Anil Kumar Srivastava-II, J.—Heard Sri S. K. Mehrotra, learned counsel for the petitioner and Sri Shiv Nath Tilhari, learned AGA for the State. Opposite party no.1 represented through Sri Raj Priya Srivastava, who did not appear before the Court.
2. This petition has been filed challenging the order dated 28.5.2007 passed by learned Chief Judicial Magistrate, Ambedkar Nagar in Complaint No.2735 of 2004 whereby an application for discharge under Section 245 Cr.P.C. was rejected and the order dated 22.8.2007 passed by learned Sessions Judge, Ambedkar Nagar in Criminal Revision No. Nil of 2007 dismissing the revision on the ground that the revision is not maintainable.
3. Learned counsel for the petitioner submits that the learned Magistrate has erred in rejecting the application for discharge moved under Section 245 Cr.P.C. It appears that the complaint was filed by opposite party no.1 under Section 494 IPC against the petitioner stating that the petitioner has solemnized the second marriage with one Manorama in March 2003. This allegation is made in para no.2 of the complaint. In order to substantiate the complaint, complainant was herself examined before the Magistrate under Section 244 Cr.P.C. wherein it is stated that the petitioner has remarried with one Manoram and Ram Tapeser and Nilam daughter of petitioner and opposite party no.2 were also produced as a witness under Section 244 Cr.P.C. wherein they have stated that Second marriage was performed by the petitioner.
4. After recording of the evidence under Section 244 Cr.P.C an application for discharge application was moved by the petitioner which was rejected by the learned Magistrate on the ground that in the Pariwar Register name of Manoram Devi is entered as wife of the petitioner. Hence, the learned Magistrate rejected the application for discharge.
5. Learned counsel for the petitioner has placed two fold arguments: firstly, learned counsel submits that the application under Section 245(1) Cr.P.C. was maintainable, after recording of the evidence under Section 244 Cr.P.C. In support of the submission learned counsel has placed reliance upon the case of Ajoy Kumar Ghose v. State of Jharkhand and Another (2009)14 Supreme Court Cases 115.
"Section 245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."
6. In Ajoy Kumar Ghose (supra) in para 24 it was held by the Hon''ble Apex Court that
"24. Now, there is a clear difference in Sections 245(1) and 245(2) of the Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Sections 245(1) Cr.P.C."
Further in paragraph 30 it was held as under:
"Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245 (1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244 (1) Cr.P.C, and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him."
Hon''ble Apex Court has drawn distinction between the Section 245 (1) and Section 245(2) Cr.P.C.
"Section 245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
So far as maintainability of application under Section 245(1) is concerned application is maintainable after recording of evidence under Section 244 Cr.P.C.
7. Learned counsel has further submitted on merit that at the stage of framing of the charge, it was incumbent upon the learned Magistrate to record a prima facie, satisfaction about the charge being framed against the accused.
8. This complaint has been filed under Section 494 IPC which reads as under:-
"Section 494 in The Indian Penal Code 494. Marrying again during lifetime of husband or wife.- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
(Exception) This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge."
9. Learned counsel has placed reliance upon a Judgment of Karnataka High Court in Criminal Appeal No.608 of 2008 Smt. Padma Ramachandrappa v. Dr. G. Ramachandrappa and another decided on 17.12.2013 wherein reliance has been placed on Santi Deb Berma v. Smt. Kanchan Prava Devi AIR 1991 Supreme Court 816, Smt. Priya Bala Ghosh v. Suresh Chandra Gosh AIR 1971 Supreme Court 1153 and Bhaurao Shankar Lokhande and Another v. The State of Maharashtra and another AIR 1965 Supreme Court 1564 wherein it was held by the Hon''ble Apex Court that second marriage is to be proved in the form that it was celebrated that proper ceremonies and due form "Sapatapadi is to be proved ceremonies essential for a validity marriage has to be proved. It is necessary for the complainant to state in the complaint that necessary ceremonies to constitute a valid marriage were performed.
10. Learned AGA has also placed reliance upon A. Subash Babu v. State of A.P. & another 2011 LawSuit (SC) 770 wherein in para 10 it is stated that point in dispute was little different. It is not applicable in the facts of the case as there was issue as to whether the second wife would be entitled to maintain a complaint and would be an aggrieved persons even in that judgment it was held that the second marriage should be a valid marriage.
11. The facts in the present case and in the complaint itself there is no assertion about the validity of the second marriage simply. It is said that the petitioner has performed a second marriage even in the statement of witnesses. There is nothing on record to show that the second marriage was a valid marriage or essential for Section 5 of the Hindu Marriage are fulfilled.
12. Consequently, the impugned order passed by the learned Magistrate suffers from material illegality or irregularity which is liable to be quashed and is accordingly quashed.
13. Petition is allowed. Impugned orders dated 28.5.2007 and 22.08.2007 are quashed. Proceedings of Case No.2735 of 2004 pending before the Chief Judicial Magistrate, Ambedkar Nagar Ghanshyam Gautam v. Vimla Devi are quashed.
