1 Cri. Application No.320 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No.320 Of 2011 * Anita D/o. Sushilkumar Dixit, Age 42 years, Occupation : Household, R/o A-5, Shastri Nagar, Yerwada, Pune, District Pune. . ... Applicant. Versus 1) The State of Maharashtra 2) Smt. Devkanta @ Vandana w/o. Dinkar Chate, Age 37 years, Occu: Household, R/o Pangri, Taluka Gangakhed, District Parbhani. ... Respondents. -------- Shri. S.J. Salunke, Advocate, for the applicant. Shri. V.D. Rakh, Additional Public Prosecutor, for respondent No.1. Shri. M.B. Sandanshiv, Advocate, for respondent No.2. -------- CORAM: K.U. CHANDIWAL, J. DATE: 28th JUNE 2011 ORAL JUDGMENT : 1) Heard finally. Rule returnable forthwith. 2) The applicant – Smt. Anita questions issue of process under sections 494 read with section 109 of the Indian Penal Code by the learned Judicial Magistrate First Class Gangakhed by an order dated 18-11-1997. 2 Cri. Application No.320 of 2011 3) The learned counsel for the complainant (respondent No.2 – Devkanta) has invited my attention to the deposition of Sambha Hulgunde, who had occasion to attend the second marriage or seeing garlanding the applicant Anitabai to Digamber. 4) Shri. Salunke learned counsel for the applicant Anitabai submits that, belated approach in terms of Section 482 Cr.P.C. would not dis-entitle the applicant to seek redressal. Second facet of the submissions is that, there cannot be prosecution in terms of section 494 IPC against the applicant as indicated in judgment in the matter of Sangita Natthulal Labhane v. Yashodhara Krishna Bhitre, 2008 ALL MR (Cri) 2228. 5) Learned counsel also placed reliance to the judgment of the Apex Court in the matter of Sunita Jha v. State of Jharkhand, 2010 AIRSCW 6112 dealing with accusations in terms of Section 498A, IPC. The learned counsel has tendered a report dated 3rd October 1997 by respondent No. 2 Smt. Devkanta to the police giving rise to the offence vide Crime No.134 of 1997 and prosecution thereof in which she had referred Dinkar had married to Anita. In the said prosecution 3 Cri. Application No.320 of 2011 i.e. RCC 227 of 1997 Anita was arraigned as accused No.2 and was acquitted for offence under section 498A read with section 34 of the Indian Penal Code by order dated 11-3-2002. The acquittal in Regular Criminal Case No.227 of 1997 to which the counsel has given reference has no relevance to the present case as the said case was for an offence under section 498A read with 34 IPC. 6) The reference to the judgment of Sunita Jha has no relevance. The said prosecution was under section 498A IPC and the present case revolves to the allegations in terms of section 494 read with section 109 of the Indian Penal Code. 7) Reference to the judgment of Sangita has again no relevance as the said prosecution was under section 494 read with section 34 IPC. Considering the legal position the learned Single Judge of this Court observed that, woman getting married with man who is married and whose wife is living such second marriage does not create any legal relationship and second wife could not be treated as relative of husband for the purpose of Section 498A IPC. This view also would not be applicable for sorting questioned controversy. 4 Cri. Application No.320 of 2011 8) Reverting back to the facts the accused Anitabai was aware of the prosecution faced by her since 18-11-1997. The applicant has not exhausted remedy of revision under section 397 of the Cr.P.C. To avoid the hurdle of limitation, the proceeding under section 482 Cr.P.C. is implemented. Such exercise calls for condemnation. On the ground of delay and latches by the applicant-accused she cannot claim a relief under section 482 of the Cr.P.C. 9) The other facet of the matter is applicability of the provisions of section 494 read with section 109 IPC. Section 109 of the IPC deals with punishment of abetment. Whoever abets any offence shall if the act abetted is committed in consequence of the abetment, and no express provision is made by the Code or the punishment of such abetment, be punished with the punishment provided for the offence. 10) Abetment is defined in section 107 of the IPC. A person abets the doing of a thing, who (1) instigates any person to do that thing; or, (2) 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, (3) intentionally aids, by any act or illegal omission, the doing of that thing. The role 5 Cri. Application No.320 of 2011 of Anitabai would be attracting penal consequences under section 494 read with 109, IPC. 11) Survey of the above events indicate application lacks merits, warrants dismissal and it is accordingly dismissed. Rule discharged. 12) The observations are prima facie in nature. Applicant allegedly resides at Pune. The learned Judge may entertain exemption application on its merits, if her presence is not required for effective hearing. Sd/- (K.U. CHANDIWAL, J.) rsl