Ashok vs State of U.P. and Another

K.N. Sinha, J.—Heard the learned Counsel for the Petitioner and the learned A.G.A. Perused the impugned orders.

The brief facts, giving rise to this petition, are that Smt. Geeta, Respondent No. 2, filed a complaint u/s 494, I.P.C. on the ground that she was married with the Petitioner on 10.7.1999 but after her two days stay, she was turned out of the house. Later on, the Petitioner married with Km. Reena on 8.3.2000, without any divorce from the complainant Smt. Geeta. In support of her complaint, she examined herself and two witnesses Rajkumar and Narendra. The Magistrate passed the summoning order on the complaint, whereupon the accused filed an objection against the summoning order which was rejected by the order dated 30.4.2002. The Petitioner filed a revision against the said order which was also dismissed by the order dated 10.12.2002. The present petition has been filed for quashing the summoning order dated 17.6.2000 the order dated 30.4.2002, rejecting the objection of the Petitioner and the order dated 10.12.2002 dismissing the revision of the Petitioner.

I have perused the copy of the complaint and the statements of the witnesses and the impugned orders.

The learned Counsel for the Petitioner has submitted that the summoning order is bad in the eyes of law as there is no proof regarding the second marriage. In the absence of such proof, the Petitioner cannot be summoned. In support of his contention, the learned Counsel for the Petitioner has relied upon P. Satyanarayana and Anr. v. P. Mallaiah and Ors. 1996 UP CR 732. I have gone through the said authority, which lays down that legal evidence in proof of second marriage is necessary. The said principle was laid down after the parties had entered into evidence and not at the summoning stage. According to the facts of the above case, the wife had filed a complaint before the police and after investigation, the trial took place wherein the accused admitted charge of second marriage. The Court recorded the evidence of prosecution but found that there was no legal evidence to prove the factum of second marriage ; hence acquitted him.

The learned Counsel for the Petitioner further relied upon the case of Smt. Urmila v. State of U.P. and Ors. 1996 UP CR 382, wherein the entire prosecution evidence was exhausted. The accused-husband was convicted and his appeal was allowed by the Sessions Judge and accordingly, the revision was dismissed by this Court holding that there was no legal evidence of second marriage.

In both the above cases, the prosecution had full opportunity to lead the evidence and then only it had an opportunity to adduce the legal evidence about the factum of second marriage. So far as the case at this stage is concerned, it only requires that if, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he may summon the accused. The proof as required for trial is a different factor than the grounds mentioned for summoning of the accused. No doubt, the order has not to be passed mechanically but an inquiry has to be made in the allegations set-forth in the complaint.

The Apex Court in Smt. Nagawwa v. Veeranna Shivalingappa Nonjalgi and Ors. (13) 1976 ACC 224 (SC), has laid down the principle that the enquiry u/s 202, Cr. P.C. is limited only to ascertainment of truth or falsehood of the allegations made in the complaint, firstly, on the material placed by the complainant and secondly, for limited purpose of finding out whether a prima facie case for issue of process is made out or not.

In S.N. Palanitkar and Ors. v. State of Bihar and Anr. AIR 2001 SC 2960, the term ''sufficient ground'' has been explained to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purposes of conviction.

Thus, the enquiry u/s 202, Cr. P.C. is for a limited purpose of taking cognizance on complaint and issue of process against the accused, which does not require the nature of evidence as required for framing charge or holding the accused to be guilty. Hence, the order of the Magistrate and that of the Sessions Judge do not suffer from any illegality or jurisdictional error.

The petition is dismissed being devoid of any force.