2004 dated 14.10.2004. The date of occurrence was alleged to be from the year 1995 till date. Allegations were made for offences punishable under Sections 323, 498A, 494, 420, 120B, 504/34 of the Indian Penal Code. It appears that the F.I.R. was lodged under Sections 498 (A), 323/34 of the Indian Penal Code and finally after investigation chargesheet was submitted on 30.6.2005 under Section 494 of the I.P.C. In the said chargesheet it is stated that the same was being submitted on the basis of investigation done till that date. Being aggrieved by the same the petitioners preferred application under Section 239 of the Cr.P.C. which has been rejected by the impugned order dated 14.5.2008. 3 Learned counsel for the petitioner submits that though the complaint petition discloses demand of dowry, assault etc. but the police have rightly found all these allegations untrue. As far as Section 494 is concerned, learned counsel submits that in Matrimonial Suit No. 387 of 1997 filed by petitioner no. 1 against the complainant who was then his wife, the District Judge, Howrah had allowed the suit and granted decree of divorce in favour of petitioner no. 1 on 1.3.1999. Learned counsel submits that during course of investigation it has come that the petitioner married for the second time sometime in the year 2002 and thus learned counsel submits that the same being much after the decree of divorce, the petitioner cannot be charged for offence under Section 494 of the Indian Penal Code. Though notice had been issued to opposite party no. 2 and validly served but nobody appears on her behalf when the case is taken up today. The case diary has also been called from the Court below which is on record. Learned A.P.P. for the State submits that though it is correct to say that Section 494 shall apply only when a person marries during the lifetime of a living spouse but in the present case the relevant dates are not readily available so to say whether the Court has rightly proceeded to take cognizance under Section 494 of the Indian Penal Code. 4 Upon consideration of the facts and circumstances of this case, this Court finds substance in the submission of learned counsel for the petitioners. Section 494 of the Indian Penal Code is applicable only when a person marries for a second time during the lifetime of his spouse. As far as the matter with regard to the relevant dates are concerned from the chargesheet submitted by the police in the year 2005 itself it is clear that petitioner no. 1 is alleged to have conducted second marriage about three years prior to the submission of the chargesheet, that is, sometime in the year 2002. This is clearly much after the decree of divorce granted in his favour by the competent Court at Howrah. For the reasons aforesaid, the order dated 14.5.2008 passed in G.R. No. 3213 of 2004 (T.R. No. 1251 of 2008) as well as the order taking cognizance against the petitioner under Section 494 by the concerned Court are set aside. Let the case diary be returned to the Court concerned. The application stands allowed. Anand Kr. (Ahsanuddin Amanullah, J.)