- (1.) K. N. Sinha, J. Heard the learned Counsel for the petitioner and the learned A. G. A. Perused the impugned orders.
(2.) THE brief facts, giving rise to this petition are that Smt. Geeta, Respondent No. 2, filed a complaint under Section 494 IPC on the ground that she was married with the petitioner on 10-7- 1999 but after her two days stay, she was turned out of the house. Later on, the petitioner married with Km. Reena on 8-3- 2000 without any divorce from the complainant Smt. Geeta. In support of her complainant she examined herself and two witnesses Rajkumar and Narendra. THE Magistrate passed the summoning order on the complaint whereupon the accused filed an objection against the summoning order which was rejected by the order dated 30-4- 2002. THE petitioner filed a revision against the said order which was also dismissed by the order dated 10-12-2002. THE present petition has been filed for quashing the summoning order dated 17-6-2000 the order dated 30-4-2002 rejecting the objection of the petitioner and the order dated 10-12-2002 dismissing the revision of the petitioner. I have perused the copy of the complaint and the statements of the witnesses and the impugned orders. The learned Counsel for the petitioner has submitted that the summoning order is bad in the eyes of law as there is no proof regarding the second marriage. In the absence of such proof the petitioner cannot be summoned. In support of his contention the learned Counsel for the petitioner has relied upon 1997 JIC 61 (SC) 1996 U. P. Criminal Rulings page 732, P. Satyanarayana and another v. P. Mallaiah and others. I have gone through the said authority, which lays down that legal evidence in proof of second marriage is necessary. The said principle was laid down after the parties had entered into evidence and not at the summoning stage. According to the facts of the above case the wife had filed a complaint before the police and after investigation the trial took place wherein the accused admitted charge of second marriage. The Court recorded the evidence of prosecution but found that there was no legal evidence to prove the factum of second marriage; hence acquitted him.
(3.) THE learned Counsel for the petitioner further relied upon the case of Smt. Urmila v. State of U. P. and others, reported in U. P. Criminal Rulings page 382, wherein the entire prosecution evidence was exhausted. THE accused-husband was convicted and his appeal was allowed by the Sessions Judge and accordingly the revision was dismissed by this Court holding that there was no legal evidence of second marriage. In both the above cases the prosecution had full opportunity to lead the evidence and then only it had an opportunity to adduce the legal evidence about the factum of second marriage. So far as the case at this stage is concerned, it only requires that if, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may summon the accused. The proof as required for trial is a different factor than the grounds mentioned for summoning of the accused. No doubt, the order has not to be passed mechanically but an inquiry has to be made in the allegations set-forth in the complaint.;