- (1.) C. A. Rahim, J. This revision has been directed Against the judgment and order dated 9-7-1993 passed by the Xth Additional Sessions Judge, Agra, allowing Criminal Revision No. 253 of 1992 filed by Opposite Party No. 2 against the order dated 15-5-1992 passed by 1st A. C. J. M. Agra, dismissing the complaint under Section 203, Cr. P. C. in Criminal Case No. 1272 of 1991.
(2.) A complaint was filed before the learned Magistrate with the allegation that opposite party No. 1 committed bigamy in association with other applicants and married another lady, Smt. Usha by name. Opposite party No. 2 being complainant examined two witnesses under Section 202, Cr. P. C. and the learned Magistrate dis missed the petition of complaint under Section 203, Cr. P. C. presumably not being satisfied by the prima facie evidence being made out by opposite party No. 2. Learned Counsel for the revisionist besides merits has challenged the judg ment and order of the learned Sessions Judge, mainly, on two grounds, firstly that the learned Sessions Judge should not have assessed the evidence sitting in revisional jurisdiction and substituting his own finding which is bad in law and secondly that no opportunity of hearing was accorded to the present applicants. After going through the judgment I find that the learned Sessions Judge did not consider Section 398, Cr. P. C. in this respect which clearly prohibits to pass any judgment reversing the order of the lower court in a ease where any complaint has been dismissed under Section 203. Section 398 provides that on examining any record under Section 397 or otherwise, the High Court or the Sessions Court may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make further enquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204 or into the case of any person accused of an offence who has been discharged provided that such order shall not be passed without offering any oppor tunity of showing cause to the other side. This order specifically directs firstly that the order of further inquiry should have been made if the learned Sessions Judge was not in agreement with the learned Magistrate and such order should have passed after giving opportunity to the other side for showing cause. In both the aspects I find that the learned Sessions Judge has committed an error. Accordingly the order passed by the learned Sessions Judge should be struck down without considering merits of the case. On behalf of the applicants some points have been raised which should be referred in this judgment for consideration of the learned Magistrate. It has been submitted that the earlier marriage of the complainant with one Chandra Pal Singh and admission of such marriage by the complainant should have been considered. On this point the reply of the opposite party is that in the affidavit filed by the mother of the complainant it was stated that only sagai was performed but not the marriage. It has also been stated that the ingredients of Section 494,i. P. C. is absent. It has also been stated that only one witness i. e. Meera has been examined out of eight witnesses, named in the petition of complaint. It has also been submitted that ritual observed in the marriage has not been specifically raised or proved but on behalf of the opposite party some photographs of the marriage including one certificate of marriage has been annexed along with the affidavit. Apart from this it is necessary to see how far it is within the knowledge of the other applicants besides the husband about the pact of the first marriage of the husband i. e. the applicant No. 1. Mera presence of other persons in the second marriage does not constitute the offence if they had no prior knowledge of the first marriage of the applicant. It is true that the photographs and the certificates would be properly scrutinized during the trial and not at this stage but those photographs sufficiently explain and attached some importance as regards the determination of the prima facie case.
(3.) THE revision is, therefore, allowed. THE order dated 9-7-1993 passed by the Additional Sessions Judge, Agra and 15-5-92 passeed A. C. J. M. , Agra are hereby set aside. THE learned Magistrate shall proceed with this case in view of the observations made above and decide according to the law. Be it mentioned that any observation with regard to the merit is strictly restricted for the disposal of the present revision which should or shall not influence the Magistrate while considering the prima facie case. Revision allowed. .;