Vijay Kumar vs The State Of Bihar & Anr.

Assailing the order dated 20.08.2016 passed by the learned Additional Chief Judicial Magistrate-V, Nalanda at Bihar Sharif (in short the A.C.J.M.-V, Nalanda at Bihar Sharif) in connection with Complaint Case No. 724(C) of 2010, whereby the application for discharge filed under Section 245(2) of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.) on behalf of the petitioner has been dismissed, the instant application, under Section 482 Cr.P.C., has been filed by the sole petitioner, invoking inherent jurisdiction of this Court for quashing the same.

A complaint case, bearing Complaint Case No. 724(C) of 2010, was filed in the Court of learned Chief Judicial Magistrate, Nalanda at Bihar Sharif (in short the C.J.M., Nalanda at Bihar Sharif) on 16.06.2010 by the complainant (opposite party No. 2 herein), alleging that her marriage was solemnized with the petitioner on 10.02.2008 in accordance with the Hindu religious rites and rituals in the temple of Baba Bakhtaur, without any dowry. Thereafter, the complainant/opposite party No. 2 started living in the matrimonial home and just after a week, all the accused persons, as named in the complaint, including the petitioner started putting undue pressure upon her to bring dowry, whereupon Rs. 80,000/- in cash besides some ornaments of gold were given to the accused persons. It is alleged by the complainant/opposite party No. 2 that on account of inter-caste marriage between her and her husband (the petitioner herein), they were forced to stay separately at Patna, where, on 06.11.2009, a daughter, namely, Mahak Priya, was born out of the wedlock.

It is further alleged that during the Holi of 2010, she (complainant/opposite party No. 2) was taken to her matrimonial home where, again, she was variously tortured by her in-laws with further demand of dowry. The complainant/opposite party No. 2 has also explained that prior to her marriage with the petitioner, she was married to one Dinesh Das and since he was suffering from cancer before his marriage, both agreed to terminate their marriage and, accordingly, annulment of marriage had taken place between them on 17.01.2008.

It is further alleged that on 12.06.2010, at around 12 O’clock in the night, all the accused persons suddenly entered the room of the complainant/opposite party No. 2 and attempted to strangulate her, whereafter her life was saved due to intervention of the villagers and then the accused persons ousted her from the matrimonial home, after having snatched her jewellery and other valuable items. Thereafter, she immediately approached the police on 14.06.2010, but the police did not pay any heed to her complaint and hence the instant complaint case was filed in the Court of learned C.J.M., Nalanda at Bihar Sharif.

On the basis of the aforesaid complaint petition, a complaint case vide Complaint Case No. 724(C) of 2010 was instituted against all the accused persons including the petitioner herein, whereafter the solemn affirmation of the complainant/opposite party No. 2 as well as the statement of the enquiry witnesses were recorded and vide order dated 18.09.2010, the learned Magistrate, finding prima facie case under Sections 498-A and 323 of the Indian Penal Code (in short the I.P.C.), issued process against the petitioner and others for their appearance to face the trial.

Mr. Mahendra Thakur, learned counsel appearing on behalf of the petitioner submits that after having received summons in the aforesaid complaint case, the parents of the petitioner preferred a quashing application before this Court vide Cr. Misc. No. 47521 of 2013, wherein this Court, after having heard the respective parties, was pleased to quash the order taking cognizance vide order dated 27.08.2015 with respect to them.

It has further been submitted that the petitioner filed an application under Section 245(2) of the Cr.P.C. before the learned Magistrate on 05.08.2014, bringing on record certain relevant facts in order to establish that no offence is made out against him under Section 498-A of the I.P.C. and, accordingly, prayed that the petitioner may be discharged from the instant case.

The learned counsel for the petitioner submits that the learned trial Court, after having heard the parties, rejected the application filed by the petitioner under Section 245(2) of the Cr.P.C. vide order dated 20.08.2016, without considering the relevant materials and facts brought on record. As such, the order passed by the learned trial Court rejecting the discharge application is not only bad in law, but also unsustainable on facts.

Learned counsel for the petitioner advances his arguments by submitting that there was no legally valid marriage between the petitioner and the complainant/opposite party No. 2 and that the instant complaint case has been filed merely with an intention to extort money from the petitioner. He further submits that the allegations levelled in the complaint petition itself belie the complainant’s case, as, at the very outset, she has stated that her marriage was solemnized at Baba Bakhtaur Temple, where no dowry was given; however, in her solemn affirmation, she has stated that the marriage took place at the village temple.

It was also contended that even on 10.02.2008, when the complainant/opposite party No. 2 claims to have solemnized marriage with the petitioner, she was already the legally wedded wife of one Dinesh Das, who died in the year 2011, and there was no snapping of ties between them by way of divorce or in a legally established manner. It has also been contended that since both the parties are co-villagers, all the eminent persons of the village have certified that no marriage had taken place between the petitioner and the complainant/opposite party No. 2.

It has been submitted on behalf of the petitioner that the entire case put forward by the complainant/opposite party No. 2 with regard to her marriage with the petitioner falls apart in view of the statement of her full brother, recorded in a proceeding under Section 125 Cr.P.C. before the learned Family Court, Nalanda at Bihar Sharif in Maintenance Case No. 58(M) of 2010, instituted by the complainant/opposite party No. 2, wherein he has categorically admitted that his sister, i.e., opposite party No. 2 herein, had been residing with her husband, Dinesh Das, till his death in the year 2011. The aforesaid statement of the brother of the complainant/opposite party No. 2, recorded by learned Principal Judge, Family Court in a proceeding under Section 125 Cr.P.C., has been brought on record by way of Annexure-6 to demolish the case of the prosecution.

At the end, learned counsel for the petitioner submits that the petitioner, being a practicing lawyer of the High Court, is fully aware of the legal implications of the matter. It is submitted that the so-called marriage between the complainant/opposite party No. 2 and the petitioner is a nullity in the eyes of law, as, during the subsistence of the first marriage of the complainant/opposite party No. 2 with Dinesh Das, any subsequent marriage, as allegedly solemnized with the petitioner, would be void ab initio. As such, the petitioner could not be prosecuted for the offence under Section 498-A of the I.P.C., in view of the specific and categorical provisions governing the issue and covering persons against whom such prosecution could be launched.

Thus, as submitted on behalf of the petitioner, the entire prosecution is nothing but an out-and-out abuse of the process of law and has been instituted with an ulterior motive, solely with a view to harass the family members of the petitioner, just in order to extort money.

In this view of the matter, learned counsel for the petitioner submits that, while passing the impugned order dated 20.08.2026, the learned Magistrate failed to properly appreciate the aforesaid facts brought before him, which clearly establish that there was no marriage between the parties. Despite the same, the learned Magistrate refused to discharge the petitioner from Complaint Case No. 724(C) of 2010. This clearly reflects total non-application of judicial mind on the part of the learned Magistrate and as such, the impugned order rejecting the prayer for discharge, being wholly untenable in the eyes of law, is fit to be set aside.

Perusal of records reveals that vide order dated 15.05.2018, while issuing notice to the complainant/opposite party No. 2, this Court has stayed the further proceeding of Complaint Case No. 724(C) of 2010, pending in the Court of learned Additional Chief Judicial Magistrate-V, Nalanda at Bihar Sharif.

It appears from the records and office notes that notice has been validly served upon the complainant/opposite party No. 2, whereafter she appeared through an advocate, who, after filing Vakalatnama on behalf of the complainant/opposite party No. 2, got his appearance registered as the learned counsel representing her.

Even on 28.07.2025, when the matter was referred to the Patna High Court Mediation Centre, where a proceeding was instituted vide Special Mediation Proceeding No. 373 of 2025, the learned Advocate for the complainant/opposite party No. 2 appeared and stated that opposite party No. 2 was not interested in contesting the case and as such, there was no need to afford any further opportunity to her to appear. This fact is evident from the report of the learned Mediator dated 25.09.2025.

But on the date when the matter was taken up for hearing, viz., 28.07.2026, despite repeated calls, none appeared on behalf of the complainant/opposite party No. 2 to contest the matter. Learned counsel for the petitioner and learned Additional Public Prosecutor for the State were, however, present. Accordingly, the Court proceeded to hear the matter. The report of learned Mediator reflects the reason for non-appearance of any learned counsel on behalf of the opposite party No. 2.

Heard Mr. Jhakhandi Upadhyay, learned Additional Public Prosecutor for the State, who supports the order rejecting the discharge application of the petitioner by submitting that the learned Trial Court, after having considered all aspects of the matter and the evidence brought on record, rejected the discharge application of the petitioner, as the complainant/opposite party No. 2, in her complaint as well as in her solemn affirmation, has categorically supported the allegations of torture and demand for dowry. Though he admits that the case against the father-in-law and mother-in-law of the complainant/opposite party No. 2 has already been quashed by this High Court, but, at the same time, he submits that the petitioner, being the husband, cannot claim parity with his parents, as the allegations against him are specific and categorical. He, therefore, prays for rejection of the instant application, so that the petitioner may be relegated to face the trial.

Heard the learned counsel appearing on behalf of the respective parties and perused the records.

The instant complaint case was filed on 16.06.2010 with an allegation that the marriage of the complainant/opposite party No. 2 has been solemnized with the petitioner on 10.02.2008 and, thereafter, she has variously been tortured by her in-laws including the petitioner for non-fulfillment of dowry demand.

The perusal of the complaint as well as the solemn affirmation of the complainant/opposite party No. 2, recorded in the course of enquiry, indisputably reveals two facts, viz., (i) that the complainant/opposite party No. 2 was already married to one Dinesh Das; and (ii) that the complainant/opposite party No. 2 claims to have solemnized second marriage with the petitioner in a temple, namely, Baba Bakhtaur, without any demand of dowry.

The aforesaid two facts, when examined in the light of the documents and evidence brought on record, bring to the fore that there is no evidence of the marriage of the complainant/opposite party No. 2 with the petitioner, except for the bald allegations levelled by the complainant/opposite party No. 2. The full brother of the complainant/opposite party No. 2, namely, Ajit Kumar, in his statement recorded in course of the proceedings under Section 125 Cr.P.C. in Maintenance Case No. 58(M) of 2010, has stated in paragraph 5 that “her sister, namely, Tari Devi (complainant/opposite party No. 2), was married to one Dinesh Das in accordance with Christian religious rites on 28.12.2001.” He, in his cross-examination, has admitted that, after her marriage with the aforesaid Dinesh Das, his sister continued to reside with him until his death in the year 2011 and that there was no dispute between them.

The aforesaid statement of the brother of the complainant/opposite party No. 2, having been recorded in a judicial proceeding before the learned Family Court, cannot be doubted, particularly with regard to the fact that the complainant/opposite party No. 2 was residing with Dinesh Das till 2011, when he died. If this be so, and the subsistence of her first marriage is not in dispute, the question arises as to how she could have solemnized marriage with the petitioner in accordance with Hindu rites and rituals during the subsistence of her first marriage. Any marriage which may have taken place, as claimed by the complainant/opposite party No. 2, would, therefore, be a nullity in the eyes of law.

Further, from the supplementary affidavit filed on behalf of the petitioner, whereby the order-sheet of Maintenance Case No. 58(M) of 2010 has been brought on record, it is evident that the aforesaid maintenance case, preferred by the complainant/opposite party No. 2, was ultimately dismissed on 16.01.2021 for want of prosecution, as the complainant/opposite party No. 2 failed to pursue the same. It is also evident that, thereafter, she did not take any steps for restoration or revival of the aforesaid maintenance case. This also reflects the conduct of the complainant/opposite party No. 2, who had preferred the maintenance case in the year 2010, but failed to pursue the same for a longtime, resulting ultimately in its dismissal for default on account of her continuous non-appearance before the Court. This fact, if seen, conjointly with report dated 25.09.2025 of the learned Mediator, evince the fact that after having filed both the cases, the complainant/opposite party No. 2 stopped pursuing these matters. This itself reveals the true intent of filing these cases.

The petitioner’s claim that her first marriage with Dinesh Das got snapped pursuant on account of an agreement executed between them in the year 2008, prior to his death, has no legal sanctity, as she has failed to substantiate the same by producing any document or other evidence demonstrating that there was snapping of ties between them. Had there been any such dissolution of marriage, there would have been no occasion for her to continue residing with Dinesh Das until 2011, when he died of cancer. This fact is undeniably and indisputably evident from the evidence of the brother of the complainant/opposite party No. 2, duly recorded in a proceeding before the learned Family Court, wherein he categorically admitted that his sister had been residing with Dinesh Das until 2011. If that be so, there could be no question of the complainant/opposite party No. 2 entering into matrimonial ties with the petitioner in the year 2010.

Thus, the primal question that arises for consideration is whether the prosecution of the petitioner for the offence punishable under Section 498-A of the I.P.C. can, at all, be sustained when the alleged marriage between the complainant/opposite party No. 2 and the petitioner, if at all, it ever took place, was null and void, having been solemnized during the subsistence of her first marriage with one Dinesh Das, i.e., during his lifetime.

Similar question arose for consideration before the Hon’ble Supreme Court in Shivcharan Lal Verma & Anr. v. State of Madhya Pradesh, reported in (2007) 15 SCC 369, wherein the Hon’ble Supreme Court held that a conviction for the offence under Section 498-A of the I.P.C., during the subsistence of an earlier valid marriage, cannot be sustained. Accordingly, the conviction and sentence under Section 498-A of the I.P.C. were set aside.

Further, in P. Sivakumar & Ors. v. State, Rep. by the Deputy Superintendent of Police, etc., reported in 2023 SCC OnLine SC 1737, the Hon’ble Supreme Court, following the ratio laid down in Shivcharan Lal Verma (supra), held that a conviction under Section 498-A of the I.P.C. would not be sustainable where the alleged marriage with the accused was contracted during the subsistence of the complainant’s first marriage.

In the case at hand, it is not in dispute that the complainant/opposite party No. 2 was already married to one Dinesh Das in the year 2001, with whom she continued to reside until his death in the year 2011. During the subsistence of the said marriage, the complainant/opposite party No. 2 claims to have solemnized her marriage with the petitioner in the year 2010 in a temple. Even if such claim is assumed to be true, without admitting the same, such marriage would be hit by the aforesaid principle of law laid down by the Hon’ble Supreme Court, inasmuch as a second marriage solemnized during the subsistence of a valid first marriage, is null and void in the eyes of law. Consequently, no prosecution for the offence punishable under Section 498-A of the I.P.C. could be maintained against the petitioner on the basis of such alleged marriage.

Having considered the entire gamut of the factual and legal aspects discussed hereinabove, this Court is of the considered opinion that the instant prosecution of the petitioner for the offence punishable under Section 498-A of the I.P.C. is not legally tenable. Accordingly, the order dated 20.08.2016, passed by the learned A.C.J.M.-V, Nalanda at Bihar Sharif in connection with Complaint Case No. 724(C) of 2010, whereby the application filed by the petitioner seeking discharge was rejected, having not been passed in accordance with law and being based on an improper appreciation of the evidence available on record, is quashed and set aside and the petitioner, namely, Vijay Kumar, stands discharged from Complaint Case No. 724(C) of 2010, pending in the Court of learned A.C.J.M.-V, Nalanda at Bihar Sharif.

Consequently, all other criminal proceedings emanating from Complaint Case No. 724(C) of 2010 are also hereby quashed and set aside.

This Court ordered accordingly.

The interlocutory application(s), if any, also stands disposed off accordingly.