JUDGMENT D.D. Seth, J. - This reference has been made to this Court by the learned Additional Sessions Judge, Bareilly, and arises out of proceedings under section 494 read with section 109, I. P. C. 2. The facts of the case, briefly put, are that one Smt. Ramkali, on 28th October 1965, filed a complaint before the learned Magistrate 1st class, Bareilly, stating therein that she was the married wife of Rajju Gir having been married to him six years earlier according to Hindu rites. Her complaint was that three years before the filing of the complaint her husband had turned her out of the house and had married another woman, Smt. Munni Devi, the applicant, who is her own cousin sister, Thus Smt. Ramkali alleged that her husband Rajju Gir had committed an offence punishable under section 494, I. P. C., and her case against Munni Devi was that since she abetted the offence committed by Rajju Gir she was also guilty under section 4-94 read with section 109, I. P. C. 3. The learned Magistrate examined three witnesses, namely Smt. Ramkali, Sri Nathu Lal and Dhakan Lal, on behalf of the prosecution under section 25 -, Criminal Procedure Code. Smt. Ramkali, the complainant in her statement, made before the learned Magistrate, stated that she was married to Rajju Gir according to Hindu rites and the marriage was performed by Durga Dutt Pandit. She further stated that at the time of her marriage `Bhanwren waigaira pari theen.' She further stated that three years before the filing of the complaint she had been turned out by her husband from his house and that as long as she lived in her husband's house he treated her very badly and forcibly took away a few things belonging to her. She also stated that Smt. Munni Devi was her cousin sister and that Rajju Gir had married her in the year when the complaint was filed. The second marriage according to Smt. Ramkali was also performed according to Hindu rites. She stated that the second marriage was also performed `Bhanwren waigara parkar hui.' Nathu Lal and Dhakan Lal, the other two witnesses, produced on behalf of the complainant, corroborated the statement of Smt. Ramkali and stated that both the marriages of Rajju Gir were performed according to Hindu rites and in both the marriages `Bhanwren parin theen.' 4. She stated that the second marriage was also performed `Bhanwren waigara parkar hui.' Nathu Lal and Dhakan Lal, the other two witnesses, produced on behalf of the complainant, corroborated the statement of Smt. Ramkali and stated that both the marriages of Rajju Gir were performed according to Hindu rites and in both the marriages `Bhanwren parin theen.' 4. The applicant Munni Devi denied all the allegations of Smt. Ramkali. Before the learned Magistrate 1st class it was alleged on behalf of Munni Devi that no prima facie case had been made out against her by the prosecution on the evidence on the record. 5. The learned Magistrate, however, did not agree and on 4th May 1966 framed a charge against the applicant for an offence punishable under section 494 read with section 109, I. P. C. Against the framing of the charge by the learned Magistrate Smt. Munni Devi preferred a revision which was heard by the learned Additional Sessions Judge of Bareilly, who has made the present reference to this Court. 6. I have heard Sri A. D. Giri, the learned counsel for the applicant, Munni Devi, and Sri K. C. Dhullia, the learned brief holder appearing for the State. Section 251 of the Criminal Procedure Code deals with procedure in warrant cases and is contained in Chapter XXI of the Code. Section 251 reads as follows : "In the trial of warrant cases by Magistrates, the Magistrate shall,- (a) in any case instituted on a police report follow the procedure specified in section 251 A; and (b) in any other case, follow the procedure specified in the other provisions of this Chapter." 7. Since the present case against the applicant was started on a complaint filed by a private person, namely Smt. Ramkali, the procedure prescribed in section 251 (b) of the Code read with sections 252 to 269, Criminal Procedure Code, had to be followed by the learned Magistrate, Section 252 of the Code deals with evidence for prosecution and under that section the Magistrate is required `to hear the complainant and take all such evidence as may be produced in support of the prosecution'. Section 253 of the Code deals with discharge of the accused and says: "(1) If upon taking all the evidence referred to in section 252 and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. 2. .................................." Section 254 deals with framing of the charge when an offence apears proved and reads as follows: "If when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused." 8. Therefore, the Magistrate before he decides to frame a charge against an accused has first to decide whether a prima facie case has been made out against the accused. If in his opinion no prima facie case had been made out he has to discharge the accused under the provisions of section 253 of the Code but if, on the other hand, he is of the opinion, after recording evidence and examining the witnesses, that there is a ground for presuming that the accused has committed an offence triable under Chapter XXI of the Code which he is competent to try and which, in his opinion could be adequately punished by him, it is his duty to frame a charge in writing against the accused. 9. 9. Reading the two sections, namely sections 253 and 254 of the Code, together, the Magistrate is required by the Code to analyse the evidence produced before him under section 252 of the Code on behalf of the prosecution and if he finds `that no case against the accused has been made out which, if unrebutted, would warrant his conviction' it is his duty to discharge the accused under the provisions of sub-section (1) of section 253 of the Code but if the evidence already recorded by the Magistrate under section 252 of the Code makes out a prima facie case against the accused the Magistrate is required to proceed to frame a charge against the accused for an offence which is made out by the evidence on record. The Magistrate is, therefore, bound to analyse the evidence which is before him before proceeding to frame a charge against the accused. In the instant case the only evidence before the Magistrate was that Rajju Gir had married twice according to Hindu rites and in both the marriages `Bhanwren parin theen'. According to Mulla's Hindu law two ceremonies are essential to the validity of a Hindu marriage whether the marriage is performed in the Brahma form or Asura form, namely, (1) taking of seven steps by the bridegroom and the bride jointly before the sacred fire. 10. Hindu marriages can also be performed in other manner if they are allowed by the custom of the caste to which the parties belong. In the instant case there was no evidence produced by the prosecution before the Magistrate that an invocation before the sacred fire had taken place and the bride and the bridegroom had taken jointly seven steps before the sacred fire. The only evidence before the learned Magistrate was that in the two marriages of Rajju Gir `Bhanwren parin theen.' This evidence was not sufficient to make out a prima facie case of bigamy either against Rajju Gir or against the applicant Munni Devi. 11. In a case under section 494, I. P. C., both the alleged marriages of a person have to be proved as a fact. 11. In a case under section 494, I. P. C., both the alleged marriages of a person have to be proved as a fact. Section 494, I. P. C., reads as follows:- "Whoever having husband or wife living, marries in any case in which such marriage is valid 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. Explanation ........................" 12. The words `whoever..... marries....' occurring in section 494, I. P. C., mean `whoever marries validly'. `If the marriage is not valid then the person charged for bigamy cannot be convicted under section 494, I. P. C., because it is no marriage in the eye of law. 13. Section 17 of the Hindu Marriage Act, 1955 provides that any marriage between two Hindus soleminzed after the commencement of "this Act" is void if at the date of such marriage either party has a husband or wife living and that the provisions of sections 494 and 495 I. P. C. shall apply accordingly. The word `solemnize' in connection with a marriage, means `to celebrate the marriage with proper ceremonies and in due form' according to the meaning of the word given in Shorter Oxford Dictionary. Hence if a marriage was not performed with proper ceremonies and in due form it cannot be said to be solemnized. To convict an accused under section 494, I. P. C., it is necessary for the prosecution to prove, therefore, that the two marriages of the accused were celebrated and solemnized with proper ceremonies and in due form. The mere fact that certain ceremonies took place at the time of the alleged two marriages cannot make those ceremonies mean the celebration or performance with proper ceremonies and in due form, It was held by the Supreme Court in Kanwal Ram v. Him. Pradesh Administration, 1966 Crl. L.J. 472 (1) "In biganmy case the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. Where, therefore, in prosecution for offences under Ss. Pradesh Administration, 1966 Crl. L.J. 472 (1) "In biganmy case the second marriage as a fact, that is to say, the essential ceremonies constituting it, must be proved. Admission of marriage by the accused is not evidence of it for the purpose of proving marriage in an adultery or bigamy case. Where, therefore, in prosecution for offences under Ss. 494/109, I. P. C. the evidence of the witness called to prove the marriage ceremonies, showed that the essential ceremonies had not been performed, the conviction of the accused persons on statement of the alleged bridegroom that he had sexual relationship with the alleged bride and on admission of the accused in a written statement that the parties married after the first marriage was dissolved, was not justified." It was held by the Supreme Court in Bhauran v. State of Maharasthra, 1965 Crl. LJ 544 as follows : "Section 17 of the Hindu Marriage Act makes the marriage between two Hindus void if two conditions are satisfied: (i) the marriage is solemnised after the commencement of the Act, and (ii). at the date of such marriage, either party had a spouse living. The word `solemnise' means, in connection with a marriage, `to celebrate the marriage with proper ceremonies and in due form'. It follows, therefore, that unless the marriage is `celebrated or performed with proper ceremonies and due form' it cannot be said to be `solemnised'. It is, therefore, essential, for the purpose of S. 17 of the Act, that the marriage to which S. 494, I. P. C., applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom ................................. Prima facie, the expression `whoever. ......... marries' in S. 494, Penal Code 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 the law applicable to the parties, no question of its being void by reason of its taking place during the 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. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the 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. The bare fact of a man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. " Section 7 of the Hindu Marriage Act, 1955 deals with ceremonies for a Hindu marriage and says : "(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." 14. In the case before me the parties are Hindus. There was no evidence before the Magistrate that there was any invocation before the sacred fire or that the bride and the bridegroom, in both the marriages, took seven steps jointly before the sacred fire. The only evidence before the Magistrate in regard to both the marriages of Rajju Gir was that `Bhanwren Parin theen.' This evidence was not enough to prove marriages of Rajju Gir. Unless the seventh step was taken jointly by the bride and the bridegroom before the sacred fire the marriage was incomplete. No presumption can be raised that the seventh step must have been taken at the time of two marriages. The fact had to be proved as a fact. It follows, therefore, that prima facie none of the two alleged marriages of Rajju Gir with Smt. Ramkali and Smt. Munni Devi applicant was proved, as is required by law and hence neither Rajju Gir nor the applicant, Smt. Munni Devi, can be said to have committed an offence punishable under section 494, I. P. C. 15. I agree with the referring court that section 109, I. P. C., comes into play only if the act abetted is committed in consequence of the abetment'. I agree with the referring court that section 109, I. P. C., comes into play only if the act abetted is committed in consequence of the abetment'. Since no offence under section 494, I P. C., was proved no prima facie case was made out against the applicant under section 109, I. P. C., also. 16. Sri K. C. Dhulia, the learned brief holder for the State, urged that the learned Magistrate had not completed the examination of all the witnesses which were sought to be produced on behalf of the prosecution and, therefore, an order quashing the charge framed against the applicant would be pre-mature does not appeal to me. The learned Magistrate could not frame a charge against the applicant unless he was satisfied that there was a prima facie case against her for an offence punishable under section 494, I. P. C. It was the alleged second marriage of Rajju Gir which was important for framing charge under section 494. I. P. C., against the applicant and the evidence before the learned Magistrate hopelessly failed to make out any case against the applicant under section 494, I. P. C. On the evidence which was before the learned Magistrate he could not but have discharged the applicant under the provisions of section 253 of the Criminal Procedure Code. The framing of the charge against the applicant by the learned Magistrate under section 494 read with section 109, I. P. C., on 4th May 1966 was not in accordance with law. 17. After having carefully gone through the orders passed by the courts below and after hearing the learned counsel for the parties I am of the opinion that the recommendation made by the learned Additional Sessions Judge of Bareilly must be accepted and I accept the same, and quash the charge framed against the applicant by the learned Magistrate 1st class, Bareilly, on 4th May 1966 for an offence punishable under section 494 read with section 109, I. P. C. and discharge the applicant.