IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.57810 of 2007 INDRAJEET KUMAR, S/O LATE SUKHDEO PRASAD, RESIDENT OF VILLAGE NAGARAUSA, P.S. NAGARNAUSA, DISTRICT NALANDA .. APPELLANT Versus 1. THE STATE OF BIHAR 2. ANITA KUMARI, W/O INDRAJEET KUMAR, RESIDENT OF VILLAGE NAGARAUSA, P.S. NAGARNAUSA, DISTRICT NALANDA, AT PRESNT – D/O RAJA KRISHNADEO PRASAD, R/O VILL/MOH – STATION ROAD, HILSA, P.S. HILSA, DISTRICT NALANDA **** /4/ 21.04.2010 Heard the counsel for the parties. 2. This application is directed against the order, dated 11.10.2007, passed by the Subdivisional Judicial Magistrate, Siwan, by which he has ordered to issue summons against the accused person after taking cognizance under Sections 498A, 323 and 494 of the Penal Code and 3 and 4 of the Dowry Prohibition Act. 3. The prosecution case, as alleged in the first information report is that the victim was learnt on 02.06.1998 and even a son born from the wed lock and the victim is living at naihar because of subjecting to cruelty by husband and in-laws. It has further been alleged that on 24.02.2007 that the husband has performed marriage with another lady, - 2 - and after marriage they are living with each other and on 14.03.2007 the complainant learnt and gone to her sasural and there she was not allowed to inter into the sasural, abused and assaulted. 4. Learned counsel for the petitioner submits that a police case was filed under Section 494 of the Penal Code and this case has, again, been lodged and it has been alleged that this case has been instituted in retaliation as Shanti Devi, the mother of the complainant, has lodged a case against the father of the complainant and others and there is litigation going on betweens the parties. The petitioner filed a case for a decree of divorce by consent. It has further been contended that the petitioner has not solemnized second marriage and there is no evidence in this regard. He has relied upon a decision reported in A.I.R. 1966 S.C., 614 (Kanwal Ram Vrs. Himachal Pradesh Administration). However, the case relied upon is a case in which the matter came in an appeal after conviction and it was held that essential ceremonies of marriage has not been proved during trial. 5. The learned counsel for the opposite party, - 3 - however, contends that at this stage the Court has only to see the prima facie case and since there is allegation about the marriage and, hence, the learned lower Court at this stage only to consider during enquiry under Sections 200 and 202 of the Criminal Procedure Code has only to form an opinion whether sufficient ground for proceeding and opening of the Magistrate shall prevail at this stage. 6. However, having regard to the facts and circumstances of the case, at this stage, it is the opinion of the Magistrate which shall prevail and the Magistrate is only to satisfy that there is sufficient ground to proceed and, hence, at this stage, I do not find any illegality or irregularity impugned order. However, the petitioner may raise the point at the stage of framing of the charge and if the issue is raised the learned trial Court below shall consider at that stage, hence, this application stands dismissed. S.A. ( Gopal Prasad, J. )