VERDICTUM.

IN

AFR

Neutral Citation No. - 2023:AHC:181300

Court No. - 88

Case :- APPLICATION U/S 482 No. - 23148 of 2022

Applicant :- Smriti Singh Alias Mausami Singh And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shri Prakash Dwivedi,Saurabh Sachan
Counsel for Opposite Party :- G.A.,Ajatshatru Pandey

Hon'ble Sanjay Kumar Singh,J.

1-Heard Mr. Saurabh Sachan, learned counsel for the

applicants, Mr. Rabindra Kumar Singh, learned Additional
Government Advocate assisted by Ms. Pratiksha Rai, learned
Brief Holder for the State of U.P./opposite party No.1 and Mr.
Ajatshatru Pandey, learned counsel appearing on behalf of the
opposite party no. 2.

2-This application under Section 482 Cr.P.C. has been filed by

the applicants with a prayer to quash the summoning order
dated 21.04.2022 and proceedings of Complaint Case No. 2513
of 2021 (Satyam Singh vs. Smriti Singh), under Sections 494
and 109 I.P.C., Police Station Sigra, District Varanasi, pending
in the Court of learned Civil Judge (J.D.) F.T.C. 1st, Varanasi.

3-The facts of the case which are required to be stated are

that on 05.06.2017, marriage of the complainant/opposite
party no. 2-Satyam Singh was solemnized with the applicant
no.1-Smriti Singh alias Mausami Singh as per Hindu Rites and
Rituals but their marriage was not successful and on account
of acrimonious relation and matrimonial dispute, applicant no.
1 lodged a first information report on 30.06.2017 registered at
Case Crime No. 0341 of 2017 for the offence under Sections
498-A, 323, 504, 506, 354 I.P.C. and Sections 3/4 Dowry
Prohibition Act, at Police Station-Kotwali Dehat, District-
Mirzapur against opposite party no. 2 and his other family
members namely Kaushlendra Pratap Singh, Suman Singh and
Shivam Singh @ Banti making allegations inter-alia of her
harassment and torture by the accused persons adopting
different modus-operandi as well as demand of additional
dowry. In the F.I.R., it is also alleged that on account of non-
fulfillment of their demand of dowry, she was ousted from her
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matrimonial home on 22.06.2017. After culmination of

investigation, charge-sheet dated 24.01.2018 has been
submitted against all the accused persons named in the F.I.R.
dated 30.06.2017. The said charge-sheet was challenged by
the accused persons including opposite party no. 2 by filing an
Application under Section 482 Cr.P.C. No. 929 of 2019, in which
the matter was referred to mediation and conciliation centre
vide order dated 10.01.2019 but the mediation between the
parties concerned has failed. The applicant no. 1, in addition to
F.I.R. dated 30.06.2017, also filed a Criminal Misc. Case No. 64
of 2018, under Section 125 of Cr.P.C. before the Principal
Judge, Family Court, Mirzapur which was decided ex-parte by
the Family Court vide order dated 11.01.2021 and the opposite
party no. 2 (husband of applicant no. 1) was directed to pay a
sum of Rs. 4,000/- per month to his wife (applicant no. 1) until
she gets remarried. Thereafter, opposite party no. 2 gave an
application before the Higher Police Officials making allegation
of bigamy against his wife-Smriti Singh @ Mausami/applicant
no.1. The said application was thoroughly investigated by the
Circle Officer Sadar, District Mirzapur and allegations of bigamy
etc. against the applicant no. 1 was found false. Accordingly,
inquiry report dated 06.01.2021 was submitted by Circle
Officer Sadar, Mirzapur to Superintendent of Police, Mirzapur.
After that the complainant/opposite party no. 2 filed a
complaint dated 20.09.2021 against the applicants as well as
against Mahant Singh @ Raghvendra Singh, Jhallar Singh,
Vimla Devi, Ramjit Singh and six-seven other unknown persons
for the alleged offence under Sections 494 and 109 I.P.C.
making allegations inter-alia that the applicant no. 1-Smriti
Singh @ Mausami Singh had sanctified her second marriage on
03.09.2017 with Mahant Singh @ Raghvendra Singh s/o Jhallar
Singh r/o Village Bhikaripur, Police Station Kachwa, District
Mirzapur in the house of Ramjit Singh situated in District
Varanasi in accordance with Vidhiwat Hindu Dharm Shastra
and she is living with her second husband without taking
divorce from him. The learned Magistrate, after recording the
statement of the complainant under Section 200 Cr.P.C. and his
witnesses namely Kaushlendra Pratap Singh and Suraj Kumar
Rai as PW-1 and PW-2 respectively, summoned the applicants
as well as other co-accused persons under Sections 494/109
I.P.C. vide order dated 21.04.2022, which is the subject matter
of challenge in the present application.
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4-Assailing the impugned summoning order dated 21.04.2022,

main substratum of argument of learned counsel for the
applicants are as under:-

i-The applicants have been falsely implicated in this case. The

complaint dated 20.09.2021 of opposite party no. 2 is nothing
but a counter-blast case against applicants on account of F.I.R.
dated 30.06.2017 lodged by applicant no. 1 against opposite
party no. 2 and his family members, order dated 11.01.2021
passed by Family Court on an application under Section 125
Cr.P.C. of applicant no. 1 and to nullify the enquiry report dated
06.01.2021 of Circle Officer Sadar, District Mirzapur.

ii-Much emphasis has been given by contending that the

allegations levelled against the applicants are wholly false and
based on concocted facts. The alleged second marriage of the
applicant no. 1-Smriti Singh @ Mausami with Mahant Singh @
Raghvendra Singh has been vehemently denied.

iii-There is no act or evidence to prove the second marriage of

applicant no. 1. Referring to the contents of the complaint
dated 20.09.2021 and statements under Section 200 and 202
Cr.P.C., it is also argued that even 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 applicant no. 1.

iv-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 and109 I.P.C. is made out
against the applicants.

v-The bald allegation of second marriage has been levelled

against applicant no.1 without any cogent material admissible
in evidence.

vi-In the complaint, the complainant has mentioned that he

has appended the photograph of the alleged second marriage
of applicant no. 1 with Mahant Singh @ Raghvendra Singh, but
in the said photograph bride's face is not visible as bride's face
is completely covered with a veil, hence, it cannot be
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presumed that the said photograph relates to the second

marriage of applicant no.1. It is also pointed out that neither
negative nor certificate under Section 65B(4) of the Indian
Evidence Act has been filed by the complainant and source of
photograph has also not been mentioned by the complainant
in the complaint.

vii-On the strength of aforesaid arguments, lastly it is

submitted that criminal proceeding of this case against the
applicants is nothing but a malicious prosecution, which is
abuse of process of the Court and is liable to be quashed.
Learned counsel for the applicants in support of his arguments
placed reliance upon the following judgments of the Apex
Court:-

(a) Bhaurao Shankar Lokhande & Anr. vs. State of Maharashtra

and Anr., AIR 1965 SC 1564.

(b) Priya Bala Ghosh vs. Suresh Chandra Ghosh, (1971) 1 SCC
864.

(c) Gopal Lal vs. State of Rajasthan, (1979) 2 SCC 170

5-Learned A.G.A. appearing on behalf of the State of U.P.

submits that the F.I.R. dated 30.06.2017 lodged by applicant
no. 1 was properly investigated and the allegations against the
opposite party no. 2 and his family members were found
correct, therefore, charge-sheet dated 24.01.2018 was
submitted against them. He also submits that so far as the
allegation of bigamy against applicant no. 1 is concerned, the
same was also properly investigated by the Circle Officer
Sadar, District Mirzapur on the application of the complainant
and the said allegation of second marriage of applicant no. 1
with Mahant Singh @ Raghvendra Singh was found false and
accordingly, the inquiry report dated 06.01.2023 was submitted
to Superintendent of Police, Mirzapur.

6-Learned counsel appearing on behalf of the complainant

opposed the submissions of learned counsel for the applicants
by contending that the witnesses Suraj Kumar Rai and
Kaushlendra Pratap Singh have seen the second marriage of
applicant no. 1 with Mahant Singh @ Raghvendra Singh and
photograph of applicant no. 1 with Mahant Singh @
Raghvendra Singh was also filed along with the complaint but
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he did not dispute the other factual aspect of the matter

argued on behalf of the applicants as noted above.

7-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.

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.”

8-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.

9-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
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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.

10-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.

11-Having heard the submissions of learned counsel for the

parties and perusing the record, I find that at the initial stage
when this case was filed, this Court vide order dated
05.09.2022 had granted three weeks' time to the
complainant/opposite party no.2 to file counter affidavit, but
no counter affidavit has been filed by the complainant. I also
find that the complainant-Satyam Singh and witness namely
Kaushlendra Pratap Singh are son and father and they are also
accused in the F.I.R. dated 30.06.2017, lodged by applicant no.
1. The witness Suraj Kumar Rai is also relative of the
complainant. The application of the complainant with same
allegation of second marriage against the applicant no. 1 was
also investigated by the police officials and the allegation was
found false. So far as the second marriage of applicant no. 1 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
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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 applicants as the allegation of second marriage
is a bald allegation without corroborative materials. So far as
the alleged photograph is concerned, this Court is of the view
that photograph is not sufficient to prove the factum of
marriage, especially when the same are not proved on record
in accordance with the Evidence Act. Where marriage is
disputed, it is not enough to find that marriage took place
leaving it to be presumed that rites and ceremonies necessary
to constitute a legal marriage were performed. 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 it's face
value, the basic ingredients to constitute an offence under
Section 494 read with section 109 of I.P.C. are lacking, hence,
no offence is made out against the applicants.

12-Here it would be apposite to quote some relevant

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

12.1-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."
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12.2-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;

(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
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the accused and with a view to spite him due to private and
personal grudge."

12.3-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 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."

12.4-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."

12.5- 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
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10

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."

12.6-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 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."

13-On the aforesaid discussion, this Court is of the view that

the criminal proceedings against the applicants initiated by
opposite party No. 2 is nothing but a malicious prosecution
with an ulterior motive, which is clear abuse of process of the
Court. Impugned summoning order dated 21.04.2022 of this
case is not sustainable. This Court under the facts and
circumstances of this 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, if criminal proceeding is
allowed 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 against the
applicants is liable to be quashed.

14-As a fallout and consequence of aforesaid discussion,

impugned summoning order dated 21.04.2022 and further
proceedings of Complaint Case No. 2513 of 2021 (Satyam
Singh vs. Smriti Singh) against the applicants are hereby
quashed.

15-Accordingly, the present application under Section 482

Cr.P.C. stands allowed.
Order Date :- 19.9.2023
Saurabh