JUDGMENT Hon'ble Mr. Justice P.K. Saikia 1. In this revision petition, the judgment & order dated 02.07.2004 passed by the Judicial Magistrate, 1st Class, Udaipur, Tripura (S) in Case No. GR. 91/03 convicting accused Krishna Kanta Nag under Section 494 I.P.C and sentencing him to suffer 3 years Rigorous Imprisonment and to pay a fine of Rs. 5,000/- for the aforesaid offences as well as the judgment dated 15.10.2004 passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 23(3) of 2004, partly affirming the aforesaid judgment of the Trial Court have been challenged. I have heard arguments advanced by Mr. A.C. Bhowmik, learned senior counsel assisted by Mr. D.C. Roy, learned counsel, appearing for the revision-petitioner and Mr. R.C. Debnath, learned Special Public Prosecutor representing the State of Tripura. 2. The facts, leading to filing of this revision petition, in brief, are that one Smt. Ratna Nag was married by accused Krishna Kanta Nag on 10.09.1993 as per Hindu Rites and Customs and after the marriage, she started living with accused Sri Krishna Kanta Nag as husband and wife. However, their marriage soon ran into rough weather as accused Krishna Kanta Nag and other relatives started torturing on Smt. Ratna Nag demanding dowry. Worse still, they ultimately forced her to take shelter in her paternal house. 3. In the mean time, informant came to learn that accused Shri Krishna Kanta Nag again married one Smt. Supriti Nag (Sarkar) without obtaining consent from his first wife and started living with her as husband and wife as well. On the above allegations, a complaint was filed before the Chief Judicial Magistrate, South Tripura, Udaipur. It is learnt that learned Judicial Magistrate on invoking the power U/s 156 Cr.PC, forwarded the complaint to the O.C., R.K. Pur Police Station for doing needful in accordance with law. 4. On receipt of the said complaint, police treated it as an FIR, registered a case thereon under Section 494 I.P.C vide R.K. Pur P.S. Case No. 88 of 2003 and ordered an investigation into the allegation. In due course, Police laid a charge sheet before the Chief Judicial Magistrate contending that accused Krishna kanta Nag prima facie committed an offence under Section 494 I.P.C. In respect of Smt. Supriti Nag, Police submitted Charge sheet under Section 109 read with Section 494 I.P.C. 5. In due course, Police laid a charge sheet before the Chief Judicial Magistrate contending that accused Krishna kanta Nag prima facie committed an offence under Section 494 I.P.C. In respect of Smt. Supriti Nag, Police submitted Charge sheet under Section 109 read with Section 494 I.P.C. 5. In course of time, learned Trial Court framed charge under Section 494 I.P.C against the accused Krishna kanta and also framed charge under Section 109 read with Section 494 I.P.C. against Smt. Supriti Nag and charges, so framed,on being read over and explained to accused persons, they pleaded not guilty and claimed to be tried. On completion of the trial, Learned Trial Court acquitted accused Smt. Supriti Nag from the offence under Section 109 read with Section 494 I.P.C. 6. However, Trial Court convicted accused Krishna kanta Nag under Section 494 I.P.C and sentenced him to punishment as aforesaid. On an appeal being preferred, the learned Sessions Judge affirmed the conviction U/s 494 IPC recorded against the accused /appellant. But he reduced sentence, imposed, from 3 years to 6 months and fine was, however, increased to Rs. 10,000/- and in default. he was directed to suffer imprisonment for another 3 months. 7. Still being aggrieved, the convict-petitioner preferred this revision alleging that the judgments of the Courts below are perverse, illegal and without jurisdiction. In order to buttress such a claim, it has been contended that there is no iota of evidence on record to show that a marriage between Krishna Kanta Nag and Smt. Supriti Nag had ever been solemnized so as to attract the provision of section of 494 IPC. 8. It is also his case that the alleged the first marriage between Krishna Kanta Nag and Smt. Ratna Nag has not at all been established although under the law, the prosecution has no choice but to prove very firmly the essentials of both the marriages aforesaid, more so when the accused set up the plea of total denial, and more so, when parties to the marriage in question are admittedly governed by the Hindu law. 9. In spite of such a state of affairs, the Trial Court held the accused guilty of offence U/s 494 IPC and learned first Appellate Court too was pleased to affirm such a finding as far as conviction U/s 494 IPC is concerned. 9. In spite of such a state of affairs, the Trial Court held the accused guilty of offence U/s 494 IPC and learned first Appellate Court too was pleased to affirm such a finding as far as conviction U/s 494 IPC is concerned. Therefore, the findings of the Trial Court as well as first Appellate Court are, as stated above, perverse and illegal and are liable to be set aside by this Court in exercise of its revisional jurisdiction-argue learned senior counsel for the accused/petitioner. 10. In that connection, learned senior counsel for the petitioner has referred to the decision of Hon'ble Supreme Court in the case of Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh reported in. 11. In the case Smt. Priya Bala Ghosh (supra), Hon'ble Supreme Court deals with the matter relating to offence under Section 494 I.P.C and held as follows: 15. Again in interpreting the word "solemnize" in Section 17 of the Act, it was stated: The word 'solemnize' means in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form, according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential for the Purpose of Section 17 of the Act, that the marriage to which Section 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 them ceremonies prescribed by law or approved by any established custom. From the above quotations it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties, it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract Section 494 I.P.C. Again in order to hold that the second marriage has been solemnized so as to attract Section 17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and-in due form. 16. 16. In the said decision this Court further considered the question whether it has been established that with respect to the alleged second marriage the essential ceremonies for a valid marriage have been performed. After referring to the passage in Mulla's Hindu Law, 12th Edn. at page 615 dealing with the essential ceremonies which have to be performed for a valid marriage, this Court, on the evidence held that the prosecution had neither established that the essential ceremonies had been performed nor that the performance of the essential ceremonies had been abrogated by the custom governing the community to which the parties belonged. In this view it was held that the prosecution in that case had failed to establish that the alleged second marriage had been performed in accordance with the requirement of Section 7 of the Act. The effect of the decision, in our opinion, is that the prosecution has to prove that the alleged second marriage had been duly performed in accordance with the essential religious rites applicable to the form of marriage gone through by the parties and that the said marriage must be a valid one according to law applicable to the parties. 12. Learned senior counsel has also referred me to a decision of Allahabad High Court in the case of Smt. Raj Kumari and another v. Smt. Kalawati and another reported in 1992 CRI. L.J. 1373. In Para 17 and 18, the Hon'ble Supreme Court held as follows: 17. In the instant case the revisional Court had itself come to the conclusion that one of the essentials of the customary marriage had not been performed and the marriage was thus not a valid marriage. The implication of this finding is that if the earlier spouses were excluded, the second marriage would still not be valid as an essential requirement of the said marriage had not been performed. 18. The Additional Sessions Judge, who had disposed of the appeal, had not recorded the finding that the second marriage between the applicants is void as both of them had their spouse living at the time of marriage. Their marriage had been found to be void by reason of the fact that one of the essential requirements of the marriage had not been performed. Their marriage had been found to be void by reason of the fact that one of the essential requirements of the marriage had not been performed. The marriage, thus, having not taken place at all between the applicants, they cannot be held guilty of having committed an offence under Section 494, I.P.C. 13. On the other hand, Mr. R.C. Debnath, learned Special P.P., appearing for the State-respondent has contended that the judgment of Trial Court as well as the judgment of Sessions Judge invite no interference from this Court as none of the aforesaid judgments suffers from any infirmity whatsoever and this Court in exercise of its revisional jurisdiction could/ should not set aside those judgments as prayed for by the accused/petitioner. He, therefore, urges this Court to dismiss this revision petition instead. I have perused the materials on record having regard to arguments advanced by the parties. 14. It is seen from above that the accused/petitioner has set up the plea of total denial to the charge, levelled against him. The judgment of the learned Trial Court passed in Case No. GR. 91/03 as well as the judgment of the learned Sessions Judge passed in Criminal Appeal 23 (3) of 2004 makes such a position very clear. Prosecution is, therefore, duty bound to prove not only the essentials of alleged 2nd marriage but it is also obligatory on its part to show that a valid first marriage did occur between the accused petitioner and Smti Ratna Nag as well. 15. However, scanning the materials on record further, I have found that there is absolutely no evidence on record to show that the accused petitioner had ever performed essentials of valid Hindu marriage to marry Smt. Supriti Nag, the alleged second wife of the accused/petitioner, although there was no quarrel between the parties hereto over the fact that they are all governed by Hindu law. 16. More important, even in respect of the alleged marriage between the accused /petitioner and Smti Ratna Nag, there is no evidence at all to show that the accused had ever married Smti Ratna Nag in accordance with Hindu rites and customs. Such revelation very forcefully demonstrates that prosecution could not at all prove that the accused/petitioner married another woman during the subsistence of his first marriage. Such revelation very forcefully demonstrates that prosecution could not at all prove that the accused/petitioner married another woman during the subsistence of his first marriage. These are also the testimony to the fact that prosecution could not at all prove the charge U/s 494 IPC, levelled against the accused/petitioner. 17. Here, it may be stated that learned Special Public Prosecutor appearing for the State has pointed out that while being examined under Section 313 Cr.P.C, the accused-petitioner admitted having married one Smt. Ratna Nag. During such examination, he admitted that he subsequently married one Smt. Supriti Nag as well. According to learned Special Public Prosecutor, such admissions, in the facts and circumstances present case, only serve to show that the accused petitioner got married for second time during the subsistence of his first marriage with Smt. Ratna Nag. 18. On perusal of record, I have found that in his statement under Section 313 Cr.P.C., the accused/petitioner admitted as aforesaid although in all the previous stages of the same proceeding, he denied to have married women aforesaid. Here, it may be noted that in civil disputes, admission has a huge role to play in proving the claims of the parties. But then, in criminal cases, law is something different since it is a settled proposition of law that prosecution is to prove its case on the basis of its own evidence. 19. Therefore, unless prosecution proves its case on its own, it cannot erect the edifice of its case on the statement of the accused person, made under Section 313 Cr.P.C alone, same being not evidence as understood in legal parlance. However, implication of such an admission would be different altogether when the prosecution is found to have proved its case on its own-- since ---in such a case, an admission, made by the accused person U/s 313 Cr.P.C, may help the prosecution to fortify its claim in a particular case more and more. 20. In this connection, we may gainfully peruse the decision of Hon'ble Supreme Court of India in the case of Kanwal Ram and others vs. Himachal Pradesh Administration reported in AIR 1966 SC 614 . In aforesaid case, Hon'ble Supreme Court held as follows:- In a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. In aforesaid case, Hon'ble Supreme Court held as follows:- In a bigamy case, the second marriage as a fact, that is to say, the essential ceremonies constituting it must be proved. Empress vs. Pitambar Singh ILR 5 Cal 566(FB), Empress of India vrs. Kallu ILR -5 All 233, ARCHBOLD, Criminal Pleading Evidence and Practice (35th Ed.) Aritcle 3796. In Kallu's case, ILR 5 ALL 233, and in Mories vrs. Millar, (1767) 4 Burr 2057 : 98 ER 73, it has been held that admission of marriage by the accused is not the evidence of it for the purpose of proving marriage in an adultery or bigamy case.... 21. The above decision of Hon'ble Supreme Court has appropriately covered the instant case as well. Such a decision has also adequately replied the contention of the learned Special Public Prosecutor that prosecution case, here, cannot be brushed aside particularly in view of the admission of guilt which the accused/ petitioner made while being examined under Section 313 Cr.P C. Admission, so made by the accused, is also found unequal to the task of saving the sinking sail of the prosecution. 22. Even otherwise, the case under challenge is found not maintainable for it not being in conformity with law. A bare perusal of Section 198(1) Cr.P.C. reveals that unless there is a complaint, filed by aggrieved person or under certain circumstances by some other persons, so permitted there- under, no Court shall take cognizance of offences under Chapter XX of the Indian Penal Code. 23. For ready reference, the provision of Section 198 (1) Cr.P.C. is reproduced below: 198. A bare perusal of Section 198(1) Cr.P.C. reveals that unless there is a complaint, filed by aggrieved person or under certain circumstances by some other persons, so permitted there- under, no Court shall take cognizance of offences under Chapter XX of the Indian Penal Code. 23. For ready reference, the provision of Section 198 (1) Cr.P.C. is reproduced below: 198. Prosecution for offences against marriage.- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence; Provided that - (a) Where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) Where such person is the husband, and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf; (c) Where the person aggrieved by an offence punishable under [section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister (or, with the leave of the Court, by any other person related to her by blood, marriage or adoption) 24. In this context, it may be stated that the terms "Police report" and "Complaint'' are not synonymous terms. Rather they have different meanings with area of operation, which are different altogether. To appreciate those terms well, I find it necessary to reproduce the same herein under:- 2.(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. To appreciate those terms well, I find it necessary to reproduce the same herein under:- 2.(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation. - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; (r) "Police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173; 25. A conjoint reading of sub section 2.(d), sub section 2 (r) and Section 198 (1) Cr.PC, clearly shows that a Court cannot take cognizance of an offence U/s 494 IPC--- unless--- a complaint has filed --or/and ----unless certain other conditions stated therein are fulfilled. Being so, a police report-- within the meaning of Section 173(2) Cr.PC ----no way enable a Court to take cognizance of such an offence U/s 494 IPC same being an offence, covered by Chapter XX of the IPC. 26. Coming back to the instant case, I have found that Smt. Ratna Nag, the alleged wife of the accused-petitioner, filed a complaint before the learned jurisdictional C.J.M and learned C.J.M, on invoking the power conferred on it by law (Section 156 (3) Cr.PC), sent it to the O.C., R.K. Pur Police Station with the further direction to do the needful. 27. The concerned O.C. on receipt of the same, registered a case there on under Section 494 IPC against persons, named therein, conducted investigation and thereafter, he submitted charge sheet against the accused Sri Krishna Kanta Nag and Smt. Supriti Nag alleging that they had committed offence under Section 494 I.P.C. and forwarded them to Court to stand trial. 28. On receipt of such a police report under Section 173(2) Cr.P.C., the learned Trial Court framed charge under the provisions of law as stated above and conducted a trial and on conclusion of the trial, it acquitted accused Smt. Supriti Nag from the offence under Section 109 read with Section 494 I.P.C. but convicted the accused- petitioner herein under Section 494 I.P.C. and sentenced him as aforesaid. On an appeal being preferred, learned Sessions Court too affirmed the conviction, however, modified sentence as aforesaid. 29. Such revelations unmistakably demonstrate that the learned Trial Court took cognizance of offence U/s 494 IPC in gross violation of dictum of law contained in Section 198 (1) Cr.P.C and such illegal taking of cognizance on the part of Trial Court made all subsequent order(s) and judgment(S) void, illegal and without any jurisdiction as the case aforesaid was founded not on a complaint as required under Section 198(1) Cr.P.C but was premised illegally on Police report instead. 30. Here, it is worth-noting that a police report too can be treated as a complaint under certain circumstances. But for that purpose, such a police report must come within the purview of explanation to the Section 2(d) Cr.P.C. Said explanation makes it more than clear that when in investigating a case containing allegation about the commission of a cognizable offence, Police encounters only with the fact(s) relatable to non cognizable offence, then police report so made after such an investigation would be treated as a complaint. 31. But in our instant case, right from the day one the allegations against the accused persons were that they had committed an offence U/s 494 IPC which was a non cognizable one and as such, due to embargo imposed by Section 155 Cr.P.C, the Police was not authorized to investigate same. Being so, the charge-sheet submitted in Case No. GR. 91/03 can never/ever be treated as a complaint within the meaning of explanation to Section 2(d) Cr.P.C. Being so, explanation to the Section 2(d) Cr.P.C could play no role in retrieving an otherwise gone the prosecution case. 32. In this context, we can gainfully peruse the decision of Hon'ble Allahabad High Court in the case of Surajlal Jaiswal vrs. State of Uttar Pradesh and another reported in 2006 Cr.L.J.3323 wherein the Hon'ble Allahabad High Court held as follows:- 7. 32. In this context, we can gainfully peruse the decision of Hon'ble Allahabad High Court in the case of Surajlal Jaiswal vrs. State of Uttar Pradesh and another reported in 2006 Cr.L.J.3323 wherein the Hon'ble Allahabad High Court held as follows:- 7. Thus, it clearly lays down that complaint should be made by the aggrieved person to the Magistrate, who shall follow the procedure laid down in Section 200 Cr.P.C. onwards and it does not include a police report, i.e. report under Section 173(2) Cr.P.C. No doubt, in the explanation to Section 2(d) a report by police officer, which discloses a non-cognizable offence, shall be deemed to be a complaint but this explanation is not applicable in cases under Chapter XXII of the Indian Penal Code. Thus, there was no complaint in the present case and charge sheet itself is not maintainable. 33. The above decision of Hon'ble Allahabad High Court fortify more and more my conclusion that the case under consideration is also bad as there was no complaint within the meaning of section 2 (d) of the Cr.P C before the Court to take cognizance of offence u/s 494 of the CrPC as required U/s 198(1) of the CrPC. 34. In view of what I have discussed herein before and what have emerged there-from, I am to hold that the judgment & order dated 02.07.2004 passed by the Judicial Magistrate, 1st Class, Udaipur, Tripura (S) in Case No. GR. 91/03 and the judgment dated 15.10.2004 passed by the learned Sessions Judge, South Tripura, Udaipur in Criminal Appeal No. 23 (3) of 2004 are illegal, void and without jurisdiction and as such, they are liable to be set aside by this Court exercising revisional jurisdiction. 35. Accordingly, both the judgments aforesaid, are set aside on acquitting the accused/ petitioner of offence U/s 494 IPC on setting him at liberty forthwith. Fine if realized be refunded immediately. Return the LCR.