Patna High Court
Rajan Kumar Yadav @ Rajan Yadav vs The State Of Bihar on 15 July, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.32966 of 2018
Arising Out of PS. Case No.-45 Year-2005 Thana- BAKHTIYARPUR District- Patna
======================================================
Rajan Kumar Yadav @ Rajan Yadav S/o Late Ram Govind Singh, R/o House
No. 1, Saraswati Niwas, Dr. Ram Govind Singh Path, P.S.- Kankarbagh, Dis-
trict- Patna.
... ... Petitioner
Versus
The State Of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Kunal Tiwary, Advocate
For the Opposite Party : Mr. Amitesh Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 15-07-2025
Heard learned counsel for the petitioner and learned
APP for the State.
2. By way of this application, the petitioner has
challenged the order dated 30.08.2005 passed by the learned
Additional Chief Judicial Magistrate, Barh, in connection with
Bakhtiyarpur P.S. Case No.45 of 2005, whereby the learned
Magistrate has taken cognizance against the petitioner under
Section 171(H) of the Indian Penal Code and under section 3 of
the Bihar Prevention of Defacement of Property Act.
3. As per the F.I.R., the Sub-Divisional Officer,
Barh had issued a direction for removing the posters/banners of
the candidates belonging to different political parties which
were put on the walls/poles and to further lodge F.I.R. against
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them. Acting upon the said directions, the informant along with
other police personnel visited different places which falls under
the jurisdiction of Bakhtiyarpur police station and during
inspection found different posters/banners of various candidates
of different political parties hanging on the walls/poles. It is also
alleged that the poster/banner of the petitioner, who belongs to
the Congress party, was also found to be hanging on the
pole/wall. Accordingly, the present F.I.R. has been lodged
against the nine candidates including the present petitioner.
4. Learned counsel for the petitioner submits
that from perusal of the F.I.R., it appears that there is no specific
allegation against the petitioner and he has no concern at all
with respect to the place where the alleged posters/banners were
hanged. He further submits that even if the statements made in
the F.I.R. is taken to be true then also no specific allegation
against the petitioner has been made in the F.I.R. and only a
statement that a poster belonging to the Congress party
candidate was found hanging on the pole/wall. Further, there is
absolutely not even a whisper of allegation against the petitioner
being involved in any activity or that he was present while the
police officials were on patrolling duty.
5. It has been submitted by learned counsel for
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the petitioner that admittedly in the said election from
Bakhtiyarpur Constituency, the Congress party never contested
the election and was in alliance with other political parties and
in the said constituency, the candidates of Lok Jan Sakti Party
was contesting.
6. It is the case of the prosecution that the name
of the petitioner was written on the alleged poster/banner but the
submission of the petitioner is that the mere fact that the name
of the petitioner was written on the poster/banner does not mean
that it was put up by the petitioner himself. Moreover, the
petitioner has no concern with the area from where the alleged
posters/ banners were seized since the Congress party was not
contesting the election from that area and was in fact in alliance
with other political parties.
7. Further submission of the petitioner is that
the alleged posters/banners may have been putting on the
Pole/wall by a person, who has ill motive towards the petitioner
or the same might have been done in connivance with the rivals
having malicious intention towards the petitioner. Therefore, the
argument of the petitioner is that the whole prosecution story
has been procured by the informant having ill motive and mala
fide intention towards the petitioner and he has falsely and
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deliberately been implicated at the behest of the political rivals.
8. It has further been submitted that pursuant to
the F.I.R. the police filed the charge-sheet mechanically against
the petitioner and other accused persons under section 171-H of
the Indian Penal Code and under section 3 of the Bihar
Prevention of Defacement of Property Act and the Court below
without appreciating the facts in its right perspective and
without applying the judicial mind has taken cognizance against
the petitioner under the aforesaid sections.
9. Learned counsel for the petitioner has relied
upon the decision of the Hon’ble Supreme Court rendered in the
case of Pepsi Food Limited and Anr. vs. Special Judicial
Magistrate and Others reported in (1998) 5 SCC 749 wherein it
has been held as under:-
“Summoning of an accused in a Criminal Case
is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that
the Complainant has to bring only two witnesses
to support his allegation in the Complaint to
have the criminal law set into motion. The order
of the Magistrate summoning the accused must
reflect that he has applied his mind to the fact of
the case and the law applicable thereto. He has
to examine the nature of allegations made in the
Complaint and evidence both oral and
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be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the
time of recording of preliminary evidence before
summoning of the accused. The Magistrate has
to carefully scrutinize the evidence brought on
record and may even himself put questions to
the Complainant and his witnesses to elicit
answers to find out the truthfulness of the
allegations or otherwise and then examined if
any offence is prima facie committed by all or
any of the accused.”
10. Learned counsel for the petitioner has also
relied upon the decision of the Hon’ble Supreme Court rendered
in the case of G. Sagar Suri vs. State of Uttar Pradesh reported
as (2000) 2 SCC 636 and has submitted that in the aforesaid
case, the Hon’ble Supreme Court has held that before issuing
process, a criminal court has to exercise a great deal of caution.
11. He has also relied upon the decision of the
Hon’ble Supreme Court rendered in the case of Dayle De’souza
vs. Government of India & Anr. reported as (2021) 20 SCC 135
and has submitted that in the aforesaid case it has been held that
it is the duty of the Court not to issue summons in a mechanical
and routine manner which would frustrate the detailed
procedure given under the Cr.P.C.
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12. Lastly, learned counsel for the petitioner has
also relied upon the decision of the Hon’ble Supreme Court in
the case of State of Haryana vs. Bhajan Lal, reported in 1992
Supp (1) SCC 335.
13. Learned APP appearing on behalf of the State
opposes the application by submitting that the Magistrate after
going through the materials available on record has rightly taken
cognizance against the petitioner and therefore, there the
impugned order taking cognizance does not require any
interference.
14. Considered the submissions of the parties
and perused the material on record.
15. At this stage, it would be apposite to
reproduce the section 171-H of the Indian Penal Code, 1860
which reads as under :-
“171H. Illegal payments in connection with an
election.–Whoever without the general or
special authority in writing of a candidate
incurs or authorises expenses on account of the
holding of any public meeting, or upon any
advertisement, circular or publication, or in any
other way whatsoever for the purpose of
promoting or procuring the election of such
candidate, shall be punished with fine which
may extend to five hundred rupees:
Provided that if any person having incurred any
such expenses not exceeding the amount of ten
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from the date on which such expenses were
incurred the approval in writing of the
candidate, he shall be deemed to have incurred
such expenses with the authority of the
candidate.”
16. From a close reading of the aforesaid penal
provision, it is clear that unless authorized by a candidate to
incur any expense in connection with the promotion by way of
advertisement, circular or publication or any other way
whatsoever or procuring the election of such candidate, such
acts would be illegal. Therefore, the section is directed against a
person other than the candidate contesting himself without
whose authorization the person has acted for the promotion of
the candidate in the election process. Moreover, the
classification of the offence under section 171-H of the IPC is
non-cognisable, bailable and triable by Magistrate of 1st Class as
per first schedule of the Cr.P.C and would therefore require
permission from jurisdictional Magistrate to proceed with the
investigation under section 155(2) of the Code of Criminal
Procedure, 1973. However, it may be noted that in the present
case the prosecution has also invoked section 3 of the
prevention of Defacement of Property Act, 1987 which is a
cognizable offence as declared under section 4 of the aforesaid
statute.
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17. This Court in the case of Prakash Jha vs.
The State of Bihar (Cr. Misc. No. 43543 of 2010) has culled
out the essential ingredients under section 171-H and observed
as under:-
“12. The essential ingredients of the offence
punishable under Section 171H of the IPC are
as follows:-
(i) An election is impending;
(ii) The candidate has not given any
general or special authority to the
accused in writing to spend money at the
election;
(iii) The accused made unauthorized
expenses on-
(a) public meeting,
(b) advertisement or circular or
publication, or
(c) in any other way;
(iv) The accused did it for promoting, or
procuring the election of the candidate;
(v) Such unauthorized expenses exceeding
the sum of Rs.10 were not ratified in
writing by the candidate within 10 days of
the expenditure
18. Therefore, the import of the section 171-H is
that it penalises a person who incurs any expense in promotion
or otherwise, as described under the aforesaid provision, to act
in connection with an electoral process without the general or
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special authority of the candidate contesting the election.
19. Turning to the facts of the present case, it
appears that the petitioner was not himself contesting from the
aforesaid constituency. The mere fact that the name of the
petitioner appears on the alleged banner/poster, in itself is not
sufficient to invoke section 171-H of the I.P.C. Further, there is
no material available on record to establish that the petitioner
was himself involved with the illegal promotion, as described
under section 171-H, in connection with the election process or
that he was acting for promotion of another candidate without
such candidate’s authority. Upon perusal of the materials
available on record, it would clearly manifest that section 171-H
is not applicable in the present case. There is no allegation that
the petitioner himself acted in any way to promote or procure
the election of any candidate. The only strand connecting the
petitioner is the mere fact that the name of the petitioner figures
on the seized alleged banner/posters which would in itself not
suffice to attract the rigors of section 171-H of the I.P.C.
20. Moreover, the penal provision for
defacement of property is also not attracted since there is also
no material available on record to fasten the petitioner with the
offence of defacement of property. There is no whisper that the
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petitioner was himself involved in the act of defacement of the
property. The entire criminal proceedings appear to have been
initiated only on the basis of suspicion stemming from the mere
fact that the seized banner/poster figures the name of the
petitioner. The continuance of the criminal proceedings against
the petitioner in absence of any direct material linking the
petitioner with the act of defacement would not be sustainable.
21. Turning to the order taking cognizance, this
Court in the case of Dharmesh Prasad Verma vs. The State of
Bihar (Cr. Misc. 41702 of 2015) had observed as under :-
“27. The need for proper application of mind by the
courts at the stage of summoning has been
highlighted by the Supreme Court in Pepsi
Foods Ltd. and Another Vs. Special Judicial
Magistrate and Others, reported in (1998) 5
SCC 749, in para 28 as follows:-
“28. Summoning of an accused in a criminal
case is a serious matter. Criminal law
cannot be set into motion as a matter of
course. It is not that the complainant has
to bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order of
the Magistrate summoning the accused
must reflect that he has applied his mind
to the facts of the case and the law
applicable thereto. He has to examine the
nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and
would that be sufficient for the
complainant to succeed in bringing
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11/13charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinize the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused.”
28. It would be trite to remark that taking of
cognizance and summoning of accused in a
criminal case has serious consequence on the
liberty of an accused, as pursuant to such order,
he is made to take bail and face trial for a
criminal offence. An order of cognizance passed
in a standardized format by filling up the only
perfunctory details buttress an ex facie lack of
application of mind in the order of taking
cognizance and summoning an accused.
29. In Fakhruddin Ahmad Vs. State of Uttaranchal
and Another, reported in (2008) 17 SCC 157,
once again, in paragraph 17, the Supreme Court
has held as follows:-
“17. Nevertheless, it is well settled that
before a Magistrate can be said to have
taken cognizance of an offence, it is
imperative that he must have taken notice
of the accusations and applied his mind
to the allegations made in the complaint
or in the police report or the information
received from a source other than a
police report, as the case may be, and the
material filed therewith. It needs little
emphasis that it is only when the
Magistrate applies his mind and is
satisfied that the allegations, if proved,
would constitute an offence and decides
to initiate proceedings against the alleged
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that he has taken cognizance of the
offence. Cognizance is in regard to the
offence and not the offender.”
22. Upon a close perusal of the order taking
cognizance, it would be apparent that while taking cognizance
against the petitoiner the learned Magistrate has even not
discussed the facts and materials available on record and
therefore, there is no proper application of judicial mind.
23. In view of the discussions made hereinabove
and keeping in mind the facts of the present case particularly the
complete absence of any direct material on record to fasten the
petitioner with the offences under section 171-H or the
defacement of public property, I am of the considered view that
that allowing the prosecution to continue would amount to
abuse of the process of the law. The only thread linking the
petitioner with the offences being the seizure of alleged
banners/posters is insufficient to attract the rigors of the
aforesaid offences. Even the order taking cognizance is silent on
the materials upon which cognizance was taken by the
magistrate under section 171-H of the I.P.C. and section 3 of the
Prevention of Defacement of property Act, 1987.
24. Considering the aforesaid facts of the case
and also considering the law laid down by the Hon’ble Supreme
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Court in the case of State of Haryana vs. Bhajan Lal reported
as 1992 Supp. (1) SCC 335, this application is allowed.
Consequently, the impugned order dated 30.08.2005 passed by
the learned Additional Chief Judicial Magistrate, Barh, in
connection with Bakhtiyarpur P.S. Case No.45 of 2005 is hereby
quashed with respect to the present petitioner.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R. CAV DATE N/A. Uploading Date 16.07.2025 Transmission Date 16.07.2025.
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