Patna High Court
Sunil Kumar @ Sunil Kumar Mahto vs The State Of Bihar on 7 January, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4064 of 2024
Arising Out of PS. Case No.-17 Year-2022 Thana- SC/ST District- Begusarai
======================================================
1. Sunil Kumar @ Sunil Kumar Mahto S/O Bishundeo Mahto Resident
of Village- Bagha, ward No. 29, P.S- Lohia Nagar ( Erstwhile- Town),
Dist -Begusarai
2. Kiran Devi @ Kiran Kumari W/O Sunil Kumar @ Sunil Kumar Mahto
Resident of Village- Bagha, ward No. 29, P.S- Lohia Nagar
( Erstwhile- Town), Dist -Begusarai
3. Guddu Kumar @ Kunal Kishore @ Kunal S/O Sunil Kumar @ Sunil
Kumar Mahto Resident of Village- Bagha, ward No. 29, P.S- Lohia
Nagar ( Erstwhile- Town), Dist -Begusarai
... ... Appellants
Versus
1. The State of Bihar
2. Ravindra Paswan S/O Ramswaroop Paswan R/O Village- Kaithma,
P.S- Mufassil, Distt.- Begusarai.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. N.K. Agrawal, Sr. Advocate
Mr.Kumar Praveen, Advocate
Mr.Kumar Rajdeep, Advocate
For the Respondent/s : Mr.Binay Krishna, Spl.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 07-01-2025
Heard Mr. N.K. Agrawal, learned senior counsel
duly assisted by Mr. Kumar Praveen, learned counsel for
the appellants and Mr. Binay Krishna, learned Special Public
Prosecutor for the State.
2. The present appeal has been filed for quashing
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
2/14
the cognizance order dated 29.06.2024, as passed by
learned Exclusive Special Judge, SC/ST (POA) Act,
Begusarai, in connection with SC/ST P.S. Case No. 17 of
2022 registered for the offence under Sections 307, 323,
342, 436 and 452 of the Indian Penal Code (in short the
'I.P.C.') and Section 3(1)(r)(s) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (hereinafter
referred to as the "SC/ST Act"), whereby and whereunder
final form has been submitted by the Investigating Officer
on 31.12.2022 vide Final Form No. 37/2022 in favour of
the appellants, despite of that the learned Judge has been
pleased to take cognizance for the offence under Sections
323, 342, 436 & 34 of the I.P.C. and Section 3(1)(r)(s) of
the SC/ST Act against the appellants.
3. As per the case of the prosecution, the
complainant, who belongs to dusadh caste, on the alleged
date of occurrence, was sleeping with Sikandar Sah
(witness no. 1) in the office of their shop of "Balu Gitti". It
was stated further that in the midnight of 7/8.02.2022, all
the accused persons surrounded both of them and appellant
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
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no. 1 started abusing him by taking his caste name and
ordered the other co-accused to throw him in fire. Upon
which, all the accused persons tried to push both of them in
fire, but when local people assembled there, all the accused
persons fled away. The complainant further alleged that he
identified the accused persons in the light of fire flame. In
the said incident, house belongings costing about Rs. One
Lakh was turned to ash. The complainant further stated that
main reason behind this occurrence is a dispute over
passage of lane, for which he was being abused by the
accused persons by taking his caste name. Thereafter, a
written information was given to local police on 08.02.2022
to SC/ST Police Station, but after enquiry, no F.I.R. was
lodged against the accused persons. Ultimately, the present
complaint being Complaint Case No. 14 of 2022 was lodged
on 14.02.2022 against the accused persons, which was
sent to SC/ST Police Station vide order dated 28.03.2022
for institution of F.I.R. under Section 156(3) of the Cr.P.C.
Upon which, SC/ST P.S. Case No. 17 of 2022 has been
registered on 02.06.2022.
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
4/14
4. Mr. N.K. Agrawal, learned senior counsel
appearing on behalf of the appellants submitted that the
present complaint case is a classical example of the fact
that how the provision of SC/ST Act is being misused in our
society. In this context, it is pointed out by Mr. Agrawal that
admittedly alleged mischief was caused with property of
witness no. 1, but intentionally, respondent no. 2, who was
one of the employee of witness no. 1 and belongs to
scheduled caste community, was made complainant in the
present complaint petition, which is sufficient to suggest the
malafide intention and oblique motive of the complainant
and also witness no. 1 namely, Sikandar Sah.
5. It is further submitted by Mr. Agrawal that the
complaint in issue not appears supported by affidavit, on
the basis of which the F.I.R. was lodged. It is submitted
that on this ground alone, the pending proceeding is
required to be quashed. In support of his submission,
learned senior counsel relied upon the legal report of
Hon'ble Supreme Court as available through Babu
Venkatesh and Others Vs. State of Karnataka and
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
5/14
Anr. reported in (2022) 5 SCC 639.
6. It is further submitted by Mr. Agrawal that
admittedly the dispute arisen out of land dispute for which
the matter was pending before the Circle Officer, Begusarai
at the time of occurrence. It is further pointed out that from
the order under appeal, which was also preferred before the
District Magistrate, Begusarai, it transpires that it is witness
no. 1, who is the employer of this complainant, repeatedly
put an unauthorized partition on disputed piece of land for
disturbing one or another nearby occupants including the
appellants. In this context, Mr. Agrawal further relied upon
the legal report of Hon'ble Supreme Court as available
through Gulam Mustafa Vs. State of Karnataka
reported in (2023) SCC OnLine SC 603.
7. Mr. Agrawal, further submitted that after
investigation, police submitted final form and did not sent
up the appellants for facing trial but learned Special Court
without assigning any reason, by taking a different view,
took cognizance against the appellants. In this context, it is
further pointed out that interestingly cognizance was taken
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
6/14
initially vide order dated 07.10.2023 for the offence under
Section 307 and 452 of the I.P.C., but subsequently
learned Special court, on the basis of a petition pressed by
learned Special Public Prosecutor, modified his earlier order
by saying that cognizance taken under Section 307 and 452
I.P.C. was due to typographical error, which only suggests
that in very mechanical and casual manner, the matter was
proceeded while taking cognizance qua occurrence in issue.
8. It is also pointed out that from facial perusal of
complaint petition, no criminal case is made out against the
appellants, as admittedly the complainant was not the eye
witness of the occurrence and, therefore, in terms of golden
principle as settled through State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335], this cognizance order is
fit to be quashed/set-aside.
9. A notice was issued by this Court to the
complainant/respondent no. 2 vide order dated
17.10.2024.
10
. In this context, Mr. Binay Krishna, learned
Special P.P. submitted that information regarding present
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
pending proceeding has already been given to the
informant/respondent no. 2, but despite of same
informant/respondent no. 2, failed to join the present
pending proceeding.
11. Mr. Binay Krishna, learned Special P.P., while
opposing the present quashing appeal, submitted that
complainant belong to SC/ST community and alleged abuse
by taking caste name appears to be made in public view,
however, he could not disputed the factual and legal
submission as advanced by Mr. N.K. Agrawal, learned
senior counsel appearing for the appellants.
12. It appears out of submission and perusal of
record that the alleged occurrence took place on intervening
night of 7/8th February 2022, for which a complaint was
filed on 14th February 2022 which was registered as
complaint case no. 14/2022 before the learned Special
Court (SC/ST Act), Begusarai. It appears from perusal of
complaint that same not appears supported by affidavit and
thus by hit by legal ratio as settled through Babu
Venkatesh' case (supra). Subsequently, said complaint
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
was forwarded to concerned S.H.O. for investigation after
lodging the F.I.R. on 28.03.2022, whereafter the F.I.R.
was lodged on 2nd June, 2022, and police after investigation
submitted final form against the appellants/accused on
31.12.2022 with reason that allegation found not true. It
appears from impugned cognizance order that without
assigning any reason while taking a different view to that of
final report as submitted by police after investigation,
simply by referring few paragraphs of the case diary which
is para 6, 7, 8, 40 & 41, learned Special Court took
cognizance against the appellants/ accused.
13. For better understanding, it would be apposite
to reproduce the complaint petition, which reads as under:
"U;k;ky;
Jheku fo"ks'k U;k;k/kh"k
vuqlwfpr tkfr@tutkfr vf/kfu;e] csxqljk;A
ukylh okn la[;k%& 11@2022
14@2022
uke ifjoknh%& jfoUnz ikloku mez yxHkx o'kZ is0 jkeLo:i ikloku
lkfdu&dSFkek] Fkkuk&eqQfly] ftyk&csxqljk;A
eksckby ua0 %& 7760446023
cuke
uke vfHk;qDrx.k%& 1- lquhy dqekj egrksa is0 fo"kqunso egrksa] mez yxHkx 50 o'kZ
2- fdj.k nsoh tkS0 lquhy dqekj egrksa] mez yxHkx 45 o'kZ
3- lquhy dqekj egrks dk iq= uke ukekywe is0 lquhy dqekj
egrksa mez yxHkx 20 o'kZA
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
lHkh lkfdu & ck?kk okMZ ua 29] Fkkuk & uxj] ftyk & csxqljk;A ,oa pkj
vKkr O;fDRkA
uke xokgu%& 1- fldanj lkg is0 Lo ukjk;.k lkg
2- vthr lkg is0 fldanj lkg
3- uouhr lkg is0 fldanj lkg
lHkh lkfdu& ck?kk okMZ ua 29] Fkkuk&uxj ¼yksfg;kuxj vks- ih0½]
ftyk&csxqljk;A okfd;s xokgu dk uke ckn esa nsaxsaA
?kVuk LFky %& lkfdu& egYyk &ck?kk okMZ ua 29] Fkkuk&uxj ¼yksfg;kuxj
vks- ih0½] ftyk&csxqljk; fLFkr fldanj lkg dk ckyw fxV~Vh LVksj
,oa Qwl djdV dk cuk vkWfQl ftlesa lkeku j[kk gqvkA
?kVuk frfFk ,oa le;%& fnukad 07@08&02&2022 lkseokj eaxyokj cq/kokj
dh lkekU; jkf= le; 2-05 cts jkf=A
/kkjk%& 307] 323] 342] 436] 452 Hkk0 na0 fo0 ,oa 3 (1) (r) (s) vuq0
tk0@ t- tk- vR;kpkj fuokj.k vf/kfu;eA
egk"k;!
fuosnuiwoZd dguk gS fd ifjoknh vuqlwfpr tkfr ds varxZr nqlk/k
tkfr dk O;fDr gSA mi;qZDr of.kZr ?kVuk frfFk ,oa le; dks ifjoknh vius
ekfyd fldanj lkg ¼xokg la 1½ ds lkfdu ck?kk okMZ ua 29 Fkkuk uxj
¼yksfg;kuxj vks- ih0½ ftyk csxqljk; fLFkr ckyw] fxV~Vh LVksj ds Qwl djdV
ls cus vkWfQl esa vius ekfyd xokg la0 1 ds lkFk lks;k gqvk Fkk rks mlh
le; [kj&[kj dh vkokt ij ifjoknh ,oa xokg la0 1 dh uhan [kqyh rks
ns[kk fd vkWfQl esa vkx /k/kd jgk gSA ifjoknh ,oa xokg la0 1 nksuksa viuh
&viuh tku cpkus okLrs VkVh QkM+ dj ckgj fudyk rks mi;qZDr uketn
lHkh vfHk;qDrx.k pkj vU; vKkr O;fDRk ds lkFk feydj ifjoknh ,oa xokg
la[;k 1 dks pkjks rjQ ls ?ksj fy;k vkSj vfHk;qDr la[;k 1 lquhy dqekj
egrksa xkyh nsrs gq, dgk fd lkys nqlk/k dks vkx esa Qsad nksA bl ij lHkh
vfHk;qDr feydj ifjoknh ,oa xokg la[;k 1 fldanj lkg dks idM+dj tku
ekjus dh fu;r ls vkWfQl esa yxk, vkx esa /kdsyus yxs vkSj tykus dk iwjk
iz;kl fd;s fdUrq ifjoknh ,oa xokg la[;k 1 ds }kjk gYyk djus ij xokgu
igqaps rks vfHk;qDrx.k ifjoknh ,oa xokg la[;k 1 dks NksM+dj HkkxsA ty jgs
vkWfQl dh vkx dh ykiV ls jks"kuh esa ifjoknh ,oa xokgksa us vfHk;qDrksa dks
igpkukA vfHk;qDrksa }kjk ifjoknh ds ekfyd xokg la0 1 ds vkWfQl esa vkx
yxkus ls vkWfQl ,oa vkWfQl esa j[kk nks pkSdh] ,d Vaªd] isVh ,d] Hkh-vkbZ-ih-]
vVSph ,d] pnjk dk dksBh vukt j[kus dk ,d] xSl pqYgk NksVk
flysaMj ,d] nks fcNkou] nks jtkbZ] ,oa Vaªd cDlk esa j[kk lkeku dqy dher
,d yk[k #i;k ty dj {kfrxzLr gks x;kA vfHk;qDrksa us lksp le>dj
bjknru ?kVuk dks vatke fn;k gSA fnukad 26&01&22 dh jkf= esa lqulku
ikdj VkVh QkM+dj lkeku dk pksjh dj fy;k Fkk ftldh lqpuk fnukad
27&01&22 dks vKkr pksjksa ds fo:) yksfg;kuxj Fkkuk dks fn;k x;k Fkk
dksbZ dkjZokbZ ugha gksus ij ifjoknh ds lkFk xokg la[;k 1 mDr vkWfQl lg
LVksj esa lqj{kk dh n`f'V ls lksus yxk rc vfHk;qDr la[;k 1 us vU; vfHk;qDrksa
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
ds lkFk feydj tykdj ekjus dh uh;r ls bl izdkj dh ?kVuk fd;kA
?kVuk dk dkj.k gS fd iwoZ ls jkLrk ds fookn dks lnk&lnk ds fy,
lekIr djus dh ea"kk ls ljsvke nql/kok] rsfy;k dgdj viekfur fd;k ,oa
vkx yxkdj vkWfQl lg ?kj lkeku lfgr tyk fn;k vkSj ifjoknh o xokg
la[;k 1 dks vkx esa tykus dk Hkjiwj iz;kl fd;kA
ifjoknh us eksckby Qksu ds }kjk nedy foHkkx ,oa iVuk dks Qksu
fd;k rks vfXu"kked foHkkx ds deZpkjh nedy ds lkFk ?kVukLFky ij vkdj
vkx dks cq>k,A rc fnukad 08&02&22 dks ifjoknh us bl ?kVuk dh fyf[kr
lqpuk Fkkuk/;{k vuq0 tk0@ t0 tk0 Fkkuk csxqljk; dks gkFkksa gkFk ,oa bZ
esy ls rFkk iqfyl v/kh{kd csxqljk; dks bZ esy ls ekuuh; eq[;ea=h fcgkj
dks bZ esy] ls uxj Fkkuk/;{k csxqljk; ,oa yksfg;kuxj vks-ih- v/;{k dks
okV~lvi ls ,oa fnukad 10-02-22 dks iqfyl egkfuns"kd gksexkMZ dks bZ esy ls
vkosnu Hkstdj fn;kA fnukad 11-02-2022 dks djhc 5 cts la/;k vuq0 tk0@
t0 tk0 Fkkuk] csxqljk; ds nkjksxk th Jh izeksn dqekj ?kVukLFky ij vkdj
tkap dj ifjoknh ,oa xokgu ls iwNrkN dj okil vk x;s fdUrq vfHk;qDrksa
ds esy o izHkko esa vkus ds dkj.k Fkkuk/;{k us vHkh rd izkFkfedh ntZ ugha
fd;k vkSj u gh vfHk;qDrksa dks fxjQ~rkj fd;kA vfHk;qDrksa ds Mj ls vkl ikl
ds yksx xokgh nsuk ugha pkgrs gSaA
vr% Jheku ls izkFkZuk gS fd Fkkuk/;{k vuq0
tk0 @t0 tk0 Fkkuk csxqljk; dks /kkjk 153 ¼3½
na0 iz0 la0 ds varxZr izkFkfedh
ntZ dj vuqla/kku djus dk funsZ"k nsus dh d`ik
dh tk,A blds fy, ifjoknh Jheku dk lnk
vkHkkjh jgsxkA
g0 @&
ifjoknh"
14. From perusal of aforesaid complaint petition, it
appears that land dispute of appellants/accused was not
with complainant rather with witness no. 1 namely,
Sikandar Sah, son of late Narayan Sah. Complainant
admittedly appears to be an employee of witness no. 1 and
was sleeping with him on fateful night in office where
mischief by fire alleged to be caused by appellants/accused.
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
The actual aggrieved is witness no. 1, but he did not came
forward to lodge the case, rather, he made his employee
instrumental prima-facie for the reason that he belongs to
scheduled caste's community, which implies prima-facie
malafide intention and oblique motive of witness no. 1.
Even from facial perusal of complaint petition, it appears
that the complainant is not the eye witness of the real
occurrence and also no overt act appears attributed
particularly to appellant no. 2 and 3 who are none but the
wife and son of appellant no. 1. At this stage, it would be
apposite to reproduce para 102 of Bhajan Lal's case
(supra), 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.
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
(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
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
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 malafide 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."
15. Considering the aforesaid factual and legal
discussion as the complaint is not supported by affidavit,
where cognizance order is not appears a reasoned order
while taking a different view from final report and,
moreover, prima-facie the facial perusal of complaint also
not disclosed any offence committed by appellants/accused,
rather it appears that complainant made instrumental in the
hand of witness no. 1 to lodge this case suggesting oblique
motive with malafide intention, accordingly, order taking
cognizance dated 29.06.2024 (Annexure '6') as passed
by learned Exclusive Special Judge, SC/ST (POA) Act,
Begusarai in connection with SC/ST P.S. Case No. 17 of
Patna High Court CR. APP (SJ) No.4064 of 2024 dt.07-01-2025
2022 is hereby quashed and set-aside qua
appellants/accused.
16. Accordingly, this appeal is allowed.
17. Let a copy of this judgment alongwith TCR, if
any, be returned to learned trial court henceforth.
(Chandra Shekhar Jha, J.)
Rajeev/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 09.01.2024
Transmission Date 09.01.2024
