A civil court decree declaring no marriage is not relevant in a subsequent criminal proceeding for bigamy unless it falls within the ambit of Sections 40 to 43 of the Evidence Act.

S.C.Mital, J.

1. The facts leading to this petition are that Gurbhajan Kaur, respondent No. 1, filed a complaint under Section 494, Indian Penal Code, against Jaspal Singh petitioner and Section 494/109, Indian Penal Code, against respondent Nos. 2 to 9 on the allegations that she legally married the petitioner on 12th July, 1959, and that on 9th October, 1965, he remarried Shrimati Jagdish, respondent No. 2, in spite of the fact that the former marriage was still subsisting. Against the other respondent it was alleged that they abetted the petitioner to marry Shrimati Jagdish. After recording preliminary evidence, the trial Magistrate summoned the petitioner and respondent Nos. 2 to 9. The petitioner presented an application on 13th January, 1966, praying that either the proceedings be stayed or the complaint be dismissed because he had obtained a decree dated 28th July, 1965, from the Civil Court to the effect that Gurbhajan Kaur was not his legally wedded wife. He also pressed into service the order dated 17th January, 1966, passed by another Magistrate dismissing the application of Gurbhajan Kaur preferred under Section 488, Criminal Procedure Code. The trial Magistrate by his order dated 16th February, 1966, declined to grant either of the reliefs and directed the proceedings to continue. Revision petition against his order was dismissed by the Additional Sessions Judge, Amritsar, on 18th March, 1967.

2. The sole question to be determined in this revision petition is : What is the effect of the decree aforesaid on the complaint instituted by Gurbhajan Kaur respondent ? At the outset, it may be said that the petitioners impression that the judgment of the Civil Court debars the trial Magistrate from taking cognizance of the complaint is wholly erroneous inasmuch as the judgment cannot be equated with the judgment recognised under Section 403, Criminal Procedure Code, which embodies the plea of autrefois acquit. The other aspect is whether the judgment is relevant. B.N. Kashyap v. Emperor, AIR 1945 Lahore 23 a Full Bench decision, lays down that "Judgments of Courts of justice are as such declared to be relevant by Sections 40 to 43, Evidence Act, and if they do not fall within the one or the other of these sections, they will have to be held irrelevant unless they can be brought under any other provisions of the Act." Likewise, their Lordships of the Supreme Court in Kharkan and others v. State of Uttar Pradesh, AIR 1965 SC 83, held that an earlier judgment can be admissible only if it fulfils the conditions laid down in Sections 40 to 43 of the Evidence Act. The same view was expressed by their Lordships of the Privy Council in Emperor v. Khwaja Nazir ahmad, AIR 1945 PC 18, holding :-

"The findings in a civil proceeding are not binding in a subsequent prosecution founded upon the same or similar allegations. It is the duty of a Criminal Court when a prosecution for a crime takes place before it to form its own view and not to reach its conclusion by reference to any previous decision of the Civil Court which is not binding upon it."

3. I am unable to concur with the submission of the learned counsel for the petitioner that the decree of the Civil Court passed under Section 42 of the Specific Relief Act declaring that Gurbhajan Kaur was not the legally wedded wife of the petitioner be deemed to be in the exercise of the matrimonial jurisdiction of the Court, inasmuch as the submission would have carried conviction in case the decree had been passed in accordance with the provisions of any Act like the Hindu Marriage Act, 1955.

4. In Vempa Sunanda v. Vempa Venkata Subbarao, AIR 1957 Andhra Pradesh 424, it was held that a decree dissolving a marriage under Section 5(3) of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1945, determines the status of the parties and is equivalent to a judgment in rem. In the first place, the ruling supports my view inasmuch as in Vempa Sunandas case (supra), it can be said that