R.N.Ray, J. - (1.) HEARD learned counsel for the applicant who submitted that on perusal of the complaint petition and the statements on oath of the complainant and her witnesses before the learned court below, it will reveal that there is no any cogent materials before the learned court below to hold prima facie that valid second marriage had taken place during the life-time of opposite party No. 2 who happens to be legally married wife of the applicant of this application before me. It is submitted that the order passed by the learned court below by which he issued sumons to the applicant should be set aside and the complaint case No. 238 of 1993 Phuljhari Devi v. Subhash Chandra Singh, under Section 494, I.P.C. pending in the court of VIII Addl. Chief Judicial Magistrate, Varanasi be quashed.
(2.) HEARD learned A.G.A. also, who submitted that prima facie there are materials for issuance of summons and evidences in details may be gone into at the time of trial only for due consideration for judgment/order. Moreover, if the applicant has been prejudiced, then he can agitate his grievance before the learned court below regarding cognizance and that petition should be disposed of by the learned court below according to law. Considered the submissions of the learned Advocates and also perused the judgment as referred to by the learned counsel for the applicant as Bhaurao Shanker Lokhande and another v. State of Maharashtra and another, 1965 (2) Crlj 545 and another case Kanwal Ram and others v. The Himachal Pradesh, Administration, AIR 1966 SC 614. In these decisions, the Hon'ble Apex Court has been pleased to hold that to prove a charge under Section 494, I.P.C, the prosecution must prove that all the essential ceremonies for a valid Hindu marriage have been performed. Similar views have been taken in the decision of the Hon'ble Supreme Court as reported in 1971 SCC (Criminal) page 362. It is law of our land that second valid Hindu marriage cannot take place during the life-time of the first wife provided that marriage ties continue. In such cases, the word "valid second marriage" is misnomer because in the eye of law during the life-time of the spouse of a Hindu, there cannot be any valid marriage for the second time after the enforcement of the Hindu Marriage Act, 1955. Only thing is to be seen during the trial as to whether rites and rituals, i.e., all formalities which are essential for a valid marriage had been performed in the alleged incident and if the prosecution is successful in proving the same, only then it will be deemed that prosecution has been successful in bringing home the charge under Section 494,I.P.C. It is more so because any married Hindu during the continuation of marriage tie is incompetent to marry. But so far taking cognizance by the learned Magistrate upon a complaint petition and for issuance of summons to the alleged accused person, learned Magistrate has to satisfy himself as to whether there is prima facie any material pointing to commission of alleged offence. It is to be seen by the learned Magistrate In a complaint case under Section 494, I.P.C. as to whether from the statements on oath of the complainant and complainant's witnesses present, any prima facie case under Section 494, I.P.C. has been made out and if he is satisfied on perusal of the complaint petition and statements on oath as recorded by the learned Magistrate that prima facie a case under Section 494, I.P.C. has been made out, then he shall take cognizance of the alleged offence and issue summons against the alleged offender.
(3.) I have gone through the statements on oath made by the witnesses examined before the learned court below who stated categorically that accused had married for the second time though the complainant happens to be his first wife and their first marriage was valid marriage as all the rites and rituals of Hindu marriage had taken place. Complainant's other witnesses examined have also stated on oath naming some witnesses who had seen the second marriage performed by the accused applicant. So I do not find any infirmity in the impugned order passed by the learned court below by which he issued summons after taking cognizance under Section 494, I.P.C. and as such this petition must fail and it is accordingly rejected. Accordingly rejected.;