Surjit Singh vs Pritam Kaur

K.P.S. Sandhu, J, (ORAL)

Surjit Singh petitioner has come up in revision in this Court under Section 401 of the Code of Criminal Procedure against the order of Shri H.S. Bakshi, Additional Sessions Judge, Ferozepure, dated 9th September, 1983, by which he accepted the revision of Pritam Kaur respondent and ordered further inquiry by the trial Magistrate.

The facts which gave rise to this revision are as follows. Pritam Kaur respondent filed a complaint in the Court of the Additional Chief Judicial Magistrate, Ferozepur, under Section 494 read with Section 109 of the Indian Penal Code against the petitioner and four others alleging therein that the petitioner was married to her in the year 1966 and that he contracted a second marriage during her life time with Sant Kaur and that Sant Kaur, Makhan Singh, Dial Singh and Gian Singh, coaccused of the petitioner in that case, knew full well that Surjit Singh petitioner was already married and that they aided and abetted the offence under Section 494 of the Indian Penal Code. The learned Magistrate, after recording preliminary evidence, summoned the petitioner and his other four coaccused. The evidence before the charge was recorded in the presence of the petitioner and his coaccused. Pritam Kaur respondent closed her evidence on 12th of January, 1983. The learned Magistrate vide his order dated 31st January, 1983, after considering the evidence led before the charge came to a finding that the complainant had failed to prove a prima facie case against the petitioner and his coaccused and that there was not sufficient evidence on record which could justify the framing of the charge and discharged the petitioner and his coaccused. Aggrieved by this order of the learned Magistrate, Shrimati Pritam Kaur respondent filed a revision which was disposed of by the learned Additional Sessions Judge by the aforesaid impugned order. Hence, this revision by Surjit Singh.

Mr. R.S. Ghai, learned counsel for the petitioner, has contended at the outset that the learned Magistrate vide his detailed order rightly came to a finding that the complainant had failed to prove ingredients of the offence. In this context he has laid a special stress on the statement of Inderjit Singh Granthi P.W. 2 who is alleged to have performed Anand Karaj ceremony between Surjit Singh and Sant Kaur. According to his statement, which was relied upon by the complainant side, the marriage ceremony was preformed on 13th December, 1981, while the complaint was instituted on 31st March, 1981, much earlier to the alleged performance of the Anand Karaj ceremony. In the statement in the Court the complainant failed to state as to in which month or year the second marriage was performed. Thus Mr. R.S. Ghai argues that the very statement of Inderjit Singh Granthi falsifies the version of the prosecution and knocks out the bottom of the prosecution case. Mr. R.S. Ghai has further contended that in revision even if the learned Additional Sessions Judge came to a different conclusion after appreciating the evidence he was not justified in setting aside the order of the learned Magistrate unless it was perverse and manifestly wrong on the face of it.

On the other hand, Mr. Harbans Singh Senior Advocate, learned counsel for Pritam Kaur respondent, has vehemently contended (1) that the learned Magistrate was not entitled to weigh the evidence at the time of the framing of the charge, (2) that there is documentary evidence on the record in the form of saledeed Exhibit P1 executed by the petitioner in favour of his second wife wherein she has been shown as wife (3) that there is the evidence of extrajudicial confession made by Sant Kaur before Darshan Singh brotherin law of Pritam Kaur respondent and (4) that there is the oral evidence of two witnesses, namely, Krishan Singh and Makhan Singh who were allegedly present at the time of the Anand Karaj ceremony.

After going through the orders of both the learned trial Magistrate and the learned Additional Sessions Judge and pursuing the evidence with the help of the counsel for the parties, I am of the view that the learned Magistrate rightly came to the conclusion that the complainant had failed to prove the very ingredients of the offence under "Section 494 of the Indian Penal Code. No authority need be cited for the proposition that in a case where the marriage is an ingredient of an offence the factum of the marriage has to be proved very strictly. Herein the statement of Inderjit Singh Granthi who is alleged to have performed the Anand Karaj ceremony cannot be reconciled with the prosecution version. Thus the learned trial Magistrate has rightly come to the conclusion that the factum of the second marriage does not stand proved.

As far as document Exhibit P1 is concerned, it has rightly been kept out of consideration by the learned Magistrate. Since it was not tendered in evidence or proved in evidence led before the charge, it could not form part of evidence. The oral evidence regarding the extrajudicial confession and the factum of the performance of the second marriage has been rightly discarded by the learned trial Magistrate because it cannot be of any use in the face of the contradiction between the statement of Inderjit Singh PW and the case of the complainant. The learned Additional Sessions Judge in revision was not justified in setting aside the order of the learned Magistrate for this reason alone that be formed a different view from the evidence led by the complainant unless he came to a finding that the order of the learned Magistrate was perverse and manifestly wrong. The learned Magistrate has rightly discharged the petitioner and his coaccused after writing a very detailed judgement. I think that order of the learned Additional Sessions Judge upsetting the same cannot be sustained. Consequently I allow this revision and set aside the impugned order of the learned Additional Sessions Judge, Ferozepur.