Partly allowed

Gaurav Mittal v. State of U.P. and Another

Allahabad HC22 Aug 2024A482/10915/2024

Case brief

AI extract

What is this about?

High Court allowed Section 482 application, setting aside an impugned order dated 15.01.2022 in a criminal case involving bigamy allegations. The order was remitted to the lower court to pass a fresh order after issuing notice to the complainant, relying on a Karnataka HC judgment.

What did the court decide?

Impugned order dated 15.01.2022 set aside; matter remitted to lower court for fresh order after hearing complainant within 3 months.

Gaurav Mittal vs State of U.P. and Another — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:137109

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 10915 of 2024

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Applicant :- Gaurav Mittal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Gopal Counsel for Opposite Party :- G.A.

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Sri Krishna Gopal, learned counsel for applicant.

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Applicant before this Court is alleged to have committed offence under Sections 494, 380 and 504 IPC.

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It is alleged that applicant has married accused Soni despite she has not taken divorce with her earlier husband i.e. complainant.

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In support of his submissions that no offence could be made out against present applicant under Section 494 IPC, learned counsel has referred a judgment of Karnataka High Court in Thimmappa and others vs. Smt. Bharathi, Criminal Petition No. 7517 of 2017 decided on 13.03.2024 and relevant paragraphs thereof are quoted below -:

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“7. Section 494 of IPC reads as under:

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"Marrying again during lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."

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A perusal of Section 494 of IPC would indicate that whoever, having a husband or wife living. marries during the life of such husband or wife

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shall be punished with imprisonment of either description for a term which may extend for seven years. Though there are certain exceptions which have been provided those exceptions would not be attracted in the present case.

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What is important for this Court to consider is that in terms of Section 494 of IPC it is only the person who marries during the subsistence and the life time of the earlier spouse and the earlier marriage could be prosecuted and punished for the offences punishable under Section 494 of IPC.

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The said provision does not even contemplate the person to whom the husband or wife has married to be prosecuted under Section 494 of IPC. Let alone the father, mother and sister who had participated in or attended the wedding. The only allegation made in the complaint at "paragraph 7" is that accused Nos.3 to 6 have knowledge of the marriage of accused Nos.1 and 2 is illegal and despite which they have participated. There is no averment made therein that they were aware of the subsisting marriage between the complainant and accused No.1 or further, there is no allegation made as regards the intention on part of accused Nos.3 to 6 having involved themselves in a offence punishable under Section 494 of IPC or felicitated or abated the said offence.”

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In aforesaid circumstances, I find merit in above arguments, therefore, impugned order dated 15.01.2022 passed in Complaint Case No. 3594 of 2021 (Sunit Agarwal @ Sunny vs. Soni and others) under Sections 494, 380, 504 IPC, Police Station- Premnagar, DistrictBareilly, pending before ACJM, Court-5, Bareilly is hereby set aside and since this order is passed without issuing notice to opposite party-2, therefore, this matter is remitted back to concerned Court to pass a fresh order after hearing complainant only within 3 months from today and taking note of Thimmappa and others (supra).

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With above observations, this application is disposed of .

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Order Date :- 27.8.2024/N. Sinha

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Digitally signed by :- NIRMAL SINHA High Court of Judicature at Allahabad

Gaurav Mittal v. State of U.P. and Another

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Gaurav Mittal v. State of U.P. and Another

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