JUDGMENT : V.K. Jadhav, J. Leave to correct the prayer clause. 2. Being aggrieved by the order dated 5th July 2005 passed below Exh.48 in R.C.C. No.69/2004 by Judicial Magistrate, First Class, Raver, the original accused have approached this Court by filing the present criminal application. 3. Brief facts, giving rise to the present application are as follows: 4. Deceased wife of petitioner No.1 had filed complaint before the Magistrate against the petitioners for having committed offence under Sections 494, 109 read with Section 34 of Indian Penal Code and accordingly, the case is registered as R.C.C. No.69/2004. The learned Magistrate by order dated 15th July 2004, issued process against all the accused for the offence punishable under Section 494 of Indian Penal Code. The applicants-accused, on their appearance before the Magistrate, filed an application Exh.48 for recalling the order of issuance of process on the ground that the petitioner No.1 - husband had filed Hindu Marriage Petition bearing Petition No.34-A/2003 against his wife before Additional District Judge, Burhanpur, District Khandwa and the learned Additional District Judge, Burhanpur, by judgment and order dated 8th May, 2003 dissolved the marriage by decree of divorce and by suppressing the said fact, the complainant – Mirabai has lodged the complaint before the Court for the offence punishable under Section 494 of Indian Penal Code. The learned Magistrate, however, by order dated 5th July 2005 passed below Exh.48 in the said case refused to recall the order of issuance of process only on the ground that he cannot review his own order of issuance of process. Hence the present application. 5. Learned Counsel for the petitioners-original accused submits that the petitioner No.1-husband obtained a decree of divorce by presenting Hindu Marriage Petition before the competent Court and accordingly, the relation as husband and wife between petitioner No.1 and Mirabai was not subsisting on the alleged date of having committed offence punishable under Section 494 of Indian Penal Code. Learned Counsel submits that the order passed by the learned Magistrate for issuance of process for the offence punishable under Section 494 of Indian Penal Code is liable to be quashed and set aside and the complaint filed by Mirabai bearing R.C.C. No.69/2004 is liable to be dismissed. 6. Learned Counsel submits that the order passed by the learned Magistrate for issuance of process for the offence punishable under Section 494 of Indian Penal Code is liable to be quashed and set aside and the complaint filed by Mirabai bearing R.C.C. No.69/2004 is liable to be dismissed. 6. Leaned Counsel for the petitioners, in order to substantiate his submissions, placed reliance on the following two judgments of Apex Court : (I) Krishna Gopal Divedi v. Prabha Divedi, reported in (2002) 10 SCC 216; (II) Pashaura Singh v. State of Punjab & Anr., in Criminal Appeal No. 2122 of 2009 (arising out of SLP (Cri.) No. 5910/2006). 7. I have also heard the learned A.P.P. for the State. 8. So far as the penal provisions of Section 494 of Indian Penal Code are concerned, it requires the ingredients namely (a) the accused must have contracted first marriage; (b) he must have married again; (iii) first marriage must be subsisting and spouse must be living. Since the petitioner No.1 had obtained the decree of divorce on 8th May 2003, the relation of petitioner No.1 with complainant – Mirabai as husband and wife was not subsisting on the date of offence i.e. 5th July 2004. 9. In view of the above discussion and in view of the ratio laid down by the Apex Court in the cases cited above relied upon by the learned Counsel for the petitioners, Criminal Application is allowed in terms of prayer clause (A). 10. Criminal Application is accordingly disposed of. Rule made absolute in above terms. Application allowed.