- (1.) V. P. Mathur, J. This petition under Section 482, of the Cr. P. C. is directed against an order passed by the Munsif Magistrate of Varanasi on 22/7/1982 in Criminal Case No. 1029 of 1982 - Kajni Jain v. Man Mohan Jain, summoning the accused for offence under Section 494, I. P. C.
(2.) BRIEFLY stated, the case is that Smt. Rajni Jain filed a complaint against the present petitioners for action under Section 494 of the Indian Penal Code. Man Mohan Jain (applicant No. 1) is her husband. It is alleged that he entered into a second marriage with Km. Sudha Churi (applicant No. 2 ). Applicants Nos. 3 and 4 are the father and. mother of Km. Sudha Churi. The complaint allegations were that Smt. Rajni Jain and Man Mohan Jain were married according to Hindu rights , on 11-7-1975. After the marriage the complainant started living with her husband in Agra. In 1977 they both came to Varanasi, where the father and mother of the complainant resides. This visit was in connection with the marriage of the complainant's brother. After the marriage, she was left at Varanasi to complete her Ph. D. But subsequently on 13-6-1982 when the Complainant was also in Agta, Man Mohan Jain entered into a second marriage with Km. Sudha Churi, in which her parents who are the present applicants Nos. 3 and 4 performed the Kanyadan in spite of full knowledge that Man Mohan Jain was already a married person and in spite of the fact that the complainant reached the spot where the marriage was being performed and when it was going on, she brought it to the notice of every body that she was the married wife of Man Mohan Jain. These allegations of the complainant were supported by the statement of Smt. Rajni Jain recorded under Section 200 of the Code of Criminal Procedure and by the statement of Nawal Kishore recorded under Section 202, Cr. P. C. and the learned Magistrate passed the impugned order summoning the petitioners. The case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR1971 SC 1153 is cited to show that in order to prove, a charge under section 494, for bigamy the proof of solemnization of the second marriage in accordance with essential religious rites applicable to the parties is a must for conviction and even an admission by the accused that he had contracted second marriage will not be sufficient. There can be no dispute with this law but the question is as to whether at this initial stage of the proceedings, detailed evidence regarding the performance of SATPADI and invocation to fire will be necessary or whether the statements of the witnesses to the effect that the second marriage was performed in their presence, will be sufficient. When a complaint is filed. the Magistrate in order to take cognizance, has to examine the complainant and his witnesses and if he comes to the conclusion that a. prima facie case is made out, he has to take cognizance and proceed according to law. A prima fade case is a case which if it remains unrrebutted will be deemed to have been proved. At this stage of the proceedings, the present applicants do not come in to picture at all and the Court cannot look into what their contention may be. They come into the picture only when they appear with reference to the summons or when they challenge the summons themselves. We will only have to look into the statements of Rajni and her witnesses and in order to come to a conclusion whether a prima fade case was made out, on the basis of which the Magistrate could take cognizance, I am of the opinion that it was no stage to prove as a matter of fact the solemnization of the second marriage according to the prescribed rules. The mere contention on oath that the second marriage was performed, should be taken to mean that it was performed in accordance with the prescribed rules and applicable law. It will be at the stage of evidence when the parties are represented and the contest is put forth whether the actual of the marriage is or is not established and the Court will necessarily pass its order on that basis. At this stage of the proceedings, the learned Magistrate has rightly taken cogni zance of the matter. The husband has been rightly summoned under Section 494, I. P. C. and the alleged second wife and her parents may be summoned under Section 494, read with Section 109, I. P. C. or Section 494, read with Section 114, I. P. C. 5 The learned Counsel has also in passing referred t o a. judgment of this Court in the matter of Smt. Neelam Devi and others v. Kailash Nath Tripathi and others, Crl. Misc. Case No. 979 of 1977. It was a case in which a complaint had been filed by Kailash Nath Tripathi alleging offence under Section 494, and Section 494/114 of the Indian Penal Code. In this case also, the question of second marriage was to be considered and no where in the petition or in the complaint was any mention made of the second marriage. All that was stated is that the applicant No. 1 was Jiving like a wife with applicant No. 2 and she had illegal connections with him and with several other persons also and has even given birth to a child from applicant No. 1. This did not amount to marriage and this Court was of the view that there was no case prima fade made out for action under Section 494, I. P. C. Obviously the fact of the case of Neelam Devi (supra) are entirely different. In the present case, there is an allegation of a second marriage. ' 6. There is thus no force in this petition, which is hereby dismissed. Petition dismissed. .;