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Neutral Citation No. - 2024:AHC:72904

Court No. - 69 A.F.R.
Case :- CRIMINAL REVISION DEFECTIVE No. - 470 of 2024
Revisionist :- Nisha
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Diwakar Mishra,Gaurav Kumar
Srivastava,Mohd Afroz Khan
Counsel for Opposite Party :- Baleshwar Dayal,G.A.,Mayank
Prakash Rawat

Hon'ble Dr. Gautam Chowdhary,J.

1. Heard Shri Gaurav Kumar Srivastava, learned counsel for

the revisionist, Shri Jai Kishan Chaurasia, learned A.G.A. for the
State and Shri Surendra Kumar, Advocate, holding brief of Shri
Mayank Prakash Rawat, the learned counsel for the opposite
party No. 2 and perused the record.

2. There is a delay of 275 days in filing the present revision

as per report of the Stamp Reporter.

3. Considering the cause shown in the affidavit filed in

support of the delay condonation application and considering the
consent of both the parties for condoning the delay, the Crl.
Misc. Delay Condonation Application No. 01 of 2024 is allowed
and accordingly the delay is condoned.

4. The present revision under Section 397/401 Cr.P.C. has

been filed with a prayer to quash the summoning order dated
20.02.2023 passed by learned Additional Chief Judicial
Magistrate, Court No. 2, Agra in Complaint Case No. 15795 of
2022 (Shubham Sharma Vs. Nisha), under Sections 494, 504, 506
I.P.C., Police Station Sikandra, District Agra.

5. The facts of the case which are required to be stated here

are that on 05.12.2022 the opposite party No. 2 filed a
complaint case against the present revisionist with the allegation
that earlier revisionist had solemnized marriage with one Vijay
Singh, and without obtaining any decree of divorce from any
court of law and while her earlier husband is also alive,
concealing these facts she has solemnized marriage with him in
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Arya Samaj Mandir according to Hindu rites and rituals and

when it came into his knowledge he asked about the same from
the revisionist then she threatened her for implicating him in
false cases and she has also made demand of ten lakh rupees.
On filing of the said complaint the court concerned, after
recording statements of complainant and witnesses under Section
200 & 202 Cr.P.C. summoned the revisionist for the offence
under Sections 494, 504, 506 I.P.C., which is the subject matter
of challenge in the present revision.

6. Assailing the impugned summoning order dated

20.02.2023, main substratum of argument of learned counsel for
the revisionist are as under:-

(i) The revisionist and her first husband, Vijay

Singh, are residing separately for the last 16 years
and they have no concern with each other. Earlier
the revisionist has lodged an F.I.R. under Sections
147, 323, 354(Kha), 504, 506 I.P.C. against her
husband, i.e., opposite party No.2 and his family
members alleging therein that she had solemnized
marriage with the opposite party No. 2 on
08.03.2022 in Arya Samaj Mandir, after marriage the
opposite party No. 2 has not taken her to his home
and stayed her in a rented house and he used to
made sexual relations with her, on 28.12.2022 when
she reached at the house of opposite party No. 2 to
reside with him then the opposite party No. 2 and
his other family members had abused her, and the
opposite party No. 2 had torn her clothes and broken
her one leg, regarding which she had also lodged an
F.I.R. dated 16.01.2023 which was registered as Case
Crime No. 06 of 2023, under Sections 147, 323,
354(Kha), 504, 506 I.P.C., Police Station Trans
Yamuna, District Agra, and in counter blast the
present complaint case has been filed by her
husband.
(ii) The revisionist and her first husband namely
Vijay Singh filed divorce petition under Section 13-B
of Hindu Marriage Act before the Additional Principal
Judge/ Family Court, Mathura on 27.07.2022 and the
Family Court allowed the said divorce petition dated
04.07.2023 and the said divorce petition was filed
before she has solemnized marriage with the opposite
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party No. 2, thus, a false complaint has been filed

against her.
(iii) Much emphasis has been given by contending
that the allegations levelled against the revisionist are
wholly false and based on concocted facts.
(iv) Referring to the contents of complaint and
statements under Section 200 and 202 Cr.P.C., it is
also argued that there is no whisper about the facts
that as to what rites, ceremonials, rituals, formalities,
protocols, customary acts and procedure were
performed in the alleged second marriage of
revisionist with the opposite party No. 2.
(v) In the complaint and statements of the
complainant as well as witnesses, there is lack of
'solemnization' of marriage and ceremony of
'Saptapadi' as per Section 7(2) of Hindu Marriage Act.
There is no mention of the name of priest in the
complaint who recited the rites of alleged second
marriage, hence, no offence under Section 494 I.P.C.
is made out against the revisionist.

(vi) On the strength of aforesaid arguments, lastly it

is submitted that criminal proceeding of this case
against the revisionist is nothing but a malicious
prosecution, which is abuse of process of court and is
liable to be quashed.

7. Learned A.G.A. for the State as well as learned counsel for

the opposite party No. 2 have submitted that there is allegation
against the revisionist for bigamy, therefore, after recording
statements under Sections 200 & 202 Cr.P.C. the court concerned
has rightly summoned the revisionist, thus, there is no error in
the order impugned and the same needs no interference.

8. Before entering into the matter, it would be relevant to

quote Section 494 of I.P.C. :-

“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.
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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. The expression 'whoever......marries' mentioned in Section

494 of I.P.C. must mean 'whoever.....marries validly' or
'whoever......marries and whose marriage is a valid one if the
marriage is not a valid one, according to law applicable to the
parties, no question of its being void by reason of its taking
place during life of the husband or wife of the person marrying
arises. If the marriage is not a valid marriage, it is no marriage
in the eye of law.

10. In order to make out an offence of bigamy under Section

494 I.P.C., following ingredients should be established by the
prosecution.

(i) That the accused was already married to some

person; proof of actual marriage is always necessary;
(ii) That the husband or wife to whom the person
was married as the case may be, was alive on the
date of the second marriage and proof thereto
satisfactory to the Court must be adduced;
(iii) That the accused married another person proof of
celebration of second marriage must be in the same
manner as that of the first; and
(iv) That the second marriage was void by reason of
its taking place during the lifetime of the first
spouse.
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11. As per Section 7 of Hindu Marriage Act, 1955, ceremonies

in a hindu marriage is explained as under:-

(1) A Hindu marriage may be solemnized in

accordance with the customary rites and ceremonies
of either party thereto.
(2) Where such rites and ceremonies include the
saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding
when the seventh step is taken.

12. Having heard the submissions of learned counsel for the

parties and perusing the record, I find that so far as the second
marriage of revisionist is concerned, it is well settled that the
word 'solemnize' means, in connection with a marriage, 'to
celebrate the marriage with proper ceremonies and in due form'.
Unless the marriage is celebrated or performed with proper
ceremonies and due form, it cannot be said to be 'solemnized'. If
the marriage is not a valid marriage, according to the law
applicable to the parties, it is not a marriage in the eyes of law.
It is also well settled that to constitute an offence under Section
494 I.P.C., it is necessary that the second marriage should have
been celebrated with proper ceremonies and in due form. The
'Saptapadi' ceremony under the Hindu Law is one of the
essential ingredients to constitute a valid marriage but the said
evidence is lacking in the present case. Even there is no
averment with regard to 'Saptapadi' in the complaint as well as
in the statements under Section 200 and 202 Cr.P.C., hence, this
Court is of the view that no prima facie offence is made out
against the revisionist as the allegation of second marriage is a
bald allegation without corroborative materials. In absence of
cogent evidence in this regard, it is difficult to hold that the
'Saptapadi ceremony' of the marriage as contended by the
complainant was performed so as to constitute a valid marriage
between the parties concerned. As such on taking into
consideration the contents of the complaint on its face value, the
basic ingredients to constitute an offence under Section 494 of
I.P.C. are lacking, hence, no offence under Section 494 I.P.C. is
made out against the revisionist.
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13. Here it would be apposite to quote some relevant

judgments of the Apex Court, which are as under:-

14. The Apex Court in Madhavrao Jiwajirao Scindia and others

vs. Sambhajirao chandrojirao Angre and others, (1988) 1 SCC
692 observed in para 7 as under :-

"The legal position is well settled that when a

prosecution at the initial stage is asked to be
quashed, the test to be applied by the Court is as to
whether the uncontroverted allegations as made
prima facie establish the offence. It is also for the
Court to take into consideration any special features
which appear in a particular case to consider whether
it is expedient and in the interest of justice to permit
a prosecution to continue. This is so on the basis
that the Court cannot be utilized for any oblique
purpose and where in the opinion of the Court
chances of an ultimate conviction is bleak and,
therefore, no useful purpose is likely to be served by
allowing a criminal prosecution to continue, the
Court may while taking into consideration the special
facts of a case also quash the proceeding even
though it may be at a preliminary stage."

15. The Apex Court in State of Harayana and others vs

Chaudhary Bhajan Lal and others, 1992 SCC (Cri) 426,
considering a series of decisions has laid down seven criteria for
quashing the entire proceedings in exercise of powers under
Section 482 Cr.P.C. by this Court, which reads as under:-

"(a) where the allegations made in the First

Information Report or the complaint, even if they are
taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused;
(b) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. do not disclose a cognizable offence, justifying
an investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of
the Code;
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(c) where the uncontroverted allegations made in the

FIR or 'complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused;
(d) where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground
for proceeding against the accused;
(f) where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly
attended with malafide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."

16. The Apex Court in the case of Pepsi Foods Ltd. vs. Special
Judicial Magistrate, (1998) 5 SCC 749, has observed that:-

"Summoning of an accused in a criminal case is a

serious matter. Criminal law cannot be set into
motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
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the accused. It is not that the Magistrate is a silent

spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."

17. The Apex Court in case of Dilawar Balu Kurane Vs. State
of Maharashtra, (2002) 2 SCC 135, has observed that:-

"In exercising jurisdiction under Section 227 Cr.P.C,

the Judge cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider
the broad probabilities of the case, the total effect of
the evidence and the documents produced before the
court but should not make a roving enquiry into the
pros and cons of the matter and weigh the evidence
as if he was conducting a trial."

18. The Apex Court in the case of Som Mittal vs. Government
of Karnataka, (2008) 3 SCC 753, has held that :-

"When grave miscarriage of justice would be

committed if the trial is allowed to proceed; or
where the accused would be harassed unnecessarily if
the trial is allowed; or when prima facie it appears
to Court that the trial would likely to be ended in
acquittal. Then the inherent power of the Court
under section 482 of the Code of Criminal Procedure
can be invoked by the High Court either to prevent
abuse of process of any Court, or otherwise To
secure the ends of justice."

19. The Apex Court in case of Ravinder Singh Vs. Sukhbir

Singh & Ors, (2013) 9 SCC 245, has held as under:-

"It may be so necessary to curb the menace of

criminal prosecution as an instrument of operation of
needless harassment. A person cannot be permitted to
unleash vendetta to harass any person needlessly. Ex
debito justitiae is inbuilt in the inherent power of the
court and the whole idea is to do real, complete and
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substantial justice for which the courts exist. Thus, it

becomes the paramount duty of the court to protect
an apparently innocent person, not to be subjected to
prosecution on the basis of wholly untenable
complaint."

20. On the aforesaid discussion, this Court is of the view that

the criminal proceedings against the revisionist initiated by the
opposite party No. 2 under Section 494 I.P.C. is nothing but a
malicious prosecution with an ulterior motive, which is clear
abuse of process of the Court, thus, summoning the revisionist
under Section 494 I.P.C vide impugned order dated 20.02.2023
is not sustainable. This Court, under the facts and circumstances
of the case, feels that it is the solemn duty of the Court to
protect apparently an innocent person, not to be subjected to
such frivolous prosecution on the basis of wholly untenable
allegations and complaint, thus, if criminal proceeding initiated
against the revisionist under Section 494 I.P.C. is permitted to
go on, the same will tantamount to causing grave miscarriage of
justice, therefore in order to secure the ends of justice, the
impugned criminal proceeding under Section 494 I.P.C. initiated
against the revisionist is liable to be quashed.

21. As a fallout and consequence of aforesaid discussion, the

impugned summoning order dated 20.02.2023 and further
proceedings of Complaint Case No. 15795 of 2022 (Shubham
Sharma Vs. Nisha), pending in the court of learned Additional
Chief Judicial Magistrate, Court No. 2, Agra, so far as it relates
to the provisions under Section 494 I.P.C. is concerned, the
same is hereby quashed. However, so far as the aforesaid
criminal proceeding initiated against the revisionist in other
provisions, i.e., under Sections 504, 506 I.P.C. is concerned, the
same shall go on and for the same revisionist is at liberty to
appear before the court concerned and apply for bail.

22. Accordingly, the present revision is partly allowed.

Order Date :- 25.4.2024

Mustaqeem.

Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad