G.C. Jain, J.
(1) By this petition the petitioners, Swaroop Singh and Ishwar Singh, assails the legality of the order dated December 7, 1981 passed by the Metropolitan Magistrate, Delhi, taking cognizance of an offence under Section 494 read with.Section 120B of the Indian Penal Code and summoning the accused, namely, the petitioners and others.
(2) Smt. Kulwinder Kaur, respondent herein, filed a complaint under Sections 494 and 120B of the Indian Penal Code. It was averred that she was married to Kulwinder Singh (respondent No. 1 in the complaint) on November 11, 1978 according to Hindu (Sikh) rites at Delhi. The marriage was consummated and they lived together as husband and wife at Delhi up to January 1979 when Kulwinder Singh left of Dubai. He returned to Delhi in September 1981, did not meet the petitioner and, on the Other hand, in conspiracy with the present petitioners, married Smt. Babli on November 8, 1981. She was informed of this fact when she came back from Punjab where she had gone to meet her relatives. She went to the residence of her husband and herself saw Smt. Babli living as wife of her husband.
(3) In support of the complaint she examined two witnesses, including herself. On examining the statements of the complainant and the witness, Rattan Singh, the Metropolitan Magistrate took cognizance of the case and directed summoning of the four accused, including the petitioners.
(4) Section 494 of the Indian Penal Code provides that 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. Section 120B of the said Code provides for punishment for criminal conspiracy. According to the said section whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(5) The petitioners, Swaroop Singh and Ishwar Singh, were admittedly not covered by the provisions of Section 494. The second marriage, according to the complaint, was per formed by her husband, Shri Kulwinder Singh. The cognizance could be taken against them only if there was some evidence that they were party to criminal conspiracy to commit the offence punishable under Section 494. There is absolutely no evidence, to show that they were party to the alleged marriage of Kulwinder Singh with Smt. Babli. The complainant admittedly was not present at the time of alleged marriage. She had no personal knowledge. Her statement that the second marriage took place in conspiracy with these petitioners is a mere hearsay. She has not disclosed the source of information and that was no evidence in the eye of law. Her witness. Rattan Singh, who according to his statement was present at the time of alleged marriage at the Gurdwara, has not deposed a word against the petitioners. His statement even does not disclose that any of the petitioners was present at the time of the alleged second marriage. thereforee, there was no sufficient ground for proceeding against the petitioners. The learned Metropolitan Magistrate was not justified in taking cognizance of the alleged offence against the two petitioners, Swaroop Singh, and Ishwar Singh and the impugned order to that extent was liable to be quashed.
(6) Learned counsel for the respondent contended that this was a petition under Section 482 of the Code of Criminal Proceedure for exercising inherent powers of the Court, which could be exercised only in rare cases. This Court, however, had power to revise the order of the Metropolitan Magistrate under Section 401 of the Code of Criminal Procedure also and this petition could be treated as revision petition under Section 401 of the said Code.
(7) I, consequently, accept the petition and quash the impugned order so far as it relates to summoning the petitioners, Swaroop Singh and Ishwar Singh.