High Court overrules judgment and order of Special Judge, POCSO Act, Darbhanga, appellant acquitted of charges

In Vidya Das Vs. State of Bihar, Patna High Court's bench of Justice Ashutosh Kumar overruled the judgment dated August 25, 2023 and the order of the Special Judge, POCSO Act, Darbhanga. The latter had convicted the appellant has under Sections 376 (AB) and 341 of the IPC and Section 6 of the POCSO Act. By order dated August 29, 2023, Vidya Das was sentenced to undergo R.I. for 20 years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer S.I. for six months for the offence under Sections 376 (AB) of the IPC. For the offence under Section 341 of the IPC, the appellant has been sentenced to undergo S.I. for one month, to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo S.I. for one week. For the offence under Section 6 of the POCSO Act, 2012, the appellant has again been sentenced to undergo R.I. for 20 years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer S.I. for six months.

The High Court "found that initially the case was lodged only with the accusation of attempt at molestation. The victim was examined medically after a long time. In the medical examination, the torn hymen was opined to have been caused a couple of days earlier. That apart, we have taken due notice of the fact that the allegation of the appellant having committed sexual misdemeanor with the victim on the rooftop in the night of a winter month. The victim herself has stated something which makes her entire deposition untrustworthy. According to her, the mother was present all through when she was subjected to sexual intercourse. This does not appear to be possible, especially when the appellant is related to the victim and the informant. If the victim is to be believed, then perhaps the mother did not make any attempt to stop the appellant or to apprehend him for his having committed such an offence with her minor daughter." 

The Court observed: "It thus appears that the accusation have been levelled for some ulterior purposes. Though it could not be deciphered during Trial but from a close look at the deposition, it appears that there was some dispute with respect to a parcel of land near the temple and graveyard in the village." It wondered as to whether "this allegation because of that". 

It has recorded that the victim is a minor but that itself would not be sufficient to invoke the mischief of Sections 29 and 30 of the POCSO Act, 2012. The prosecution will have to prove that "the offence had taken place and that appellant had committed sexual intercourse with the victim." As a consequence, the Court gave benefit of doubt to the appellant. The order of the Division Bench of Justices Ashutosh Kumar and Jitendra Kumar reads: "The appellant is in jail. He is directed to be released from jail forthwith, if not wanted or detained in any other case." The order was authored by the former.

Supreme Court sets aside Patna High Court's order in anticipatory bail case from Darbhanga

In Dulare Choudhary Vs. State of Bihar (2024), the Supreme Court's bench of Justices B.V. Nagarathna and Augustine  George Masih set aside the final judgment and order of Justice Anjani Kumar Sharan of the Patna High Court on February 23, 2024 after hearing the appeal challenging the High Court's order. 

The counsel for the appellant submitted that the First Information Report in the instant case is nothing but a second Report lodged on the same facts as was lodged on earlier occasion wherein the appellant stood enlarged on anticipatory bail vide order dated 31.08.2021 annexed to the petition as Annexure-P/7. He also referred to the order granting anticipatory bail passed by the High Court in the case of co-accused in Crl. Misc. No.1400/2023 dated 08.02.2023, annexed to the petition as Annexure-P/12. This order was also passed in Ram Dinesh Rai Vs. State of Bihar (2023) by Justice Anjani Kumar Sharan of Patna High Court.

The Supreme Court observed: "Considering the circumstances on record, in our view, the appellant is entitled to the relief claimed under Section 438 of the Code. We, therefore, allow this appeal, set-aside the order passed by the High Court and make the order dated 28.08.2023 absolute. We direct that in the event of arrest of the appellant, the Arresting Officer shall release the appellant on bail subject to furnishing cash security in the sum of Rs.25,000/- (Rupees Twenty-Five Thousand Only) with two like sureties."  

Section 438 of the Criminal Procedure Code empowers the High Court and the Sessions Court to grant anticipatory bail to a person apprehending arrest in a non-bailable offense. Initially, by its order dated 28.08.2023, the Supreme Court had granted interim protection in favour of Dulare Choudhary, the appellant.

Prior to the Supreme Court's order, Justice Anjani Kumar Sharan of Patna High Court had dismissed the application for anticipatory bail by concluding that "it is clear that there is ample evidence against the petitioner to support the prosecution case, therefore, I am not inclined to enlarge the petitioner on bail" in Dulare Choudhary Vs. State of Bihar (2023). 

His order reads: "The prayer for grant of bail on his behalf is hereby rejected" on July 20, 2023. The petitioner had approached to Court apprehending his arrest in connection with Darbhanga Sadar P.S. Case No.50 of 2022, registered for the offences punishable under Sections 420, 467, 468, 471, 409, 34 of the Indian Penal Code, pending before the Court of Chief Judicial Magistrate, Darbhanga. The prosecution case arose out of a typed report of Block Development Officer, Sadar, Darbhanga in pursuance of a memo issued by the District Magistrate. Several irregularities were found to have been committed by the accused persons in the appointment of panchayat teachers in the year 2016 and 2021 within gram panchayat Raj Kabirchak. It was alleged that the petitioner in collusion with other co-accused persons, appointed 9 panchayat teachers in the year 2016 and 2021, concealing the fact that panchayat teachers had already been appointed earlier but the vacancy was not in existence. Moreover, the panchayat teachers were appointed when code of conduct was in vogue owing to panchayat elections. An inquiry was conducted under the chairmanship of Deputy Development Commissioner. The inquiry report submitted by the committee indicated involvement of petitioner in the irregularities in the appointment of panchayat teachers. 

The petitioner's counsel had submitted that Dulare Choudhary, the petitioner was quite innocent and had committed no offence. The Block Development Officer without knowing the fact of his order of appointment has wrongly and illegally lodged the FIR against the petitioner and others and made false and incorrect statement in the F.I.R. The petitioner was posted as Panchayat Secretary in Kabrpur Gram Panchayat Raj in the district of Darbhanga and he appointed nine Niyojeet Teachers in compliance of order dated 10.08.2019 passed by the District Teacher Appointment Appellate Authority, Darbhanga in case no.07 of 2018. He further submitted that the petitioner had no option but to comply the order of the Presiding Officer District Teacher Appointment Appellate Authority, Darbhanga and as accordingly, the petitioner appointed the nine Niyojeet Teachers, hence the petitioner did not commit any offence. It was further submitted that with the similar allegation of offence in respect of appointment of 16 Niyojeet Teachers including the nine teachers appointed by the petitioner and F.I.R was lodged by the B.D.O., Darbhanga, against the petitioner and other co-accused persons and the petitioner was granted anticipatory bail by the Sessions Judge, Darbhanga in aforesaid Darbhanga Sadar P.S.Case No.281 of 2021.

It was submitted that the Block Development Officer, Darbhanga Sadar before lodging the present case against the petitioner and others did not issue any notice to the petitioner regarding appointment of 9 Niyojeet Teachers, which shows the malafide intention and malafide action of the B.D.O. It was submitted that one of the Panchayat Secretary, who was posted in Kabirchak Gram Panchayat Raj prior to the petitioner was also made accused in the FIR lodged by the Block Development Officer, Sadar Darbhanga regarding appointment of Niyojit Teachers illegally was also granted anticipatory bail by the High Court vide order dated 08.02.2023 in Cr. Misc No.1400 of 2023. The petitioner joined Kabirchak Gram Panchayat Raj as a Panchayat Secretary on 01.07.2016 and submitted his joining report in the Sadar Prakhand on 01.07.2016 and the Secretary, Ram Dinesh Rai who handed over part charge on 15.07.2016 and no document was handed over to the petitioner in the charge report handed over by Panchayat Secretary, the then Panchayat Secretary and as such the petitioner had no knowledge about appointment of the teachers and the vacancies available before taking his charge if any teacher was appointed, it was appointed by the then Secretary of the said Gram Panchayat. 

The counsel for the State opposed the prayer for grant of anticipatory bail and submitted that during the investigation done by three men committee, it found that in Panchayat Kabirchak, the process of appointment of Niyojeet Shikshak was started in the year 2008 but the appointment letters were issued in the year 2016 which is apparently illegal. After perusal of counselling register and rectified merit list it is evident that in counselling register at Sl. No.31 name of Farhan Tabsum is mentioned but in rectified merit list at Sl. No.31, name of Vandana Kumari is mentioned. The names of candidates mentioned in serial number are not available in that serial number in counselling register or names are not found in the said register. Thereafter the appointments were made in the year 2019 and 2021 on that 09 vacant post which was filled up in year 2008. It was further submitted that Panchayat Secretary, Panchayat Raj Kabirchak was issued a letter bearing memo no.26 dated 09.11.2019 in which reference of letter BRC/434 dated 28.10.2019 of Block Education Officer, Darbhanga Sadar was mentioned which was not issued from the office of B.E.O. Sadar Darbhanga which shows that the petitioner was involved in doing illegal appointment of Niyojeet Shikshak in 2009 and 2021. It was stated that the petitioner was posted as Panchayat Sachiv in Kabirchak and Balha Panchayat (Darbhanga) and allegations that after concealment of facts (only nine posts were vacant) the appointments were made to the post of Niyojeet Shikshak was/is 18 in number without any sanction post in the year 2019 and 2021 which was apparently illegal.

Patna High Court sets aside order of Sessions Judge, Darbhanga, Order of Additional Chief Judicial Magistrate-VIth, Darbhanga revived

In Bardhan Kumar Sah v State of Bihar, the Patna High Court did not find "any legality, validity or propriety in the order passed by the learned Sessions Judge, Darbhanga". It set aside its order and revived the order of Additional Chief Judicial Magistrate (A.C.J.M.)-VIth, Darbhanga passed on July 30, 2018. The Criminal Revision petition arose out of P.S. Case No.-528 Year-2018,  Darbhanga. The criminal revision has been allowed on contest.

The petitioner is the complainant of C.R. No. 528 of 2018 pending before the learned Chief Judicial Magistrate, Darbhanga. It is alleged by the complainant that on May 9, 2018, the accused persons, namely, Ganga Purbey, Suman Purbey, Ram Nath Purabey, Rimjhim Devi and Deo Narayan Sahu committed trespass into the shop of the complainant and directed him to give vacant position of the shop stating interalia that they purchased the land over which the shop was situated by a registered deed of conveyors. The complainant purchased the land prior to the accused persons and he constructed a shop there on and carries on a business of gold and silver ornaments in the said shop. 

The petitioner/complainant alleges that on May 10, 2018, the accused persons trespassed into his shop, committed mischief by causing damage to the articles and furniture of the said shop. They also broke down a railing constructed by the mason on the first floor of the said shop. They pulled the complainant, put a gamcha around his neck and pulled him down. The complainant fell down and sustained injury on his knees. One of the accused persons took away a gold chain from his neck. They also took away cash money from his pocket. 

The order records that other witnesses specifically stated that Deo Narayan Sahu, the fifth accused was along with other accused persons and he also took specific part in committing mischief and assault to the complainant. The fifth accused is the opposite party (O.P) No. 2 in the High Court.

The Magistrate found that the complainant has been able to make out a case against all the accused persons and took cognizance of offence under Sections 341/ 323/ 327/ 420/ 467/468/ 471/ 386/ 427/ 504/ 120B/ 452 and 380 of the I.P.C. 

The accused Deo Narayan Sahu moved before the Sessions Judge, Darbhanga in Cr. Rev. No. 426 of 2018 challenging the order of taking cognizance. The Sessions Judge firstly held on the basis of the submissions made by the Advocate on behalf of the accused/petitioner that real dispute between the parties relates to ownership of the subject land on which the shop room in question was constructed. Therefore, the nature of dispute is essentially civil in nature. The Sessions Judge also held that the complainant made an omnibus allegation against the petitioner and other witnesses did not specifically state the name of Deo Narayan Sahu in committing the offence. Therefore, the Sessions Judge set aside the order dated July 30, 2018 regarding taking of cognizance in respect of Deo Narayan Sahu and the revisional application was allowed.

The petitioner/complainant approached High Court against this order of the Sessions Judge, Darbhanga.

The High Court observed that the order passed by the Sessions Judge found allegation against Deo Narayan Sahu as groundless because his role in committing the offence was not specifically stated by the complainant. It further observed that the word groundless means that “there must be no ground for presuming that the accused has committed the offence”. The word groundless means that “materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.” 

The Court observed that "at the time of taking cognizance, the Court is required to see that a very strong suspicion founded upon materials before the Magistrate, which needs in to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. This presumptive opinion may justify the Trial Court to take cognizance against the accused persons. The word suspicion referred to by this Court must be founded upon materials placed before the Magistrate which needs same to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged. Therefore, the words “a very strong suspicion” used by this Court must not be a strong suspicion of a vacillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which needs same to form a presumptive opinion about the existence of factual ingredients constituting the offence alleged."

The High Court's judgement has recorded that the complainant had stated that all the accused persons came to his shop on May 9, 2018 and May 11, 2018 and committed the offence cognizance of which was
taken by the learned A.C.J.M.-VIth, Darbhanga. The other witnesses specifically stated the name of the Deo Narayan Sahu. In such a backdrop, Justice Bibek Chaudhuri concluded that 'I do not find any reason, as to why the learned Sessions Judge, Darbhanga executed (excused) O.P. No. 2 from the array of the accused persons. It is needless to say that at the time of taking cognizance of offence, only the statement of the witnesses, an inquiry report under Section 202 of the Cr.P.C. shall be taken into consideration. In the instant case, the Chief Judicial Magistrate, Darbhanga took into consideration the statement of the witnesses and found the O.P. No. 2 equally liable to face trial." As a result, the High Court upheld the reasoned order of Chief Judicial Magistrate, Darbhanga which it found to be based on  legality, validity and propriety, unlike the order by the Sessions Judge, Darbhanga. 

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Ensure compliance with Police Manual to deal with missing arms and cartridges: Chief Justice Vinod Chandran

In pursuance of public interest, Rohit Kumar, the petitioner, a practicing advocate sought an audit as well as physical verification of the arms and ammunition as well as records of arsenal and armoury kept with the Bihar Police, including the Bihar Military Police, which are situated at District Headquarters (Police Line) and the Headquarters of Bihar Military Police. 

The petitioner had filed CWJC No.11642 of 2021 in the Patna High Court. The petitioner had prayed for setting up of a Special Team by the Patna High Court to investigate cases registered under Samsatipur and Siwan Mufassil Police Stations in relation to missing of huge cache of ammunition.

The petitioner relied on the report of the Accountant General (Audit) about missing of arms and cartridges from the arsenal of Darbhanga Police Line in February 2019. He had alleged that the police officials themselves are responsible for missing of arms and ammunition, which find their way to the hands of extremists/miscreants/criminals. The Superintendent of Police(E), CID, Bihar, Patna has filed a counter affidavit. It is stated that in pursuance to the order of the Court dated August 2, 2021, details of the progress of the investigation in the referred crimes were called for. 

The order records that with respect to the Samastipur Muffasil Police Station case, 10 persons, who were from the police force itself, were arraigned as accused and on investigation, it was found that 7 of them were involved in the incident. The Investigating Officer has also requested for issuance of arrest warrant against the accused persons. 

With respect to the Siwan Mufassil Police Station case, disciplinary proceedings were initiated against two Sub-Inspectors and a Constable and punishment has been inflicted on them. 

With respect to the Konch Police Station case, 18 police personnel were arraigned as accused and Charge Sheet No. 50 of 2019 dated March 9, 2019 had been submitted in the court against five of them. It was also stated that further investigation is going on against some other named persons also. The Senior Superintendent of Police, Darbhanga had reported vide Annexure-D that there was no case of missing arms’ cache reported in the District Police Lines.

In the counter affidavit, it was also pointed out from Police Manual (Vol-1) that an annual report of arms, ammunition, equipment and stores, as on 31st March previous year, is to be submitted to the Assistant Inspector General in Police Manual Form No. 169 on the 1st of May by all districts. The certification to be made in the said form is to the effect that the articles are duly accounted for and the balance corrected, with any variation also to be indicated. Strict compliance of the Police Manual Rule is directed through Memo No. 1991 dated 16.08.2021, communicated to all the Range I.G./D.I.G./S.S.Ps and S.Ps. of Bihar. As of now, it is submitted that there is regular compliance of the Police Manual insofar as the certification to be submitted on the close of year. 

Police Manual Rule Nos. 1096, 1097 and 1098 containing detailed procedure for inspection of arms and ammunition, is also specifically referred to. The responsibility to carry out such inspection has been conferred on the Range DIG/IG and the Arms and Ammunition Inspection Team from the Police Headquarters, Patna would also be carried out. As of now, in every district, officers and men from Armory Cadre have been posted to ensure proper upkeep and maintenance of arms and ammunition. Annexure-F is the detailed report submitted by the Dy.S.P. (Armoury), Central Arms Workshop and Stores, Patna for the last five years, which inspection was carried out by the Central Arms Inspection Team. 

A supplementary counter affidavit was filed pursuant to the orders of High Court dated October 5, 2021 regarding the present status of verification of the arms and ammunition and also the investigation in cases. 

In the Samastipur Mufassil Police Station case, departmental proceedings were initiated against many named accused police officials and four have been dismissed from service after they were found guilty in the disciplinary proceedings. 

As far as the Siwan Police Station case, it was found that 35 round cartridges were allotted to a police constable and the same were robbed from him, which has also been written off from the district records. A similar article of theft having been revealed in the investigation, has also been placed on record. One pistol, which was found missing, was also deposited in the armory by the allottee, afterwards. The reports of the Superintendents of Police, Samastipur, Siwan and Gaya are produced as Annexure- A, B and C in the supplementary affidavit.

The Court observed that "We are of the opinion that the department has been cautioned on the subject matter sought to be agitated before this Court in the above writ petition in the nature of Public Interest Litigation. We see that the Police Manual also has sufficient precautionary measures to ensure the proper up keep of the armouries and enable periodic inspection of the same. Sufficient progress has also been made in the cases registered in Samastipur, Siwan and Gaya Police Stations."

The Court did not set up any Special Team to investigate cases registered under Samsatipur and Siwan Mufassil Police Stations in relation to missing of huge cache of ammunition, as per the prayer of the petitioner. The Court concluded that "We are of the opinion that the writ petition can now been disposed of directing the Department and its officials to ensure due compliance of the Police Manual." The bench of Chief Justice K. Vinod Chandran and Justice Madhuresh Prasad decided the case on April 18, 2023. The order was authored by the Chief Justice.