Patna High Court
Rahul Kumar @ Rahul Jha vs The State Of Bihar on 1 July, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4382 of 2022
Arising Out of PS. Case No.-12 Year-2019 Thana- BHAGALPUR COMPLAINT CASE
District- Bhagalpur
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1. RAHUL KUMAR @ RAHUL JHA S/o Shashidhar Jha @ Shashi Shekhar
Jha R/o village- Bikramshila Rampur, P.S.- Kahalgaon, Distt- Bhagalpur.
2. Gautam Jha @ Gautam Kumar Jha @ Gautam Kumar S/o Shashidhar Jha @
Shashi Shekhar Jha R/o village- Bikramshila Rampur, P.S.- Kahalgaon,
Distt- Bhagalpur.
3. Amar Mishra @ Amrendra Kumar Mishra @ Amrendra Mishra S/o Bhola
Mishra R/o village- Goradih, Dariyapur, P.S.- Nathnagar, Distt- Bhagalpur.
4. Chandan Kumar @ Chandan Mandal S/o Uday Mandal R/o village-
Rampur, Lagaon, P.S.- Kahalgaon, Distt- Bhagalpur.
... ... Appellant/s
Versus
1. The State of Bihar.
2. Raju Kumar Paswan S/o Sri Daresh Paswan R/o Village- Tintenga, Karari,
P.S.- Gopalpur, Distt- Bhagalpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Sharda Nand Mishra
For the Respondent/s : Mr.Binay Krishna
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 01-07-2024
1. Heard learned counsel for the appellants
and learned Special P.P. for the State as well as learned
counsel for the respondent no.2/informant.
2. This appeal has been filed for setting aside
the order dated 06.05.2022 passed by learned 3rd Addl.
Session Judge-Cum-Special Judge (S.C/S.T. Act),
Bhagalpur in in Complain Case No. 12/2019 (T.R. No.
925/2022) by which Ld. 3rd Addl. Session Judge-Cum-
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
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Special Judge (S.C/S.T. Act) has been pleased to took
cognizance and issue summon, who are accused in
Complain Case No. 12/2019 (T.R. No.925/2022), under
sections 406, 420, 465, 468, 471, 120(B) of IPC and
Sections 3 (1) (x) S.C./S.T. Act.
3. Prosecution case in brief is that the
complainant is an educated unemployed and was in
search of his employment, where he applied in the year
2015 for a job for Indian Army through S.S.C and after
physical verification, he was allowed to appear in written
examination and further alleged that one friend of the
complainant namely Ajay Kumar was also appeared in
such examination. It is stated that co-accused Gautam
Jha had convinced him that his brother Rahul is in the
B.S.F and he will get his job secure, provided each
person to pay Rs. 4.5 Lacs, after which complainant
alleged to paid Rs. 1.5 Lacs in November 2016 and
thereafter paid another installment of Rs. 1.5 Lacs, after
which appointment letter was received. It is further
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
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alleged that complainant after paying last installment of
Rs. 1.5 Lacs to accused persons went to R.T.S Camp,
Indore but when he tried to enter inside the camp, he
was informed that his appointment letter is forged and
thereafter, went to Hazaribagh where, it was confirmed
that appointment letter is forged and further alleged that
complainant went to the house of Rahul Jha (appellant)
where Gautam Jha was present and again demanded
money, on refusal, accused persons abused by the caste
name of his father and also abused by the name of his
mother as caste of "Dusadh" and further alleged that he
also pushed him with life ending threat and told not to
come again. It is further alleged that he along with other
two persons thus cheated by the accused persons.
4. Learned counsel appearing for the
appellants submitted that the present occurrence took
place in the month of November 2016, where
complainant came to know regarding alleged cheating by
appellants/accused persons on 31.03.2017 only. It is
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
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further submitted that even as per narration of the
complaint petition, the last occurrence took place on
22.11.2018
, where complainant alleged to be assaulted
by the appellants/accused and also to be abused by
caste name, whereas the present complaint appears to
be lodged on 29.04.2019 itself after a gap of about
more than six months, as an afterthought out of ulterior
and oblique motive.
5. It is further submitted by learned counsel
that from perusal of complaint case, it appears that it is
almost admitted position that the payment was made in
cash for an illegal appointment, for which, the
complainant/informant was well aware about. It is
submitted that payment as alleged to made to
appellant/accused was not supported by any
documentary evidence and it is purely and afterthought
malicious criminal prosecution, and as such, on the basis
of material as available through complaint petition, it
cannot be said that any prima facie case regarding
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
cheating is made out against appellants/accused. In
support of his submission, learned counsel relied upon
the report of State of Haryana and Ors. Vs. Bhajan
Lal and Ors., reported in 1992 Supp (1) Supreme
Court Cases 335.
6. Learned counsel for the appellants further
submitted that the last occurrence dated 22.11.2018,
when complainant/informant alleged to be abused by
appellants/accused persons in their caste name is not
appearing to be made in public view and therefore,
allegation in this regard is also not sufficient to made out
any prima facie case. In support of his submission,
learned counsel also relied upon the legal report of
Hitesh Verma Vs State of Uttarakhand and
Another, reported in (2020) 10 SCC 710.
7. Learned APP, duly assisted by learned
counsel Mr. Mritunjay Kumar Mishra while appearing on
behalf of the complainant/informant submitted that there
is specific allegation against appellants/accused to abuse
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
by caste name to complainant and also to cheat for cash
of Rs. 4,50,000/- on pretext of providing a government
job.
8. It would be apposite to re-produce para
102 of the Bhajan Lal (supra), which reads as under:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first informant report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of nay
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent persons can ever reach
a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
9. It would be further apposite to re-produce
paras 14 and 15 of the Hitesh Verma (supra), which
reads as under:
"14. Another key ingredient of the provision is insult
or intimidation in "any place within public view". What
is to be regarded as "place in public view" had come
up for consideration before this Court in the judgment
reported as Swaran Singh v. State [Swaran Singh v.
State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] .
The Court had drawn distinction between the
expression "public place" and "in any place within
public view". It was held that if an offence is
committed outside the building e.g. in a lawn outside
a house, and the lawn can be seen by someone from
the road or lane outside the boundary wall, then the
lawn would certainly be a place within the public view.
On the contrary, if the remark is made inside a
building, but some members of the public are there
(not merely relatives or friends) then it would not be
an offence since it is not in the public view (sic) [Ed. :
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
This sentence appears to be contrary to what is stated
below in the extract from Swaran Singh, (2008) 8
SCC 435, at p. 736d-e, and in the application of this
principle in para 15, below:"Also, even if the remark is
made inside a building, but some members of the
public are there (not merely relatives or friends) then
also it would be an offence since it is in the public
view."] . The Court held as under : (SCC pp. 443-44,
para 28)
"28. It has been alleged in the FIR that Vinod Nagar,
the first informant, was insulted by Appellants 2 and 3
(by calling him a "chamar") when he stood near the
car which was parked at the gate of the premises. In
our opinion, this was certainly a place within public
view, since the gate of a house is certainly a place
within public view. It could have been a different
matter had the alleged offence been committed inside
a building, and also was not in the public view.
However, if the offence is committed outside the
building e.g. in a lawn outside a house, and the lawn
can be seen by someone from the road or lane
outside the boundary wall, the lawn would certainly be
a place within the public view. Also, even if the
remark is made inside a building, but some members
of the public are there (not merely relatives or
friends) then also it would be an offence since it is in
the public view. We must, therefore, not confuse the
expression "place within public view" with the
expression "public place". A place can be a private
place but yet within the public view. On the other
hand, a public place would ordinarily mean a place
which is owned or leased by the Government or the
municipality (or other local body) or gaon sabha or an
instrumentality of the State, and not by private
persons or private bodies."
15. As per the FIR, the allegations of abusing
the informant were within the four walls of her
building. It is not the case of the informant that there
was any member of the public (not merely relatives or
friends) at the time of the incident in the house.
Therefore, the basic ingredient that the words were
uttered "in any place within public view" is not made
out. In the list of witnesses appended to the charge-
sheet, certain witnesses are named but it could not be
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
said that those were the persons present within the
four walls of the building. The offence is alleged to
have taken place within the four walls of the building.
Therefore, in view of the judgment of this Court in
Swaran Singh [Swaran Singh v. State, (2008) 8 SCC
435 : (2008) 3 SCC (Cri) 527] , it cannot be said to
be a place within public view as none was said to be
present within the four walls of the building as per the
FIR and/or charge-sheet."
10. In view of the aforesaid factual and legal
submissions, as the transaction of cash, as alleged for
Rs. 4,50,000/- which was paid for providing government
job as a bribe is not appearing supported by any
documentary evidence to make out any prima facie case
qua cheating. It further appears that abuse in caste
name was not made in public view, hence by taking a
guiding note of guideline nos. 1, 5 and 7 of Bhajan
Lal's case (supra) and also by taking a guiding note of
Hitesh Verma's case (supra), the impugned order
dated 06.05.2022 passed by the learned 3rd Addl.
Session Judge-Cum-Special Judge (S.C./S.T Act),
Bhagalpur in Complaint Case No. 12/2019 (T.R. No.
925/2022) is quashed and set aside qua above named
Patna High Court CR. APP (SJ) No.4382 of 2022 dt.01-07-2024
appellant.
11. Hence, appeal stands allowed.
12. Let copy of this judgment be sent to learned
trial court immediately alongwith T.C.R., if any.
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 02.07.2024
Transmission Date 02.07.2024
