Hari Om vs Sooraj Pal and Others

C.A. Rahim, J.—This revision has been directed against the order dated 8.4.1992 passed by learned VII Additional Sessions Judge, Aligarh, in Criminal Revision No. 510 of 1991. By that order he has set aside the summoning order dated 2.8.1991 passed by the learned II Additional Munsif Magistrate, Hathras, in Criminal case No. 515 of 1991.

A case u/s 494/495/420/406, I.P.C. was filed against the Respondents with the allegations amongst others that the Respondent No. 2 being the wife of one Abhay Kumar has committed bigamy by marrying the complainant. Learned Counsel has submitted that the learned Judge has entered into the evidence, weighed the evidence and disbelieved the witnesses during revision in coming to the conclusion that no prima facie case is made out. According to him learned Judge cannot assess the evidence while sitting in revisional Court and the order is bad in law. Learned Counsel for the Respondents has submitted that the ingredients of offence must be mentioned in the petition of complaint and in the absence of it no offence is made out against the Respondents.

The learned Magistrate has examined the witnesses u/s 202, Code of Criminal Procedure and issued process after finding prima facie case under the sections mentioned above. After going through the judgment of the learned Judge I find that he has considered the contradictions in evidence and some extraneous matter beyond the record in coming to the conclusion that no case has been made out against the Respondents. Along with the affidavit, petition of complaint and the evidence of two witnesses examined u/s 202, Code of Criminal Procedure have been annexed. Learned Counsel has referred paragraph 4 of the petition of complaint wherein it has been stated that "Aur Nehayat Hi Sada Tarike Se Aaropak Va Abhiyukt No. 2 Ka Vivah Sampanna Ho Gaya". He has submitted that rituals performed in that marriage were not mentioned. So the prima facie case u/s 494, I.P.C. was not established.

In the instant case first marriage of the Respondent No. 2 has not been challenged. The dispute is with regard to the solemnization of the second marriage with the complainant. P.W. 1 and P.W. 2 have claimed that they had attended the said marriage. P.W. 1 has stated that "Mere samne hari om va priyambda ka vivah sat phere aadi sada tarike se sampanna hua. Phir humlog priyambda ki bidai karakar meroo (village) laye they".

In the case of Ram Khelawan v. State of U.P. reported in 1991 ACC 528 (supra) it has been decided by this Court that "impugned order shows that there was evidence before the Special Judge about the assault and looting of property. How much evidence or what type of evidence would be sufficient for summoning the accused of a complaint case is matter of discretion of the lower Court. The revisional Court cannot interfere with this decision. In a case reported in Kewal Krishan Vs. Suraj Bhan and Another, , it has been held that meticulous analysis of evidence at the stage of taking cognizance is an error amounting to irregularity if not illegality. It appears that the learned Magistrate has considered the evidence produced before him under Sections 200 and 202, Code of Criminal Procedure in summoning the accused persons (Respondents) and the learned Judge sitting in revisional jurisdiction went ahead of his jurisdiction and held that there was no prima facie case against the accused persons. It is not necessary to give all details of the prosecution case in the petition of complaint. In substance there is allegation in the petition of complaint about the offence committed by the accused persons. The truthfulness or otherwise of the allegations would be decided during trial and not at that stage. It is an established principle that at the time of looking into the prima facie case the learned Magistrate is not authorised to weigh the evidence but to see whether there are grounds to proceed with. In this case I find that all these matters exist. I do not find any force in the contention of the learned Counsel for the Respondents.

The decision of Santi Deb Berma Vs. Smt. Kanchan Prava Devi, , to the effect that "the finding of the High Court based on the three letters and the oral evidence to the effect that the Appellant and Namita Ghosh were living together as husband and wife cannot in any way serve as proof of a valid marriage as per the Act specially when there is no plea that the marriage was solemnised in accordance with the customary rites and usage which do not include "saptapadi," is not applicable in this case as in that case full fledged trial was conducted and the Appellant was convicted u/s 494. I.P.C.

Referring the said decision the learned Counsel has submitted that in a case u/s 494, I.P.C. strict proof of marriage is necessary. In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , it has been held that in the following cases the order of Magistrate issuing process against accused can be set aside:

(1) Where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction etc.

Referring the said decision the learned Counsel for the opposite parties has argued that since the essential ingredients of marriage have not been disclosed in the petition of complaint, it will come in the category of No. (1) in the above noted decision and it should be held that there is no case against accused persons. I do not consider that such a proposition is possible after considering materials available in this case. In paragraph No. (1) it was held that either in the petition of complaint or in the statement of witnesses, it must be that it does not make out any case against the accused. There is also a third proposition that the complaint does not disclose essential ingredients of the offence which is alleged in this case. Let me examine the materials available in this case in this perspective.

P.W. 1 has stated that he witnessed the marriage which was solemnized in a simple way, but with Saptapadi. He was also present when ''Bidai'' was held. P.W. 2 has stated that the first marriage of Respondent No. 2 was solemnized with Abhai Kumar and corroborated the second marriage, having been informed by the complainant when he went to the village for enquiry. It has been stated that the ceremony, simple in nature, was observed during the marriage and it was for the reason that at that time Hindu-Muslim riot was prevailing in the region.

Learned Counsel for the revisionist has referred a decision of Mohinder Singh v. Gulwant Singh and Ors. reported in JIC 1992 215 (SC), wherein it was held that "during the course of the enquiry u/s 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused at a regular trial and that no detailed enquiry is called for during the course of such enquiry.

It is true that the ceremonies performed in the marriage were not detailed in the petition of complaint where it was stated that the marriage was held in SADA TARIKA. The allegation of bigamy was charged by stating that Respondent No. 2 who was married previously with Abhai Kumar was again given in marriage with the complainant. Strict proof of marriage is required in order to bring home the charge but if at the outset there is an averment of the second marriage when the first one is subsisting the case will not fail as because ceremonies of the marriage were not described fully in the petition of complaint. For this reason the Magistrate thought of further enquiry u/s 202, Code of Criminal Procedure, where some of the ceremonies like Saptapadi and Bidai have come to light. For issuing process I feel that the materials brought on record during the enquiry u/s 202, Code of Criminal Procedure were sufficient to proceed against the accused persons.

Having considered the evidence I find that prima facie case u/s 494/34, I.P.C. has been established against the Respondents. With regard to the other sections there is no material to proceed.

Hence the Revision is allowed. The judgment and order of the VII Additional Sessions Judge, dated 8.4.1992 is set aside. The order of the learned Magistrate is modified to the extent that he shall issue process against the accused-Respondents u/s 494/34, I.P.C. and then proceed according to law.