HABIB MIR Vs. SHAH MALI

JUDGEMENT

(1.) THIS is revision against the order dated 28 -3 -1879 of the C. J. M. Sopore The accused -respondents were proceeded against under section 494 R. P. C. in the court below with the allegation that during subsistence of her first marriage with the complainant, Mst. Shah Mali contracted second marriage with Rehman Tantary, the accused, at the behest and with the abetting of the other accused and in this way they committed an offence of bigamy. The learned Magistrate after evaluating the evidence produced before him, that the complainant had failed to establish the solemnization of first marriage as also the second marriage. On the evidence produced the accused cannot therefore, be committed to the court of Sessions. They were accordingly discharged.

(2.) MR . Hali appearing for the petitioner has submitted that the court below has committed an error of law in not committing the accused to the court of Sessions, that has itself evaluated the evidence which was the function of the trial court and not of the committing court which required only to see whether a prima facie case was made out against accused, it was for the trial court to scrutinize the evidence and then come to the conclusion as regards the guilt of the accused. There was sufficient evidence on the record justifying the committing of the case to the court of Sessions The learned counsel has led me through the evidence. While adverting to the same, he has made an attempt to show that both the marriages having been proved, case of bigamy was made out against the accused -respondents.

(3.) IN my opinion, having regard to the evidence on record, no case of bigamy can be said to be established against the accused -persons. The complainant has miserably failed to prove the first marriage of Mst. Shahmali with the complainant. The complainant in his statement has affirmed that at the time of performance of Nikah ceremony, a deed was executed. In this statement of his, he is joined by one Ghulam Hassan P.W. who has supported him. But as against this, the very witness who is alleged to have presided over the alleged Nikah ceremony has categorically stated that no Nikah Namma was executed. Learned counsel for the petitioner has not been able to explain this serious contradiction in the statements of the witnesses. If there was a deed of Nikah according to the complainant, then the same ought to have been produced and proved. Non -production of the same raised an adverse presumption against the complainant. Again in order to prove a valid marriage, it was incumbent upon the complainant to have examined the two witnesses who were present at the time of the alleged marriage and in whose presence Mst. Shahmali had given her consent. But none of these witnesses was examined in the court below. Omission to produce and examine these important witnesses raised serious doubts about the veracity of the complainants case. Again there is scanty evidence on the record to prove the alleged second marriage of Mst. Shah Mali with Rahman Tantray. Reliance is sought to be placed on a statement made by Mst. Shah Mali before the same Judicial Magistrate made in another criminal proceedings. But even that admission of her would not render the accused liable for the offence of bigamy. In the first place the identity of the maker and of Rehman Tantrey has not been established. Secondly, as observed by their Lordships of the Supreme Court in A.I.R. 1971 Supreme Court, 1153, there must be proper proof of solemnization of second marriage in accordance with the essential religious rites applicable to the parties. It is a must for conviction for bigamy. Mere admission by accused that he had contracted second marriage is not enough. It is true that the standard of proof required for making a committal order is not the same as is required in the case of regular trial before the court of Sessions. But the essential test to be applied is whether the case if it goes unrebutted can warrant the conviction of the accused. As observed above, there being no legal proof available, with regard to the factum of first marriage and there also being scanty evidence with regard to the second marriage, in my opinion, no good ground could be said to be made out for committing the accused to the court of Sessions. I, therefore, agree with learned Magistrate that the case could not be committed and the accused deserved to be discharged. The result is that I find no force in this revision which is hereby dismissed.