Patna High Court
Dipak Kumar and OrsversusState Of Bihar and Anr
- Decided
- Disposal
- ALLOWED
- Bench
- ANIL KUMAR SINHA
Holding
The High Court held that no prima facie case existed against the petitioners and that the magistrate’s order rejecting the discharge application was erroneous.
Summary
The petitioners, who are relatives of the complainant's husband, filed a discharge application under Section 245 of the Cr.P.C. after the S.D.J.M. had taken cognizance of offences under Sections 341, 323, 379 and 498A of the IPC based on a complaint of marital harassment. The magistrate rejected the discharge petition, holding that a prima facie case existed. On revision, the High Court examined the statements of five witnesses taken at the evidence‑before‑charge stage and found that none of them made specific allegations against the petitioners; only vague, omnibus references were made. Relying on Supreme Court precedents (Dara Lakshmi Narayana and Sanjay Kumar Rai), the Court held that family members cannot be hauled into criminal proceedings without specific material and that the magistrate had acted mechanically. Consequently, the Court set aside the magistrate’s order and discharged the petitioners.
Issues considered
- Whether the evidence before charge discloses a prima facie case against the petitioners under Sections 341, 323, 379 and 498A IPC.
- Whether the magistrate correctly applied Sections 244 and 245 Cr.P.C. in rejecting the discharge application.
- Whether the inclusion of the husband’s family members amounts to an abuse of the process of law.
Legislation cited
- Criminal Procedure Code — s. 244, 245
- Indian Penal Code — s. 323, 341, 379, 498A
Subjects
- criminal revision
- discharge under Section 245 CrPC
- prima facie case
- family members liability
- abuse of process
- matrimonial dispute
- IPC sections 341, 323, 379, 498A
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.1134 of 2018
Arising Out of PS. Case No.-857 Year-2013 Thana- NALANDA COMPLAINT CASE
District- Nalanda
======================================================
1. Dipak Kumar and Ors S/o Gyaneshwar Das.
2. Nirmala Devi, W/o Dipak Das @ Dipak Kumar,
3. Ritu Kumari, D/o Gyaneshwar Das,
4. Dipika Kumari, D/o Gyaneshwar Das, All resident of Mohalla- Hussainganj,
P.O. P.S.- Barh, District- Patna.
... ... Petitioner/s
Versus
1. State of Bihar and Anr
2. Rekha Kumari, D/o Niraj Kumar, resident of Mohalla- Hussainganj, P.O.
P.S.- Barh, District- Patna, present address D/o Vijay Das, Village- Khawasa,
P.O.- Chero, P.S.- Harnaut, District- Nalanda.
... ... Respondent/s
======================================================
with
CRIMINAL REVISION No. 1067 of 2018
Arising Out of PS. Case No.-857 Year-2013 Thana- NALANDA COMPLAINT CASE
District- Nalanda
======================================================
1. Niraj Kumar and Ors S/o Gyaneshwar Das,
2. Gyaneshwar Das S/o late Baldeo Das,
3. Bimla Devi W/o Gyaneshwar Das, All R/o Mohalla- Hussainganj, P.O. P.S.-
Barh, District- Patna.
... ... Petitioner/s
Versus
1. State of Bihar and Anr
2. Rekha Kumari W/o Niraj Kumar, R/o Mohalla- Hussainganj, P.O. P.S.-
Barh, District- Patna, present Address D/o Vijay Das, Vill.- Khawasa, P.O.-
Chero, P.S.- Harnaut , District- Nalanda.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL REVISION No. 1134 of 2018)
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the Respondent/s : Mr. Sri Surendra Kumar, Advocate
For the State : Mr. Burendra Kumar, A.P.P.
For the O.P. No.2 : Mr. Krishna Deo Rai, Advocate
(In CRIMINAL REVISION No. 1067 of 2018)
For the Petitioner/s : Mr. Sanjay Kumar, Advocate
For the Respondent/s : Mr. Sri Shyameshwar Dayal, Advocate
For the State : Mr. Burendra Kumar, A.P.P.
Patna High Court CR. REV. No.1134 of 2018(11) dt.09-04-2026
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For the O.P. No.2 : Mr. Krishna Deo Rai, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
ORAL ORDER
11 09-04-2026 Heard learned counsel for the parties concerned.
2. The present Revision application has been filed
against the order dated 09.07.2018 passed by the learned
S.D.J.M., Nalanda at Bihar Sharif in Complaint Case CR. No.
857(C) of 2013. by which the discharge petition filed by the
petitioners under Section 245 Cr.P.C. has been rejected.
3. The prosecution case, based on the complaint, in
short, is that the complainant, Rekha Kumari, filed a complaint
before the learned C.J.M., Nalanda, stating therein that her
marriage with accused No. 1, namely Neeraj Kumar, was
solemnized on 12.06.2010. It has further been stated that the
complainant is working as a teacher in Middle School, Pratappur,
Lakhisarai, and after her marriage she started visiting the school
by train. After few days of marriage, the accused persons started
demanding Rs. 2 lakh from the complainant and her family
members for starting a business for her husband. When the
demand was not fulfilled, the accused persons started abusing
and torturing the complainant. The husband stopped talking to
the complainant, and proper meals were not provided to her by
the accused persons.
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4. The learned Magistrate took cognizance against the
petitioners, namely Dipak Kumar and Nirmala Devi, under
Sections 341, 323, 379, and 498A of the Indian Penal Code, and
against Ritu Kumari and Dipika Kumari under Sections 323 and
379 of the Indian Penal Code. After completion of the
appearance of the accused, the case was fixed for evidence
before charge under Section 244 Cr.P.C. Altogether five
witnesses (CWs) were examined at the stage of evidence before
charge. A discharge petition was filed by the petitioners on
19.01.2018, which was dismissed by the learned S.D.J.M.,
Nalanda, vide order dated 09.07.2018.
5. Ms. Adya Pandey, learned counsel appearing for the
petitioners, argued that there is no material to connect the
petitioners with the present offence inasmuch as in the evidence
before charge, no specific allegation has been made against the
petitioners by the CWs. Only general and omnibus allegations
have been made against them. The petitioners are family
members of the husband of the complainant; petitioner No. 1 is
the brother of the husband of the complainant, petitioner No. 2 is
the wife of petitioner No. 1, and petitioners Nos. 3 and 4 are the
sisters of the husband of the complainant. The entire family
members of the husband of the complainant have been roped in
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the present case in order to harass them. The learned Trial Court,
in a mechanical manner and without application of proper
judicial mind and without verifying the materials available in the
evidence collected before charge, has passed the impugned order.
The Trial Court did not take any effort to look into the evidence
before charge before passing the impugned order.
6. Learned counsel placed the depositions of the CWs
and the complainant, recorded at the stage of evidence before
charge, and submits that none of the witnesses has stated
anything against the petitioners. Only general and omnibus
reference to the petitioners has been made.
7. It has been submitted by learned counsel for the
petitioners that Criminal Revision No. 1067 of 2018, filed by the
husband, father-in-law, and mother-in-law of the complainant
against the order dismissing their discharge petition, has been
dismissed by this Court vide order dated 15.02.2024
8. Learned counsel for the petitioners relied upon the
judgment of the Hon’ble Supreme Court in case of Dara
Lakshmi Narayana v. State of Telangana, reported in (2025) 3
SCC 735, and Sanjay Kumar Rai v. State of Uttar Pradesh and
Anr., reported in (2022) 15 SCC 720.
9. On the other hand, Mr. Krishna Deo Rai, learned
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counsel for the complainant-opposite party No. 2 argued that in
the complaint petition there is specific allegations against the
petitioners, and cognizance was taken by the learned Magistrate
against petitioner Nos. 1 and 2 under Section 498A and other
Sections of the I.P.C.
10. I have heard learned counsel for the parties and
have gone through the materials on record, including the
impugned order Chapter XIX of Cr.P.C., 1973 deals with the
trial of warrant cases by Magistrate, and part of the said chapter
is relating to cases instituted otherwise than on police report.
Section 244 and 245 Cr.P.C. is quoted as follows:-
244. Evidence for prosecution.—
(1) When, in any warrant-case instituted
otherwise than on a police report, the accused
appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the
prosecution and take all such evidence as may
be produced in support of the prosecution.
(2) The Magistrate may, on the application of
the prosecution, issue a summons to any of its
witnesses directing him to attend or to produce
any document or other thing.
245. When accused shall be discharged.—
(1) If, upon taking all the evidence referred to in
Section 244, the Magistrate considers, for
reasons to be recorded, that no case against the
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accused has been made out which, if
unrebutted, would warrant his conviction, the
Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to
prevent a Magistrate from discharging the
accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he
considers the charge to be groundless.
11. From perusal of Section 244 Cr.P.C., it appears that
in warrant case instituted otherwise than police report, when the
accused appears or is brought before a Magistrate, the Magistrate
shall proceed to hear the prosecution and take all such evidence
as may be produced in support of the prosecution. Section 245
deals with the discharge of the accused, which says that upon
taking all the evidence referred to in Section 244, if the
Magistrate considers, for reasons to be recorded, that no case
against the accused has been made out which, if unrebutted,
would warrant conviction, the Magistrate shall discharge him.
12. From perusal of the impugned order, it appears that
the learned S.D.J.M., Nalanda has arrived at the conclusion that
the witnesses have supported the allegations against the above-
named accused persons and the court has found a prima facie
case against the petitioners. This Court has examined the
statements of five witnesses who were examined as CWs at the
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stage of evidence before charge, and from perusal of their
statements, this Court is satisfied that the witnesses have not
stated anything specific against these petitioners. Only omnibus
statements have been made against these petitioners, whereas
there is some specific allegations against other accused persons,
i.e., the husband, mother-in-law, and father-in-law. Relying upon
the same, a Co-ordinate Bench of this Court has rejected the
revision application filed by them against the order of the
learned S.D.J.M., Nalanda refusing to discharge.
13. In Dara Lakshmi Narayana (supra), the Hon’ble
Supreme Court has made it clear that family members of the
husband ought not to be unnecessarily roped into criminal
proceedings arising out of matrimonial discord. The Court
observed that it has become a recurring tendency to implicate
every member of the husband’s family, irrespective of their role
or actual involvement, merely because a dispute has arisen
between the spouses. It was further held that where the
allegations are bereft of specific particulars, and particularly
where the relatives sought to be prosecuted are residing
separately and have had no connection with the matrimonial
home, allowing the prosecution to proceed would amount to an
abuse of the process of law. The criminal law is not to be
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deployed as an instrument of harassment, and judicial scrutiny
must be exercised to guard against such misuse.
14. In Sanjay Kumar Rai (supra), the Hon’ble
Supreme Court has held that while deciding an application for
discharge, the Court should not act as a post office but must
consider the materials accompanying the police report and then
arrive at a conclusion as to whether, on the basis of such
materials, an offence is made out or whether there is evidence
sufficient to sustain the charge against the accused.
15. This Court, upon perusal of the entire materials,
including the evidence of the witnesses recorded before charge,
comes to the conclusion that the materials emerging from the
evidence before charge, on their face value, do not disclose any
prima facie case against the petitioners and is also lacking in the
ingredients necessary for the offences alleged. The learned court
below has acted like a post office and has rejected the discharge
application of the petitioners in a mechanical manner, without
applying its mind or properly examining the statements of the
witnesses recorded before charge. Allowing the prosecution to
continue against the petitioners shall cause miscarriage of justice
and unnecessary harassment to them in abuse of the process of
court. Accordingly, this Court comes to the conclusion that the
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impugned order dated 09.07.2018 passed by the learned
S.D.J.M., Nalanda cannot be sustained.
16. In the result, the impugned order dated 09.07.2018
passed by the learned S.D.J.M., Nalanda is set aside and the
petitioners are discharged.
(Anil Kumar Sinha, J)
Siwani/-
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