1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.205 OF 2001 Haresh N. Mirchandani Petitioner versus Reshma Mirchandani and another Respondent Tejas Bhatt with Siddhesh Bhole and Suprabh Jain i/by Haresh Jagtiani and Associates for petitioner. A.H.H.Ponda for respondent no.2. H.J.Dedhia, APP for the State. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 14th July 2009 DATE OF PRONOUNCING THE JUDGEMENT : 30th July 2009 JUDGEMENT :- 1. By this criminal writ petition, the petitioner is praying for quashing the complaint filed by the first respondent. The petitioner and the first respondent are husband and wife. The complaint is filed by the first respondent-wife alleging commission of offence under section 494 of the Indian Penal Code. The challenge by the petitioner is mainly on two grounds. The first ground is that even according to the case of the first respondent when the alleged second marriage of the petitioner was 2 solemnized on 15th November 1983 he was a citizen of India. The learned counsel appearing for the petitioner submitted that cognizance could not have been taken by the Court of the said complaint on account of want of sanction under section 188 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The second submission is that by an order dated 9th November 1983, the competent Court in United States of America had dissolved the marriage between the petitioner and the first respondent and the second marriage has been allegedly performed by the petitioner on 15th November 1983. 2. The learned counsel for the petitioner submitted that by order dated 22nd September 1997 passed by this Court in Criminal Application No. 1272 of 1997 this Court had specifically directed the learned Magistrate to reconsider the entire matter including the legality of the decree of divorce passed by a Court in the United States of America. Inviting my attention to the order dated 2nd March 1998 passed by the learned Magistrate he submitted that the effect of the said decree has not been properly considered by the learned Magistrate. He submitted that on the first point of sanction, reliance cannot be placed on the decision of the Apex Court in the case of Ajay Agarwal Vs. Union of India and others (AIR-1993- SC-1637), in view of the subsequent decision of the Apex Court in the case of Fatma Bibi Ahmed Patel Vs. State of Gujarat and another ([2008]6-SCC-789). 3. He submitted that in view of paragraph no.19 of the said later 3 decision, the earlier decision in the case of Ajay Agarwal (supra) has been explained. 4. The learned counsel for the first respondent submitted that there is a specific averment made in the complaint that the sanction will be obtained before the trial starts in view of the decision of the Apex Court in the case of Ajay Agarwal (supra). He pointed out that the first respondent has filed Criminal Application No.2850 of 2001 in this Court to which the judgement and order dated 31st July 1998 has been annexed by which the learned Judge of the Family Court at Mumbai declared that the ex- parte foreign judgement obtained by the petitioner from the Court of United States of America was not binding on the first respondent and the marriage between the first respondent and the petitioner was subsisting. He submitted that the said decree of the family court has attained finality. 5. I have carefully considered the submissions. As far as second submission is concerned, now there is a decision of the Family Court holding that the decree of divorce passed by the Court in United States of America is not binding and is not conclusive. Therefore, the second submission made by the learned counsel for the petitioner cannot be considered as a ground for quashing the complaint. As far as the sanction under section 188 of the said Code is concerned, it will be necessary to refer to the decision of the Apex Court in the case of Ajay Agarwal (supra). Paragraph 27 of the said decision reads thus :- 4 "27. thus we hold that sanction under S.188 is not a condition precedent to take cognizance of the offence. If need be it could be obtained before trial begins. ... ..." The submission of the learned counsel for the petitioner is that by the subsequent decision in the case of Fatma Bibi Ahmed Patel (supra) the said judgement has been explained. The said submission cannot be accepted. In the subsequent judgement in the case of Fatma Bibi Ahmed Patel (supra) the Apex Court was dealing with a case where the appellant before the Apex Court was not an Indian citizen on the date of commission of the offence. In the case before the Apex Court the offence was allegedly committed in Kuwait. In the context of the factual matrix, the Apex Court has referred the case of Ajay Agarwal (supra). It is not possible to accept that the view in the case of Ajay Agarwal (supra) has been explained in the said subsequent decision. In view of the decision in the case of Ajay Agarwal (Supra), Sanction under Section 188 of the said code can be obtained any time before the trial commences. 6. Hence, no case is made out for quashing the complaint. The writ petition is rejected. However, all contentions of the parties on the merits of the complaint are expressly kept open. (A.S.OKA, J.)