JUDGMENT : 1. Respondents 1 and 2 in Crl. Appeal No. 617 of 2010 are the accused in C.C. No. 353 of 2007 on the file of the Judicial First Class Magistrate-II, Kannur for offences punishable under Sections 493, 494, 497, 418, 419, 498(A) r/w Section 34 IPC. Crl. R.P. No. 1007 of 2010 arises from C.C. No. 613 of 2005, which was filed on the basis of a complaint filed by the brother of the appellant. The parties are referred to as in Crl. Appeal No. 617 of 2010. 2. The appellant is the legally wedded wife of the first respondent and two children were born in that wedlock. During the subsistence of this marriage, he married the second respondent at Kadalayi Sree Krishna Temple by giving false name and address in order to conceal identity. On the basis of the complaint filed by the brother of the appellant, Crime No. 298 of 2005 was registered before the Valappattanam Police Station; but the final report was filed only against first respondent. Therefore, the appellant has filed the aforesaid complaint against both respondents 1 and 2 and their relatives. The learned Magistrate took cognizance only against respondents 1 and 2. Since both the cases were in respect of the same incident, the appellant filed a petition before the court below to exercise its powers under Section 210(2) of Cr.P.C. to club both the cases together. 3. The learned Magistrate, after enquiry, took the case on file against respondents 1 and 2 for the offences under Sections 419 and 494 IPC r/w Section 109 IPC respectively and discharge the other accused persons. On receipt of summons, respondents 1 and 2 appeared and were released on bail. During trial, PWs. 1 to 11 were examined and Exts.P1 and P2 were marked on behalf of the complainant. Charges were framed against respondents 1 and 2 and they pleaded not guilty to the charges framed against them. The learned Magistrate, after trial as per judgment dated 21.11.2009, acquitted respondents 1 and 2 on the ground that the offences alleged against them had not been proved. 4. The learned counsel for the appellant has contended that the court has acted illegally by violating the mandatory provision of Section 210(2) of Cr.P.C. in independently trying the police case and the complaint though both related to the same incident. 4. The learned counsel for the appellant has contended that the court has acted illegally by violating the mandatory provision of Section 210(2) of Cr.P.C. in independently trying the police case and the complaint though both related to the same incident. According to the learned counsel, it is to be looked into whether respondents 1 and 2 had influenced the police and there was clear collusion between them. He has also contended that many important witnesses were not questioned or included in the police charge. The court below ought to have found that there were ample evidence to prove the second marriage. The findings of the court below that there was no sufficient evidence regarding the ceremony undergone by respondents 1 and 2 is unfounded and unsustainable. Therefore, the appellant prays for setting aside the order of acquittal of accused in C.C. No. 353 of 2007. 5. The appellant is the de facto complainant who has moved a petition under Sections 419 and 494 r/w Section 34 of IPC. In this context, it is pertinent to examine Section 494 of IPC reads thus: “494. Marrying again during lifetime of husband or wife - 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.” There is exception to the effect that the above Section does not extent 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. Therefore, in effect, the de facto complainant has alleged the offence of bigamy against the accused/respondent No.1 stating that while the marriage between herself and the accused was subsisting, he contracted a second marriage. Therefore, Section 494 of IPC is attracted in this case. In order to prove the charge of bigamy, the complainant being the first wife has not only to prove that she is lawfully married the accused and that the accused has married for the second time. When the factum of second marriage is not proved, the charge of bigamy fails. This issue is discussed in detail in Lingari Obulamma vs. L. Venkata Reddy, AIR 1979 SC 848 . Here, both the pares are Hindus. So, as per Section 17 of the Hindu Marriage Act, any marriage between two Hindus solemnized after the commencement of the Act if at the date of such marriage either party has a spouse living would attract Sections 494 and 495 of IPC. But the word 'solemnized' means the marriage should be solemnized with proper ceremonies under Hindu Law. So, in order to attract Section 17 of the Hindu Marriage Act, the alleged second marriage shall be a valid marriage under the Hindu Law. Mere going through certain ceremonies is not enough when the essential ceremonies were not performed. The same has been reiterated in Bhaurao Shankar Lokhande vs. State of Maharashtra, AIR 1965 SC 1564 . 6. The sole question to be considered is whether the second marriage contracted by the accused with another lady is valid marriage as contemplated under Section 17 of the Hindu Marriage Act. The case of the de facto complainant is that the first accused married the de facto complainant on 24.01.1988 according to the Hindu Religious customs and ceremonies at Cherukunnu Annapoorneswari Temple. Out of that wedlock, two children were born. It is further alleged that during the subsistence of marriage, on 18.06.2015, the first accused married the second accused at Kadalayi Sreekrishna Temple. It is also alleged in the temple that accused Nos. 1 and 2 gave false name and address as Balakrishnan and Remya before the temple authorities to get their marriage solemnized. A3 to A12, who are the relatives of accused Nos. 1 and 2, assisted and encouraged them in committing the offence. The first accused was having illicit relationship with the second accused even prior to the marriage. 1 and 2 gave false name and address as Balakrishnan and Remya before the temple authorities to get their marriage solemnized. A3 to A12, who are the relatives of accused Nos. 1 and 2, assisted and encouraged them in committing the offence. The first accused was having illicit relationship with the second accused even prior to the marriage. Now, the second accused gave birth to a child of first accused. Though the police registered a case against the accused on the basis of the complaint filed by the brother of the complainant, charge sheet was filed only against the first accused. 7. After conducting an enquiry under Section 202 of Cr.P.C. the complaint was taken on file as against the first accused under Sections 419 and 494 IPC and under Sections 419 and 494, r/w Section 109 IPC as against the second accused. The complaint against other accused were dismissed and the case was proceeded against accused Nos. 1 and 2 alone. 11 witnesses were examined on the side of the de facto complainant as PWs. 1 to 11 and Exts.P1 and P2 were marked. After hearing both sides and questioning the accused under Section 313 Cr.P.C. the court below found that the accused were not guilty and accordingly they were acquitted. The court below found that there is absolutely no evidence against accused persons so as to convict them under Sections 419 and 494 of IPC. The specific allegation of PW-1 is that while her marriage was subsisting with A1, he got married to the second accused. So, the burden is heavy on the de facto complainant to prove the charge of bigamy as alleged against the accused persons. Over and above, she has to prove that the second marriage was a lawful marriage. PW-2, one Vijayan deposed that on 18.06.2005, when he went to Kadalayi Sreekrishna Temple, he saw A1 marrying another lady. According to him, the marriage was performed as per the Hindu Religious custom. A1 married the lady tying thali and garlanding her. There was lighted nilavilakku in the mandapam. After the marriage, both accused had gone around the mandapam for three times. PW-3, another witness named Balan, also deposed that he had witnessed the marriage of the accused which was taken place at Kadalayi Sreekrishna Temple. A1 married the lady tying thali and garlanding her. There was lighted nilavilakku in the mandapam. After the marriage, both accused had gone around the mandapam for three times. PW-3, another witness named Balan, also deposed that he had witnessed the marriage of the accused which was taken place at Kadalayi Sreekrishna Temple. According to him, there was a stage at the venue, lighed lamp was there in the stage and the accused exchanged rings and garlanded each other. PW-6 Biju, who is a neighbour of A2 and PW-8 Babu, the driver who took the marriage party from the house of A2 to Kadalayi Temple, denied having seen the first accused marrying A2. According to PW-11 Thankamani, she had seen A1 marrying A2. 8. PW-4, the Executive Officer of Chirakkal Kovilakam, has deposed that so many people used to get married from Cherukunnu Annapoorneswari Temple, that after the marriage the temple authorities obtained the signature of the parties to the marriage in the receipt book and that from the records available in the temple, it could be seen that A1 married the complainant Valsala on 24.01.1988. The relevant receipt showing the marriage of A1 with PW-1 was marked as Ext.P1. So, the marriage between the first accused and the de facto complainant is proved on production of Ext.P1 document. 9. PW-5, the Vazhipad Clerk of Kadalayi Sreekrishna Temple, deposed before court that on 18.06.2005, the accused got married from his temple. After the marriage, the accused signed in the receipt book from his cabin. He has further stated that at that time, the accused gave their names as Balakrishnan and Remya. But, during cross examination, he admitted that he had not seen the marriage directly. PW-9, the Village Officer of Valapattanam, has not supported the case of the prosecution. PW-10, the Head Constable, registered Crime No. 298 of 2005. 10. I have gone through the evidence adduced by the prosecution. In order to attract Section 419 IPC, the de facto complainant has to establish that accused Nos. 1 and 2 have cheated the temple authorities by giving false names to get their marriage registered. The temple authorities have no case that they have been cheated by the accused persons and they have not filed any complaint against the accused persons. In order to attract Section 419 IPC, the de facto complainant has to establish that accused Nos. 1 and 2 have cheated the temple authorities by giving false names to get their marriage registered. The temple authorities have no case that they have been cheated by the accused persons and they have not filed any complaint against the accused persons. Two private complaints were filed by the de facto complainant and the brother of the de facto complainant stating that by impersonation, the accused persons have entered into a contract of marriage and accordingly their name was registered falsely before the temple authorities. As per the version of PW-5, Kadalayi Sreekrishna Temple is a busy temple and that in certain days, 10-15 marriages were used to perform in that temple. Admittedly, he has no previous acquaintance with the accused and there was no specific reason for him to note the accused or to remember them. PW-5 has given evidence before court after three years of marriage and therefore, the evidence of PW-5 that he could identify the accused from the dock of the court as the person who signed in the receipt book on 18.06.2005 cannot be believed. Accordingly, the court below held that the ingredients as contemplated under Section 419 of IPC is not attracted in this case. 11. The next question to be considered is whether Section 494 IPC is attracted. It is true that the marriage between PW-1 and the first accused was proved as per Ext.P1 document. In order to attract Section 494 IPC, there must be an evidence to prove that the first accused has during the subsistence of the first marriage, contracted to marry another person. In Bhaurao Shankar Lokhande cited supra, it is held that unless the marriage is celebrated or performed with proper ceremonies and due form, it is not be said to be solemnized. In this context, it is profitable to extract Section 17 of the Hindu Marriage Act, 1955, which reads thus: “17. Punishment of bigamy - Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.” Therefore, mere admission by a person that he had contracted second marriage is not enough. The impugned marriage must have been solemnized that is, the marriage should have been celebrated or performed with proper ceremonies and in due form. Section 5 of the Hindu Marriage Act deals with conditions for a Hindu marriage and it reads thus: “5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage. (ii) at the time of the marriage, neither party:- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind. (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children. (c) has been subject to recurrent attacks of insanity. (iii) the bridegroom has completed the age of twenty-one years and the bride, the age of eighteen years at the time of the marriage. (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two. (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.” 12. Section 7 of the Hindu Marriage Act deals with ceremonies for a Hindu Marriage and it reads thus: “7. Ceremonies for a Hindu marriage - (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 saptpadi (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.” 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. In Kanwal Ram and Others vs. Himachal Pradesh Administration, AIR 1966 SC 614 , the Apex Court has held that in a case of bigamy, in the second marriage, as a fact, the essential ceremonies construing it must be proved. Admission of marriage by accused is not evidence of it for the purpose of proving marriage, in an adultery or bigamy case. Admission of marriage by accused is not evidence of it for the purpose of proving marriage, in an adultery or bigamy case. The same has been reiterated in P. Sathyanarayana and Others vs. P. Mallaiyah and Others, JT 1996 (8) SC 203. In that case, the accused admitted the second marriage at the time of charge and the Court held that such admission also did not absolve the prosecution to otherwise prove its case, that the marriage was performed in a regular way so as to visit the accused with penal consequences. The allegation against the accused is that A1 contracted to second marriage with the second accused. But nothing is stated in the complaint regarding the ceremonies performed by the parties to solemnize the marriage. It is true that it was stated in the complaint that the marriage was solemnized as per the Hindu religious customs and rites. Ext.P10 is the only receipt produced by PW-4 to establish that PW-1 got married to the first accused. Apart from that, no illustration was made in the complaint regarding the customary rites observed at the time of marriage by PW-1 to the first accused. In fact, the de facto complainant has not produced any document to show that the marriage between herself and the first accused subsists. PW-1 has cited witnesses to establish that the first accused married the second accused and those witnesses have witnessed the marriage also. PW-11 was deposed that he had participated the marriage and he witnessed the first accused marrying the second accused. He has not given any evidence regarding the performance of the ceremonies of the Hindu Marriage as contemplated under Section 7 of the Act. PWs. 2 and 3 also deposed regarding the ceremonies performed in the marriage. But, they have no consistent case regarding the ceremonies performed at the time of marriage. According to PW-2, there was lighted lamp in the mandapam. A1 tied a thali in the neck of a lady and they garlanded each other and both of them had gone around the mandapam for three times. PW-3 has deposed that he saw the accused exchanging rings and garlands. PW-3 has no case that he saw A1 tying thali in the neck of A2 or the accused going around the Mandapam. So, the evidence adduced by PWs. PW-3 has deposed that he saw the accused exchanging rings and garlands. PW-3 has no case that he saw A1 tying thali in the neck of A2 or the accused going around the Mandapam. So, the evidence adduced by PWs. 2 and 3 are not sufficient enough to prove that the customary ceremonies as required under Section 7 of the Act has been performed by the accused persons at the time of solemnization of their marriage. It is true that there would be different customs prevailing in different communities. But, nowhere it is stated as to what was the custom prevailing in the community of the de facto complainant as well as the accused persons. On evaluating the entire evidence, I find that the prosecution has failed to establish the existence of the valid marriage between the accused and PW-1 and also the second marriage contracted between accused Nos. 1 and 2. The most important and prime fact is that the prosecution has to establish that Section 7 of the Hindu Marriage Act is complied with by the parties herein. Only when 7 steps were taken by the parties i.e. saptpadi, a marriage became valid and binding. Here, the prosecution has failed to establish the guilt of the accused persons. The court below, on analysis of the evidence, has ultimately found that the accused persons are not guilty. Therefore, I do not find any ground to interfere with the order of the court below. Accordingly, the appeal is dismissed. 13. The revision petition has been filed by the brother of the de facto complainant. The same allegations were raised by the de facto complainant/appellant in the appeal against the accused persons. The Judicial First Class Magistrate-II, Kannur, as per order dated 21.11.2009 in C.C. No. 613 of 2005, acquitted the accused under Section 248(1) of Cr. P.C. It is also held that no court shall take cognizance of any offence punishable under Chapter XX of IPC, except upon a complaint made by some person aggrieved by the offence and there is a total bar in taking cognizance on the basis of a police report. 14. In fact, on the basis of the complaint of the brother of the de facto complainant, the case was registered by the Valappattanam Police as Crime No. 298 of 2002. 14. In fact, on the basis of the complaint of the brother of the de facto complainant, the case was registered by the Valappattanam Police as Crime No. 298 of 2002. It is true that the cognizance taken on the basis of the police report is not correct since there is total bar under Section 198 Cr.P.C. in taking cognizance on the basis of a police report relating to the offences under Chapter XX of IPC and the complaint filed for the offences under Chapter XX of IPC shall be by the aggrieved person. Therefore, the offence under Section 494 IPC will not stand. The offence under Section 498-A IPC is alleged against the accused on the ground that during the subsistence of the marriage between the sister of the revision petitioner and the respondent/accused, he married another lady. As I have already held, the valid marriage between the sister of the appellant and the accused has not been substantiated. Apart from that, the complaint is silent regarding any mental or physical torture on the side of the accused, except an allegation that he married another lady named Soumya. It is true that marrying another lady during the subsistence of marriage would amount to mental cruelty towards the wife. There is absolutely no evidence brought before this Court that the accused has contracted a valid second marriage and the complainant has failed to prove that the first marriage was duly solemnized as per the customary rites. The prosecution has failed to establish the guilt of the accused under Section 498A of IPC. Therefore, I am not inclined to interfere with the order of the court below. 15. In the result, the Crl. Appeal and the Revision Petition are dismissed.