The central legal point established in the judgment is the necessity to prove the validity of a second marriage and the essential ceremonies required for a valid marriage.

Anil Kumar Srivastava-II, J.

1. 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 vs. State of Jharkhand and Another (2009)14 SCC 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."

7. 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."

8. 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