- (1.) SAROJ Bala, J. By means of this application under section 482 Cr. P. C. the applicants have prayed for quashing the summoning order dated 20. 3. 2001 and the further proceedings of complaint case No. 17 of 2001 Anil Kumar v. Dinesh Singh pending in the Court of Civil Judge (J. D.)/j. M. Sonbhadra.
(2.) THE facts giving rise to these proceedings are: A criminal complaint (case No. 533 of 2000) was instituted on 5. 7. 2000 by the opposite party No. 2 with the allegations that sister of opposite party No. 2 was married to Dinesh Singh, (applicant No. 1) in March, 1995 in accordance with Hindu rites and customs. It was alleged that dowry and gifts were given by the father of the opposite party No. 2 at the time of marriage according to his financial capacity. A week after the marriage sister of opposite party No. 2 was harassed by the applicants for bringing insufficient dowry and was turned out of the marital home. The opposite party No. 2 alongwith his father went to her marital home to reason with the applicants but they refused to keep her. The case for maintenance was instituted by the sister of opposite party No. 2 in the Court of Civil Judge (J. D.)/j. M. Robertsganj, Sonbhndra. On May 4, 2000, Onkar Nath Singh, relative of opposite party No. 2 informed that applicant No. 1 in conspiracy with accused-applicants No. 2 to 5 was going to solemnize second marriage with Santosh Kumari, daughter of Jata Shanker Singh R/o Soneversa. The opposite party No. 2 along with his father and witnesses Onkar Nath Singh and Ku-war Singh reached at the spot and found the applicants and many other people sitting at the marriage venue. The opposite party No. 2, his father and relatives asked the applicants not to solemnize second marriage but they criminally intimidated them and forcibly prevented them from going to the police station and allowed them to leave the place after the second marriage Was over. It was alleged that the applicants No. 2 to 5 solemnized the second marriage of applicant No. 1 knowing fully well that the first wife of the applicant was alive. After recording the evidence of complainant under section 200 Cr. P. C. and of witnesses Onkar Nath Singh (C. W. I) and Kuwar Singh (C. W. 2) under section 202 Cr. P. C. , the Judicial Magistrate, Robertsganj being satisfied that prima facie case was made out issued process on 20. 3. 2001 under section 204 Cr. P. C. summoning the applicants for the offences punishable under section 494/109 I. P. C. The summoning order and further proceedings of complaint case have been challenged on the grounds that in the complaint and statements of the complainant and witnesses there is no whisper about the ceremonies taken place at the time of solemnization of alleged second marriage. The proof of valid second marriage lacking no offence was made out against the applicants. According to the applicants invocation before sacred fire and Saptapadi are essential for a valid marriage. In the instant case there are no averments about the performance of these two ceremonies. The contention of the applicants is that mere allegations about performance of second marriage was not sufficient to constitute the offence of bigamy. According to the applicants the place of second marriage being village Soneversa P. S. Manda District Allahabad, the Court at district Sonbhadra had no jurisdiction to take cognizance. There being no allegation in the complaint that sister of opposite party No. 2 was permanently residing in village Banardewa P. S. Karma District Sonbhadra summoning order passed by the Judicial Magistrate Sonbhadra was without jurisdiction. The opposite party No. 2 filed counter affidavit stating that at the stage of summoning the Magistrate had to prima facie satisfy that the offence was made out. According to the opposite party his sister is residing at her father's house after being deserted by her husband-applicant No. 1. The opposite party No. 2 has stated that applicant No. 1 entered into second marriage during the lifetime of his first wife and is living with his second wife.
(3.) THE applicants in their rejoinder affidavit have stated that subjective satisfaction of the Court has to be based on evidence. On the basis of evidence available on the record it cannot be said that applicant No. 1 has entered into second marriage. It is stated that there is no evidence that marriage of Dinesh Singh applicant No. 1 was legally solemnized with another woman. Heard Shri Sanjay Kumar Singh, learned Counsel for the applicants, Shri Rajiv Lochan Shukla and Devesh Vikaram, learned Counsel for the opposite party No. 2, learned A. G. A. and have perused the record.;