JUDGMENT
Y.P. Nargotra, J.
1. Respondent No. 1, Smt. Veena Sharma, has filed a complaint against the petitioners 1 to 7 and proforma respondents 2 to 9 in the court of Judicial Magistrate Ist Class, Sub-Judge Samba seeking trial and punishment of the accused for commission of offences Under Sections 494/109 RPC on the allegations that she was married to accused, Girdharilal, respondent No. 1, on 27.2.1994 in accordance with Hindu law and rites. After the marriage she lived in the company of the accused and out of the wedlock a female child was born, who at the time of lodging the complaint was 6-1/2 years old. However because of birth of the female child the attitude of the accused respondent No. 1 became hostile and she was subjected to cruelty. She was forced to live along with her parents at her parental house at Samba. After some time the complainant of her own went to her matrimonial house at Billawar to join the society of her husband but there she was stunned to see her husband living with accused No. 12, Mst.Sheela as husband and wife. According to the complainant accused No. 1 had contracted second marriage with accused No. 12 during the subsistence of his marriage with the complainant. She also alleged in the application that second marriage of accused No. 1 with accused No. 12 was abetted by other accused who are relations of accused No. 1 as all of them knew that marriage between accused No. 1 and the complainant was still subsisting, still they participated in the Barat etc. on 6.2.2003 when second marriage was solemnized. So they have also abetted the second marriage. According to the complainant the accused have committed offences Under Sections 494/109 RFC, intentionally, knowingly and deliberately and therefore, are liable to be punished under law. In support of the complaint preliminary statements of the witnesses were also recorded by the learned trial court and on the basis of the allegations and the preliminary statements of the witnessed learned trial court by passing the order dated 25.4.2003 took cognizance against the accused for commission of said offences and issued the process for their summoning. Petitioners-accused aggrieved by the taking of cognizance and issuance of process have filed the present petition Under Section 561-A Cr.P.C. seeking quashment of the order dated 25.4.2003, with all consequential proceedings.
2. I have heard the learned counsel for the parties and perused the record of the case as well.
The contention of Mr. Sakal Bushan, learned counsel for the petitioner is two fold; firstly he submits that in the complaint it has not been recorded by the complainant as to at what place the marriage took place. According to him it is only the place where the second marriage is contracted which determines the territorial jurisdiction on the magistrate for trial of an offence Under Section 494 RFC. He has submitted that in the complaint the complainant has only alleged that the accused No. 1 has contracted second marriage with accused No. 12 without saying as to whether the second marriage was contracted according to rites and ceremonies under Hindu law by which the parties are governed. According to him for constituting an offence Under Section 494 RFC it is necessary that the second marriage which is alleged to have been conducted must be a valid marriage. A marriage can be valid only if it is performed after solemnizing the ceremonies under personal law by which the parties are governed. Therefore, in absence of the averments in that behalf in the complaint it cannot be said that the second marriage is a valid marriage, if at all it is believed to have been conducted, no offence Under Section 494 will stand constituted.
3. On the other hand the contention of learned counsel for the complainant is that both the objections raised by learned counsel for the accused are factual objections which can be proved by leading evidence during trial before the trial court. He has further argued that the proceedings ordinarily should not be quashed at the threshold, as it would amount to denial of justice to the complainant simply on technical grounds.
4. I have considered the respective contentions of the learned counsel for the parties. In my view the order of the learned trial court, impugned in this petition, does not call for any interference. In 1979 Cr.LJ NOC Allahbad 202 their Lordships of held as under: —
“Where an accused is charged of committing offence under Sections 494 and 109, Penal Code and for having abetted the same whether the Magistrate within whose jurisdiction the complainant’s (wife’s) parent lived was competent to try the case even if the second marriage was not solemnized within his jurisdiction, could be decided only after taking evidence. The basic ingredient of offence under Section 495 is concealment of the fact of earlier marriage and whether this took place at the residence of complainant’s parent was a question which could be decided only after entire evidence was led.”
This authority applies to the facts in issue in the present case. The complainant may show by leading evidence as to where the second marriage was conducted. The question of jurisdiction can be dealt with only when the parties are able to lead evidence. Complainant can fill up the gaps left in the complaint by leading necessary evidence. The first objection of learned counsel for the accused therefore is not tenable.
5. As regards the second objection, this too depends upon proof by way of leading evidence. Simply because in the complaint it has not been said by the complainant that second marriage was conducted according to Hindu rites and after performing necessary ceremonies, it cannot be said that the offence has not been constituted. The basic ingredients of the offence Under Section 494 is contracting a second marriage during the subsistence of first marriage.
When second marriage is alleged in the complaint, prima facie offence would be constituted for purposes of issuance of process Under Section 204 Cr.PC. Section 204
Cr.PC provides as under: —
“If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which according to the fourth column of the second schedule, a summons should issue in the first instance, he shall issue his summons for the attendance of the accused. If the case appears to be one in which according to that column a warrant should issue in the first instance, he may issue a warrant or if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate or some other Magistrate having jurisdiction.”
6. From the bare perusal of the section it is manifest that if in the opinion of the Magistrate there is sufficient ground for proceeding, he can issue the process for summoning the accused. The expression ‘sufficient ground’ used in the section would mean that the facts mentioned in the complainant prima facie indicate commission of some offence.. At the time of looking into prima facie case, the Magistrate is not to weigh the allegations in the complaint as evidence but has only to see whether there are grounds to proceed in the complaint. There is therefore no merit in the second contention of the learned counsel for the petitioner also. The authorities, AIR 1978 SC 848 and 2001(4) Cr.LJ 278, relied upon by him have no application in view of the present stage of the proceedings in the case in hand.
7. There is no merit in this petition, which is accordingly dismissed. Record of the trial court shall be sent back forthwith.
