Patna High Court
Masum Khan @ Masoom Khan @ Sabih Ahmed vs The State Of Bihar on 7 April, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5086 of 2023
Arising Out of PS. Case No.-193 Year-2021 Thana- TURKAULIYA District- East
Champaran
======================================================
Masum Khan @ Masoom Khan @ Sabih Ahmed, Son of Late Wazir
Ahmed Khan, R/o- Bela Thana, P.S.- Nagar, East Champaran.
... ... Petitioner
Versus
1. The State of Bihar
2. Dr. Kumkum Sinha @ Kumkum Kumari, Wife of Dr. Shyam Babu,
R/o Mohalla Badhai Tola Chhatauni, P.S.- Chhatauni, District- East
Champaran.
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr.Amit Shrivastava, Sr. Advocate
Mr.Ali. M. Ahmad, Advocate
Mr.A. Akhtar, Advocate
Mr.Shahbaj Alam, Advocate
Mr.Shailesh Kumar, Advocate
For the State : Mr.Zainul Abedin, APP
For the Informant : Mr. Ansul, Sr. Advocate
Mr.Karandeep, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
Date : 07-04-2025
Heard Mr. Amit Srivastava, learned senior counsel
appearing for the petitioner, Mr. Ansul, learned senior counsel
for the informant/opposite party no. 2 and Mr. Zainul Abedin,
learned A.P.P. for the State.
2. The present petition is being preferred for
quashing/setting aside the impugned order dated 16.12.2022
as passed by Ms. Pooja Kumari, learned Judicial Magistrate -
1st Class, Motihari, East Champaran in Trial No. 1031/2022
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
2/27
arising out of Turkauliya Banjariya P.S. Case No. 193 of
2021, whereby and whereunder application for discharge of
the petitioner as pressed by petitioner/accused under section
239 of the Code of Criminal Procedure (in short the 'Cr.P.C.')
has been rejected.
3. The prosecution story in brief is that Dr. Kumkum
Sinha (informant-Opposite Party No. 2) Ex- Nagar Parshad
Ward No. 18 Motihari cum District President (Mahila) JDU,
East Champaran, had given her written information on
06.03.2021
before the Officer-in-charge of Banjariya Police
Station stating inter alia that she is a practicing lady doctor
having her own clinic near NH-28 Singhia Sagar Morh, P.S
Banjariya. On 05.03.2021 at 7:45 PM, while she was
returning to her residence at Badhai Tola from her nursing
home Shivam Seva Sadan, Singhia Sagar Morh, on the way,
four unknown persons on two motorcycles having no number
plate surrounded her car, out of which one was white colour
Appache motorcycle and another was black Red colour Pulsar
motorcycle, and after stopping her car on way made a
demand of Rs. 50,00,000/- as extortion and, said that it is
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
the Farman (mandate) of one Masoom Bhai (petitioner), and
if the demand was not fulfilled within five days, then her clinic
would be exploded and her children would be kidnapped from
their way to school. The informant alleged that she was also
threatened that if she would inform to police then she will face
dire consequences. The informant/O.P. No. 2 stated that after
this incident she became pretty sure that this Masoom Khan is
the same person who had attacked earlier upon her and is
also accused in another case for beating and demanding
extortion money from junior engineer of PWD department and
for the said incident, he was also sent to jail. It is further
alleged that not only this, even in case No. 1/2018 which is
registered at Sadar Police Station, arrested accused Lal Saheb
has confessed that Masoom Khan is hatching criminal
conspiracy with the help of other criminals and they may likely
to kill complainant, her husband and childrens, and were also
likely to explode her clinic with bombs but, in the meantime,
all of them got arrested with arms. It is further alleged that
Complainant/informant had also filed a complaint in this
regard. Aforesaid incident was also published in the
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
newspaper. The informant /O.P. No. 2 has also alleged that in
the month of October 2017 accused has also demanded
ransom from her staff over telephone from jail and a threat
was also advanced to her clinic staff through whatsapp. It is
alleged that Masoom Khan is mentally torturing her by
abusing, making calls from his mobile and through internet
call. It is further alleged that threat was also given to retrieve
her photos from social networking site as to make it viral after
tampering it. It is further alleged that the accused always
chased/followed her vehicle. The informant/O.P. No. 2 stated
that the petitioner always used to say that his brother is
working as a Peshkar/clerk with Judge, therefore, he'll easily
come out from jail, in any case. It is further alleged that the
petitioner has a habit to flying abroad after committing crime
along with Lal Saheb.
4. On the basis of aforesaid written information given
before the Officer-in-charge of Banjariya Police Station, a
formal First Information Report (F.I.R.) was registered being
Banjariya P.S. Case No. 193 of 2021 for the alleged offence
under section 341/354B/386/387/34 of the Indian Penal
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
Code. Upon investigation of the aforesaid case, police
submitted charge-sheet, where on the basis of available
materials learned Chief Judicial Magistrate, Motihari
transferred the case record to the court of Shri Bhola Singh,
learned J.M. 1st Class, Sadar at Motihari for further
proceeding, accordingly, trial was numbered as 1031/2022.
Upon receiving of police papers under Section 207 of the
Cr.P.C., an application was preferred by the petitioner for
discharge under Section 239 of the Cr.P.C., which after
considering the available materials on the record, rejected by
M/s Pooja Kumari, learned Judicial Magistrate - 1st Class,
Motihari, East Champaran.
5. The petitioner preferred a criminal revision also
against the cognizance order passed by learned C.J.M.
Motihari, which was heard by Additional District and Sessions
Judge- XIVth, Motihari on 27.07.2022, where the revision of
petitioner was partly allowed and cognizance for the offences
under section 386 of the I.P.C. was set-aside.
6. Mr. Amit Shrivastava, learned senior counsel, while
arguing on behalf of the petitioner, submitted that there is no
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
"strong suspicion" against the petitioner to frame charge. It is
pointed out that material available on record is sufficient to
suggest that allegation as raised by O.P. No. 2 was
"groundless" as to frame charge against petitioner, which was
completely overlooked by learned Magistrate. It is submitted
that no doubt the meticulous examination of evidence cannot
be done at this stage to the extent whether the case would
culminate with acquittal or conviction, but the assessment of
materials must be done comparatively in more strict manner
of taking cognizance, to arrive on conclusion that case against
accused petitioner is not found "groundless" and for said
purpose the "strong suspicion" is required from the available
materials, which is absent in the present case.
7. It is further submitted that no doubt defence of
petitioner cannot be considered at this stage but the
documents which is of sterling in nature cannot be
overlooked. In support of submission, learned senior counsel
relied upon the legal report of Hon'ble Supreme Court as
available through State of Orissa Vs. Debendra Nath
Padhi reported in AIR 2005 SC 359.
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
8. Mr. Shrivastava, while arguing further submitted
that petitioner has been made victim of political rivalry, who is
a civil engineer and District Vice President of JDU, whereas
informant/opposite party no. 2 was Ex- Vice President of JDU
(Women Cell), East Champaran. It is pointed out that as
informant failed to get ticket of MLA for certain reasons, she
suspected that it was the petitioner who played a key role in
not allotting party ticket to her and, therefore, she lodged the
present false case without having any materials.
9. Arguing further, Mr. Shrivastava submitted that
even from perusal of First Information Report, it appears that
implication of this petitioner is merely on the basis of
suspicion as it is apparent from written statement of
informant itself, where she stated through F.I.R. that "मु झे पूरा
यकीन हो गया कक यह वही मासूम खान है ".
10. In this context, it is further submitted that from
perusal of supplementary case diary it appears that no one
came near to the clinic of informant, not demanded any
extortion money nor gave any threat to commit any crime
against her, which shows that petitioner did not engaged/send
any unknown person to demand extortion or to commit any
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
criminal act against the petitioner.
11. It is submitted that as per supplementary case
diary, no clue was found against unknown co-accused
persons, neither any possibility to find any clue about them in
future, as place of occurrence is a populated area.
12. Taking further reference of F.I.R., it is submitted
by Mr. Shrivastava that the oblique motive can be gathered
easily as informant referred one case No. 01/2018, where
one co-accused Lal Saheb confessed that petitioner is
hatching conspiracy to kill her husband and children and also
to destroy her clinic by throwing bomb, but accusation against
petitioner was not found true. It is also submitted that in
Town P.S. Case No. 95/2017, which was numbered as Trial
No. 3815/2019, petitioner was discharged and, as such, no
case is pending against the petitioner for the present.
13. It is submitted that false implication out of
oblique motive is evident from the fact that the husband of
informant namely, Dr. Shyam Babu projected himself during
investigation as an eye witness of the occurrence, but from
the F.I.R., it appears that informant proceeded alone from her
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
Nursing Home to Barhai Tola.
14. Mr. Shrivastava further submitted that the F.I.R.
is related with the incident which was said to be occurred on
05.03.2021, wherein it has been raised specifically that this
petitioner started harassing the informant through digital/ Net
calls. The documents attached is dated 15.12.2017 and
03.01.2020 respectively making false allegation on its face.
The sterling value of these documents cannot be denied by
informant/O.P. No. 2, and, moreover, said document is not
supported by the certification required under section 65B of
the Indian Evidence Act.
15. It is submitted by Mr. Shrivastava that upon
revision, the allegation leveled under section 386 of the I.P.C.
was set-aside by the Revisional Court through its order dated
27.07.2022 as passed in Cr. Revision No. 1000/2021, but
the said revisional court failed to appreciate that the
allegation against this petitioner is also ground-less for the
offence under sections 341, 354B, 120B, 387, 504 and 506
of the I.P.C., as admittedly, the petitioner was not present on
spot and he was found nowhere involved directly or indirectly
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
with the present case.
16. It is submitted that as petitioner was not present
on spot, no criminal force can be said to be used by the
petitioner to disrobe the informant and, therefore, allegation
against petitioner under section 354B I.P.C. appears ground-
less. Same is also about the allegation regarding wrongful
restrain under section 341 of the I.P.C. It is submitted that
unknown persons who committed the occurrence were never
apprehended and, therefore, the allegation qua conspiracy or
threat for extortion and also to provoke breach of peace as
alleged under section 120B, 387 and 504 of the I.P.C.
appears ground-less.
17. Explaining further the criminal antecedents, Mr.
Shrivastava submitted that when petitioner was acquitted in
Motihari Town P.S. Case No. 95/2017 through its judgment
dated 13.01.2021, the informant made her maid instrumental
for lodging the complaint case bearing No. 63 of 2022 against
petitioner which was instituted as Turkauliya P.S. Case No.
1060 of 2022 for the offences under Sections 341, 323, 427,
354B, 504, 354D, 506 and 34 of the I.P.C. which is under
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
investigation. It is pointed out by Mr. Shrivastava that during
pendency of the present quashing petition, criminal
antecedent of the petitioner was made available to this Court
by S.D.P.O. Sadar through its letter No. 3430 dated
30.07.2024, which suggest that no criminal case is pending
against the petitioner in Turkauliya Police Station.
18. It is submitted that petitioner was not sent up for
trial and was exonerated after investigation in Turkauliya P.S.
Case No. 1060/2022 as police did not find any material
muchless cogent to implicate the petitioner, where it also
transpired that informant of the said case had named the
petitioner at the instance of Dr. Kumkum Sinha, the
informant of the present case. Similarly, the petitioner was
also not sent up for trial and was exonerated by the
investigating officer from Motihari P.S. Case No. 01/2018,
which is only the basis of suspicion mentioned in the F.I.R.
itself, but the informant moved a petition dated 02.07.2021,
29.07.2021 and 27.08.2021 as a protest in aforesaid case to
direct investigating agency to issue bailable warrant against
petitioner. However, finally the Investigating Authority in
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
Motihari P.S. Case No. 01/2018 submitted its supervision
report dated 19.01.2019, stating that police has not found
petitioner's involvement in the present case as the petitioner
was found out of India for his work purpose as well as
categorically found the ongoing political rivalry between
petitioner and opposite party no. 2. It was transpired during
investigation from the photocopy of passport of the petitioner
which categorically reveals that petitioner departed from India
on 15.09.2017 and arrived on 13.06.2018 and was not
present in country at relevant date of occurrence.
19. It is further submitted by learned counsel that in
Chhatauni P.S. Case No. 42 of 2023, instituted on
22.01.2023, for the offences under Section 67 and 37A of
the IT Act, where informant of the present case moved an
application after six months of the F.I.R. dated 31.07.2023
before the S.H.O. for adding the petitioner in the Chhatauni
P.S. Case No. 42 of 2023. However, the Investigating
Authority in its supervision report in P.S. Case No. 42/2023,
has clearly pointed out the political rivalry between the
parties.
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
20. Summing up all such false implication by
petitioner, it is submitted by Mr. Shrivastava, learned senior
counsel, that the present case is next of the series of false
implication, where petitioner was implicated by informant/
O.P. No. 2 as to settle her own political score and wreaking
vengeance.
21. Mr. Shrivastava further submitted that opposite
party no. 2 herself is a lady of criminal antecedents and facing
trial of two heinous offences of murder and attempt of murder
i.e. Chhautani P.S. Case Nos. 53/2015 and 64/2023. It is
submitted that political rivalry is apparent from the face of
F.I.R. itself as information was registered in the capacity of
District President, Women Cell, East Champaran, Motihari.
22. While concluding argument, Mr. Shrivastava,
submitted that the impugned order is perverse on its face for
the reason that there is no prima-facie indication of
involvement of the accused in the present case and on the
basis of materials on which, cognizance was taken against this
petitioner on said material only ignoring the other material
aspects, the discharge petition under Sections 239 of the
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
Cr.P.C. of petitioner was rejected. It is submitted that some
rival versions as available on record, which are
unimpeachable documents and are of sterling quality, was
completely overlooked by learned Magistrate. It is submitted
that in view of aforesaid, the impugned order is bad in the
eyes of law and same be quashed/set-aside.
23. Mr. Shrivastava, learned senior counsel for the
petitioner relied upon the legal reports of Hon'ble Supreme
Court as available through Vishnu Kumar Shukla and Anr.
Vs. State of Uttar Pradesh and Anr.[2023 SCC Online
SC 1582]; The State of Uttar Pradesh through the
Central Bureau of Investigation Vs. Dr. Sanjay Singh
& Ors. [1994 Suppl.(2) SCC 707]; Kanchan Kumar Vs.
State of Bihar [(2022) 9 SCC 577]; Ram Prakash
Chadha Vs. The State of Uttar Pradesh [2023 SCC
Online SC 1709] and M/s Karnataka Emta Coal Mines
Limited and Anr. Vs. Central Bureau of Investigation
[2023 SCC Online SC 2250].
24. Mr. Ansul, learned senior counsel appearing for
the informant/opposite party no. 2, while opposing the
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
petition, submitted that learned Magistrate correctly hold that
there are triable issues as certain rival submissions were
advanced. It is pointed out that meticulous examination
cannot be done at this stage and, therefore, learned
Magistrate rightly relied upon the legal report of Hon'ble
Supreme Court as available through State of Tamil Nadu
Vs. R. Soundirarasu and Ors. reported in 2022 SCC
Online SC 1150. However, Mr. Ansul, learned senior
counsel could not disputed the long standing political disputes
and implicating attempts of the informant qua petitioner,
which was found false by the Investigating Authority and also
the involvement of informant/OP No. 2 in heinous offences
like murder, as submitted above by Mr. Shrivastava, learned
senior counsel for the petitioner.
25. It would be apposite to reproduce para 22 of
Vishnu Kumar Shukla's case (supra), which reads as
under:
"22. In a recent judgment viz. State of Gujarat v. Dilipsinh
Kishorsinh Rao, 2023 INSC 89444, this Court held:
7. It is trite law that application of judicial mind being
necessary to determine whether a case has been made out by
the prosecution for proceeding with trial and it would not be
necessary to dwell into the pros and cons of the matter by
examining the defence of the accused when an application for
discharge is filed. At that stage, the trial judge has to merely
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
examine the evidence placed by the prosecution in order to
determine whether or not the grounds are sufficient to
proceed against the accused on basis of charge sheet
material. The nature of the evidence recorded or collected by
the Investigating agency or the documents produced in which
prima facie it reveals that there are suspicious circumstances
against the accused, so as to frame a charge would suffice
and such material would be taken into account for the
purposes of framing the charge. If there is no sufficient
ground for proceeding against the accused necessarily, the
accused would be discharged, but if the court is of the
opinion, after such consideration of the material there are
grounds for presuming that accused has committed the
offence which is triable, then necessarily charge has to be
framed.
8. At the time of framing of the charge and taking cognizance
the accused has no right to produce any material and call
upon the court to examine the same. No provision in the
Code grants any right to the accused to file any material or
document at the stage of framing of charge. The trial court
has to apply its judicial mind to the facts of the case as may
be necessary to determine whether a case has been made out
by the prosecution for trial on the basis of charge-sheet
material only.
9. If the accused is able to demonstrate from the charge-
sheet material at the stage of framing the charge which
might drastically affect the very sustainability of the case, it
is unfair to suggest that such material should not be
considered or ignored by the court at that stage. The main
intention of granting a chance to the accused of making
submissions as envisaged under Section 227 of the Cr. P.C.
is to assist the court to determine whether it is required to
proceed to conduct the trial. Nothing in the Code limits the
ambit of such hearing, to oral hearing and oral arguments
only and therefore, the trial court can consider the material
produced by the accused before the 1.0.
10. It is settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate
said material in order to determine whether the facts
emerging from the material taken on its face value, disclose
the existence of the ingredients necessary of the offence
alleged. . . .
X X X
11. The defence of the accused is not to be looked into at the
stage when the accused seeks to be discharged. The
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
expression "the record of the case" used in Section 227 Cr.
P.C. is to be understood as the documents and articles, if
any, produced by the prosecution. The Code does not give
any right to the accused to produce any document at the
stage of framing of the charge. The submission of the
accused is to be confined to the material produced by the
investigating agency.
12. The primary consideration at the stage of framing of
charge is the test of existence of a prima-facie case, and at
this stage, the probative value of materials on record need
not be gone into. This Court by referring to its earlier
decisions in the State of Maharashtra v. Som Nath Thapa,
(1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni,
(2000) 6 SCC 338 has held the nature of evaluation to be
made by the court at the stage of framing of the charge is to
test the existence of prima-facie case. It is also held at the
stage of framing of charge, the court has to form a
presumptive opinion to the existence of factual ingredients
constituting the offence alleged and it is not expected to go
deep into probative value of the material on record and to
check whether the material on record would certainly lead to
conviction at the conclusion of trial.(emphasis supplied)"
26. It would further be apposite to reproduce para
18 to 22 of Dr. Sanjay Singh's case (supra), which
reads as under for ready reference:
"18. At the highest, the prosecution can only suggest from the
circumstances what is or may be the motive for any particular
act. However, motive is not a sine qua non for bringing the
offence of murder or of any crime home to the accused At the
same time the absence of ascertainable motive comes to
nothing, if the crime is proved to have been committed by a
sane person but to eke out a case by proof of a motive alone
that too suspicion of motive apparently tending towards any
possible crime, is not only a very unsatisfactory but also a
dangerous process, because circumstances do not always lead
to particular and definite inferences and the inferences
themselves may sometimes be erroneous.
19. When we scrutinise the entire material placed on record,
even if unrebutted or totally accepted, we are of the view that
they do not make out a case for conviction and the mere
suspicion of motive cannot serve as a sufficient ground for
framing the charges in the absence of any material, prima facie
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
show showing that the particular motive has passed into action
and that the accused is connected with that action in question.
20. This Court in Century Spinning & Manufacturing Co.
Ltd. State of Maharashtra [(19720 3 SCC 282 : 1972
SCC (Cri) 495 : AIR 1972 SC 545] while examining the
scope of Section 251(A) sub-sections (2) and (3) of the old
Code corresponding to Sections 239 and 240 of the new Code
has made the following observation: (SCC p. 291, para 17: AIR
p. 553, para 16)
"..... If on this material, the Court comes to the conclusion that
there is no ground for presuming that the accused has
committed an offence, then it can appropriately consider the
charge to be groundless and discharge the accused. The
argument that the Court at the stage of framing the charges
has not to apply its judicial mind for considering whether of not
there is a ground for presuming the commission of the offence
by the accused is not supportable either on the plain language
of the section or on its judicial interpretation or on any other
recognised principle of law. The order framing the charges does
substantially affect the person's liberty and it is not possible to
countenance the view that the Court must automatically frame
the charge merely because the prosecution authorities, be
relying on the documents referred to in Section 173; consider it
proper to institute the case. The responsibility of framing the
charges is that of the Court and it has to judicially consider the
question of doing so. Without fully adverting to the material on
the record it must find blindly adopt the decision of the
prosecution."
21. Y.V. Chandrachud, J. (as the learned Chief Justice then
then was) speaking for the three-Judge Bench in State of
Karnataka v. L. Muniswamy [(1977) 2 SCC 699 : 1977
SCC (Cri) 404 : AIR 1977 SC 1489] in which the State
challenged the order of discharge made by the trial court in
exercise of its powers under Section 227 of the Code of
Criminal Procedure, 1973 has ruled thus: (AIR p. 1492, para
7)
"This section is contained in Chapter XVIII called 'Trial before a
Court of Sessions. It is clear from the provision that the
Sessions Court has the power to discharge an accused if after
perusing the record and hearing the parties he comes to the
conclusion, for reason to be recorded that there is not sufficient
ground for proceeding against the accused. The object of the
provision which requires the Sessions Judge to record his
reasons is to enable the superior court to examine the
correctness of the reasons for which the Sessions Judge has
held that there is or is not sufficient ground for proceeding
against the accused."
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
22. Thereafter referring the decision of Century Spinning &
Manufacturing Co. Lid. v. State of Maharashtra the
learned Judge has observed: by its order dated 17.4.1979
dismissed the revision petition. This appeal by way of special
leave petition is against the judgment of the High Court.
2. Rules 6 and 54 of the U.P. Sales Tax Rules, 1948 (the
Rules0 to the extent they are relevant are reproduced
hereunder:
"For the purpose of determining whether there is sufficient
ground for proceeding against an accused the Court possesses
a comparatively wider discretion in the exercise of which it can
determine the question whether the material on the record, if
unrebutted, is such on the basis of which as conviction can be
said reasonably to be possible."
27. It would be apposite to reproduce para 15 of
Kanchan Kumar's case (supra), which are as under:
"15. Summarising the principles on discharge under Section
227 CrPC, in Dipakbhai Jagdishchandra Patel v. State of
Gujarat, this Court recapitulated: (SCC p. 561, para. 23)
"23. At the stage of framing the charge in accordance with the
principles which have been laid down by this Court, what the
court is expected to do is, it does not act as a mere post office.
The court must indeed sift the material before it. The material
to be sifted would be the material which is produced and relied
upon by the prosecution. The sifting is not to be meticulous in
the sense that the court dons the mantle of the trial Judge
hearing arguments after the entire evidence has been adduced
after a full-fledged trial and the question is not whether the
prosecution has made out the case for the conviction of the
accused. All that is required is, the court must be satisfied that
with the materials available, a case is made out for the accused
to stand trial. A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The material
must be such as can be translated into evidence at the stage of
trial. The strong suspicion cannot be the pure subjective
satisfaction based on the moral notions of the Judge that here
is a case where it is possible that the accused has committed
the offence. Strong suspicion must be the suspicion which is
premised on some material which commends itself to the court
as sufficient to entertain the prima facie view that the accused
has committed the offence." (emphasis supplied).
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
28. In para 27, 28 & 29 of Debendra Nath Padhi's
case (supra), the Hon'ble Apex Court has observed, which
are as under:
27. Insofar as Section 91 is concerned, it was rightly held that
the width of the powers of that section was unlimited but there
were inbuilt, inherent limitations as to the stage or point of time
of its exercise, commensurate with the nature of proceedings as
also the compulsions of necessity and desirability, to fulfil the
task or achieve the object. Before the trial court the stage was
to find out whether there was sufficient ground for proceeding
to the next stage against the accused. The application filed by
the accused under Section 91 of the Code for summoning and
production of document was dismissed and order was upheld by
the High Court and this Court. But observations were made in
para 6 to the effect that if the accused could produce any
reliable material even at that stage which might totally affect
even the very sustainability of the case, a refusal to look into
the material so produced may result in injustice, apart from
averting an exercise in futility at the expense of valuable
judicial/public time, these observations are clearly obiter dicta
and in any case of no consequence in view of conclusion
reached by us hereinbefore. Further, the observations cannot
be understood to mean that the accused has a right to produce
any document at the stage of framing of charge having regard
to the clear mandate of Sections 227 and 228 in Chapter 18
and Sections 239 and 240 in Chapter 19.
28. We are of the view that jurisdiction under Section 91 of the
Code when invoked by the accused, the necessity and
desirability would have to be seen by the court in the context of
the purpose -- investigation, inquiry, trial or other proceedings
under the Code. It would also have to be borne in mind that law
does not permit a roving or fishing inquiry.
29. Regarding the argument of the accused having to face the
trial despite being in a position to produce material of
unimpeachable character of sterling quality, the width of the
powers of the High Court under Section 482 of the Code and
Article 226 of the Constitution is unlimited whereunder in the
interests of justice the High Court can make such orders as may
be necessary to prevent abuse of the process of any court or
otherwise to secure the ends of justice within the parameters
laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426] .
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
29. It would also be necessary to reproduce para
102 of Bhajal Lal's case (supra), for better understanding
of the law, as laid down by Hon'ble Supreme Court, which are
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 information 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 any 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-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 person 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 Act concerned (under
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
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 Act concerned,
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."
30. Considering the submission and discussion of
legal position of law, as advanced above, now coming to the
facts of the present case. The first and foremost thing, which
is required to be considered, is whether the present F.I.R. was
lodged with oblique or ulterior motive as to settle the personal
political score. The F.I.R. in issue clearly suggests that the
informant/opposite party no. 2 proceeded from her clinic to
Barhai Tola for some personal work and at that point of time
she was alone. The F.I.R. was also lodged in the capacity of
President, Women Cell. F.I.R. also suggest suspicion from the
confessional statement of one Lal Saheb, who apprehended in
Town P.S. Case No. 01/2018. Unknown persons, who
threatened the informant/OP No. 2 and asked for a ransom,
was not apprehended. There is no statement of any
apprehended person. Admittedly, the petitioner was not
present on spot. He did not use any criminal force to disrobe
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
the informant or to restrain her. The narration of F.I.R.
suggest only and only suspicion gathered out of political
rivalry. Whatsapp chats, enclosed with the F.I.R., appears to
be done with another person where even the name of O.P.
No.2 not appears. All these facts may constitute a motive and
suspicion, but cannot be said to impress a "grave suspicion"
on the basis of which this petitioner can be put on criminal
trial on the charges leveled against him, as raised above.
31. The informant/O.P. No. 2 herself appears to be a
lady of criminal antecedents involved in heinous offences, as
discussed above. There is prima-facie no agreement to
commit the present occurrence between the unknown accused
persons with the petitioner as to bring prima-facie charge
under Section 120B of the I.P.C. as even confessional
statement is not available in want of arrest of unknown
persons.
32. Petitioner is an engineer and also ex-Vice
President of same political party to which the informant/O.P.
No.2 appears affiliated. This submission was raised before the
learned trial court while arguing on discharge petition, but was
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
not taken into consideration.
33. In view of the fact that Turkauliya P.S. Case No.
1060/2022 was filed by the Maid of the informant/O.P. No.2.
and also, the informant filed a petition to implicate the
petitioner in Motihari P.S. Case No. 01/2018 and also moved
an application after six months of the F.I.R. dated
31.07.2023 i.e. Chhatauni P.S. Case No. 42/2023 instituted
on 22.01.2023 to implicate this petitioner are such
unimpeachable documents, having sterling nature, cannot be
overlooked to say that informant/O.P. No. 2 was in political
rivalry and, therefore, lodging of the present case out of
ulterior and oblique motive cannot be denied.
34. It would be further apposite to reproduce
paragraph '10' of the impugned judgment, which are as
under:
"10. Perusal of the allegations and record, prima-facie
indicated the involvement of the accused in this present case.
Considering prima-facie of materials brought on record after
investigation is connecting the accused with the offences for
which cognizance was taken against him in aforesaid case. At
this stage, detail evaluation of materials and meticulous
consideration of the defence are impermissible. There are
triable issues involved in this present matter, therefore, if
there are triable issues then the Court is not expected to go
into the veracity of the rival versions therefore the case put
up by the prosecution against the accused cannot be termed
as groundless."
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
35. It would be apposite to reproduce Section 239 of
the Cr.P.C. for the sake of understanding the position of law,
which is being reproduced hereunder for a ready reference:
"239. When accused shall be discharged.--If, upon
considering the police report and the documents sent with it
under section 173 and making such examination, if any, of the
accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the
Magistrate considers the charge against the accused to be
groundless, he shall discharge the accused, and record his
reasons for so doing."
36. From aforesaid provision of law, it appears that
Magistrate before arrving to conclusion that charge against
accused is "groundless" as to discharge or having grounds to
frame charge to proceed further by entering into trial,
following legal compliance necessary to be followed, which are
as under:
1. Police report and documents sent with it
under section 173 of Cr.P.C.;
2. Making some examination, if any, of the
accused as the Magistrate thinks necessary;
3. Opportunity to accused of being heard; and
4. Recording of reasons.
Aforesaid safe grounds are formulated with object to
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
save an innocent persons from trauma of facing criminal trial.
This provision of law should not be dealt in mechanical
manner, as any order passed under this provision opens a
gate of criminal trial. Therefore, all aforesaid four limbs of
section 239 of Cr.P.C. must be deal with strict scrutiny and
utmost care as to arrive on conclusion that charge against
accused is "not groundless" or "groundless" as the case may
be.
37. From perusal of the impugned order, it transpires
that order was passed in very mechanical manner merely for
the reason that learned jurisdictional Magistrate took
cognizance seeing prima-facie materials against the
petitioner. The order is silent that what material is available
against this petitioner which, if cannot be rebut, may cause
conviction and, therefore, the concept of "grave suspicion"
appears completely overlooked.
38. Accordingly, the present petition stands allowed.
39. The impugned order dated 16.12.2022 as passed
by learned Judicial Magistrate - 1st Class, Motihari, East
Champaran in Trial No. 1031/2022 arising out of Turkauliya
Patna High Court CR. MISC. No.5086 of 2023 dt.07-04-2025
Banjariya P.S. Case No. 193 of 2021 with all its consequential
proceedings/orders qua petitioner, is hereby set-
aside/quashed.
40. Let a copy of this judgment be sent to the learned
trial court immediately.
(Chandra Shekhar Jha, J.)
Rajeev/-
AFR/NAFR AFR
CAV DATE 12.02.2025
Uploading Date 07.04.2025
Transmission Date 07.04.2025
