Patna High Court
Amit Sinha @ Amit Kumar Sinha vs State Of Bihar And Anr on 10 January, 2025
Author: Jitendra Kumar
Bench: Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.55327 of 2016
Arising Out of PS. Case No.-3288 Year-2012 Thana- GOPALGANJ COMPLAINT CASE
District- Gopalganj
======================================================
Amit Sinha @ Amit Kumar Sinha S/o Late Jagdishwer Prasad Sinha, Resident
of Devi Bhawan, Near Area Kadam Kuan, P.S.- Kadam Kuan, District- Patna
at Present posted as District Sub Register, Gopalganj.
... ... Petitioner
Versus
1. The State Of Bihar
2. Hari Mohan Pandey, S/o Late Mahendra Pandey, Resident of Turkaha Tola,
P.S.- Gopalganj, Distt.- Gopalganj.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner/s : Mr. Mukeshwar Dayal, Advocate
Mr. Vikas Mohan, Advocate
For the State : Mr. Arbind Kumar Pandey, APP
For the O.P. No.2 : Mr. Vishwajeet Kumar Mishra, Advocate
Mr. Aakash Chaudhary, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 10-01-2025
The present petition, under Section 482 Cr.PC, has
been preferred by the petitioner for quashing the impugned
order dated 03.08.2016 passed by learned Additional District &
Sessions Judge-III, Gopalganj in Cr. Revision No. 1034 of 2013
and the order dated 11.07.2013 passed by learned Judicial
Magistrate Ist Class in Criminal Complaint Case No. 3288 of
2012, whereby learned Sessions Court has dismissed the
revision petition upholding the order dated 11.07.2013, whereby
ld. Judicial Magistrate has directed issuance of summons against
the accused including the petitioner finding prima facie case
under Sections 417 and 465 of the Indian Penal Code.
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
2/18
Prosecution Case
2. The criminal proceeding was initiated by the
Criminal Complaint bearing No. 3288 of 2012 filed by one Hari
Mohan Pandey, who is O.P. No.2 herein alleging that the land in
question belongs to him on account of gift deed executed by
Ramchandra Pandey and he is in possession of the property.
However, co-accused Rameshwar Pandey, claiming to be
adopted son of Ramchandra Pandey, has executed sale deed of
the land to co-accused Anand Mishra, who is also part of
conspiracy of the illegal transaction and accused Amit Kumar
Sinha, who is petitioner herein was Sub-Registrar, Gopalganj,
where the sale deed was executed by the accused Rameshwar
Pandey in favour of the co-accused Ramashish Pandey. The
alleged date of occurrence have been mentioned in the
complaint as 26.09.2012, 06.09.2012 and 30.08.2012.
Factual background
3. During enquiry, the complainant was examined
under Section 200 of Cr.PC and thereafter, learned Judicial
Magistrate directed issuance of summons against the accused
including the petitioner finding prima facie case under Sections
417 and 465 of the Indian Penal Code. Petitioner subsequently
preferred criminal revision against the summoning order dated
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
3/18
11.07.2013
bearing Crminal Revision No. 1034 of 2013, which
was rejected by learned Addl. District & Sessions Judge-III,
gopalganj by the impugned order dated 03.08.2016.
4. I heard learned counsel for the Petitioner, learned
APP for the State and learned counsel for the Opposite Party
No.2.
Submissions on behalf of the Petitioner
5. Learned counsel for the Petitioner submits that the
Petitioner is a government official, posted as District Sub-
Registrar, Gopalganj and he has been implicated only on
account of his being District Sub-Registrar at Gopalganj. There
is no any other specific allegation against the Petitioner in the
complaint. He further submits that no government official can
be prosecuted unless there is sanction for the prosecution
granted by Competent Authority under Section 197 Cr.PC. But
in the present case, no sanction has been obtained, whereas the
alleged registration of sale-deed by the District Sub-Registrar,
Gopalganj has been done in discharge of his official duty and in
such situation grant of sanction is sine qua non for institution
and continuation of the prosecution of the District Sub-
Registrar, Gopalganj.
6. He further submits that even as per the alleged facts
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
4/18
and circumstances, no offence is made out. In fact, it is a dispute
of civil nature in regard to right and title to the property left
behind by deceased Ramchandra Pandey and the accused
Rameshwar Pandey, who has executed sale deed as son of
Ramchandra Pandey. However, as per the complainant,
Ramchandra Pandey died issueless and he had executed gift
deed in favour of the complainant and hence, Rameshwar
Pandey has no right and title to the property and therefore, he
has no right to sell the same. As per the sale deed, the Accused
Rameshwar Pandey is 18 years old and he is son of Ramchandra
Pandey though, the complainant is denying that he is adopted
son of Ramchandra Pandey. As such, alleged facts and
circumstances, constitute a dispute of civil nature and the same
could be adjudicated only by Civil Court, but no offence at all is
made out as per the alleged facts and circumstances. He further
submits that even if it is assumed that the land sold by
Rameshwar Pandey belongs to the complainant, there is no loss
to the complainant because it is a settled principle of law that no
one can transfer better title than his own and as such, there is no
loss to the complainant. Moreover, sale deed is genuine though
the claim of the seller/Accused Rameshwar Pandey that he is
son of deceased Ramchandra Pandey, is contested by the
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
5/18
complainant saying that Ramchandra Pandey died issueless and
Accused Rameshwar Pandey is not adopted son of deceased
Ramchandra Pandey.
7. As such, as per Ld. Counsel for the Petitioner, the
alleged facts and circumstances constitute, at most, a dispute of
purely civil nature. Hence, the impugned order and the whole
complaint is liable to be quashed.
Submissions on behalf of State and O.P. No.2
8. However, Ld. APP for the State and Ld. Counsel
for the Opposite Party No. 2 submit that there is no illegality or
infirmity in the impugned order and hence, the present petition
is liable to be dismissed.
9. He also refers to and relies upon the judgment of
this Court namely, Amit Sinha Vs. The State of Bihar and
Anr., as reported in 2024 SCC OnLine Pat 6330 and AIR
ONLINE 2024 PAT 468.
Scope and ambit of Section 482 Cr.PC
10. Before I proceed to consider the rival submissions
of the parties, it would be pertinent to see the scope and ambit of
Section 482 of the Cr.PC. Here it would be profitable to refer to
Amit Sinha Case (Supra), wherein this Court, after referring to
relevant statutory provisions and binding judicial precedents,
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
6/18
has held that for taking cognizance of any offence and issuing
summons to any accused in a complaint case, there must be a
prima facie offence made out on the basis of the allegation made
in the complaint and the statements made by the complainant
and his witnesses during inquiry under Section 202 Cr.PC.
However, such allegation or the statements should not be
patently absurd and inherently improbable to a prudent mind.
Moreover, the allegation/statements made in the complaint and
during inquiry under Section 200 Cr.PC should be examined as
a whole, but the veracity of such statements could not be
examined at this stage. The statements have to be taken at their
face value to see whether prima facie case is made out or not.
Moreover, if the given set of facts makes only a civil dispute,
the complaint or the cognizance/summoning order should be
quashed to prevent abuse of the process of court and promote
ends of justice.
Whether a prima facie case is made out against the
Petitioner.
11. Now, the question for consideration is, whether the
allegation made in the complaint or the statement of the
witnesses as recorded in support of the same taken at their face
value make out any case against the accused.
12. As per the allegation in the complaint and the
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
7/18
statements of the complainant and his witnesses during inquiry
under Section 200 Cr.PC, Ld. Magistrate, has taken cognizance
of offences punishable Sections 417 and 465 of the Indian Penal
Code vide the impugned order dated 20.03.2013.
13. Section 417 of the Indian Penal Code provides for
punishment for committing cheating. Section 415 of the Indian
Penal Code defines cheating. In Ram Das Vs. State of U.P.,
1970 (2) SCC 740, Hon’ble Supreme Court has analysed the
ingredients of the offence of cheating as under:
“(i) there should be fraudulent or dishonest inducement of
a person by deceiving him;
(ii) (a) The person so deceived should be induced to
deliver any property to any person, or to consent that any
person shall retain any property; or
(b) the person so deceived should be intentionally induced
to do or omit to do anything which he would not do or
omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should
be one which causes or is likely to cause damage or harm
to the person induced in body, mind, reputation or
property.”
14. Hon’ble Supreme Court had occasion to consider
the similar facts and circumstances in Mohammed Ibrahim &
Ors. Vs. State of Bihar & Anr., [(2009) 8 SCC 751] which
had traveled from the district of Madhubani, Bihar. In this case
also, the complainant had made allegation that his land was sold
by the accused without having any title to the land. The co-
accused were witnesses, scribe and vendor in regard to the sale-
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
8/18
deed. Here, explaining the ingredients of cheating, Hon’ble
Supreme Court held as follows:
“18…………………………………………………..
(i) deception of a person either by making a false or
misleading representation or by dishonest concealment or
by any other act or omission;
(ii) fraudulent or dishonest inducement of that person to
either deliver any property or to consent to the retention
thereof by any person or to intentionally induce that
person so deceived to do or omit to do anything which he
would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause
damage or harm to that person in body, mind, reputation
or property.
19. To constitute an offence under Section 420, there
should not only be cheating, but as a consequence of such
cheating, the accused should have dishonestly induced the
person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable
security (or anything signed or sealed and which is
capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the
purchaser under such sale deed to allege that the vendor
has cheated him by making a false representation of
ownership and fraudulently induced him to part with the
sale consideration. But in this case the complaint is not by
the purchaser. On the other hand, the purchaser is made a
co-accused.
21. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or
misleading representation or by any other action or
omission, nor is it his case that they offered him any
fraudulent or dishonest inducement to deliver any property
or to consent to the retention thereof by any person or to
intentionally induce him to do or omit to do anything
which he would not do or omit if he were not so deceived.
Nor did the complainant allege that the first appellant
pretended to be the complainant while executing the sale
deeds. Therefore, it cannot be said that the first accused by
the act of executing sale deeds in favour of the second
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
9/18
accused or the second accused by reason of being the
purchaser, or the third, fourth and fifth accused, by reason
of being the witness, scribe and stamp vendor in regard to
the sale deeds, deceived the complainant in any manner.”
(Emphasis supplied)
15. As such, representation by the Accused to the
deceived doing fraudulent or dishonest inducement is sine qua
non for making out offence under Section 415 of the Indian
Penal Code. But in the case on hand, I find that there is no
allegation of the Complainant that any Accused has made any
representation to him to part with any property. As such, for
want of any representation, question of any fraudulent or
dishonest inducement of the Complainant does not arise.
16. Moreover, the complainant has not parted with
any property to the Accused persons, nor has he executed the
sale-deed. As such, his title, if any, to the land in question, is
still safe, because his title cannot get conveyed to purchaser if
the conveyance deed/sale-deed has been executed by someone
else, who is not possessed of the title to the land in question. A
purchaser can get the title conveyed only if the seller has title to
the property. It is a settled principle of law that no one can
transfer better title than his own, as Hon’ble Supreme Court in
Eureka Builders Vs. Gulabchand, (2018) 8 SCC 67, has
clearly held as follows:
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
10/18“35. It is a settled principle of law that a person can
only transfer to other person a right, title or interest in any
tangible property which he is possessed of to transfer it for
consideration or otherwise. In other words, whatever
interest a person is possessed of in any tangible property,
he can transfer only that interest to the other person and no
other interest, which he himself does not possess in the
tangible property.
36. So, once it is proved that on the date of transfer
of any tangible property, the seller of the property did not
have any subsisting right, title or interest over it, then a
buyer of such property would not get any right, title and
interest in the property purchased by him for consideration
or otherwise. Such transfer would be an illegal and void
transfers.”
(Emphasis supplied)
17. Here, it would be also pertinent to refer to JIT
Vinayak Arolkar Vs. State of Goa & Ors. ( Criminal Appeal
No. 393 of 2024) as decided by Hon’ble Apex Court just four
days back on 06.01.2025. In that case, undivided share in landed
property was sold by the accused and the FIR was lodged by the
co-sharer. In this case, Hon’ble Supreme Court quashed the FIR
holding as follows, relying upon Mohammed Ibrahim Case
(Supra):
“12.1 In this case, it is impossible to understand
how the appellant deceived the 4th respondent and
how the act of execution of sale deeds by the
appellant caused or was likely to cause damage or
harm to the 4th respondent in body, mind, reputation or
property. The appellant has not purported to execute
the sale deeds on behalf of the 4th respondent. He has
not purported to transfer the rights of the 4 th
respondent. There is no allegation that the appellant
deceived the 4th respondent to transfer or deliver the
subject property.”
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
11/18
(Emphasis supplied)
18. Hence, there is no question of application of
Section 417 of the Indian Penal Code to the alleged facts and
circumstances of the case against the Accused Persons including
the Petitioner.
19. As for application of Section 465 IPC, this Section
provides for punishment for forgery. Forgery has been defined
in Section 463 of the Indian Penal Code which provides as
follows:
“463. Forgery.–Whoever makes any false documents or
false electronic record or part of a document or electronic
record, with intent to cause damage or injury, to the public
or to any person, or to support any claim or title, or to
cause any person to part with property, or to enter into any
express or implied contract, or with intent to commit fraud
or that fraud may be committed, commits forgery.”
20. The basic ingredients of forgery as explained by
Hon’ble Supreme Court in Sushil Suri V. Central Bureau of
Investigation, [AIR 2011 SC 1713] are as follows:
“(1) The making of a false document or part of it and (2)
such making should be with such intention as is specified
in the section, viz., (a) to cause damage or infringe to (i)
the public, or (ii) any person; or (b) to support any claim
or title; or (c) to cause any person to part with property, or
(d) to cause any per son to enter into an express or implied
contract; or (e) to commit fraud or that fraud may be
committed.”
21. Section 464 of the Indian Penal Code defines
making of false documents. It reads as follows:
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
12/18“464. Making a false document. —
A person is said to make a false document or false
electronic record–First — Who dishonestly or
fraudulently–
(a)makes, signs, seals or executes a document or part of a
document;
(b)makes or transmits any electronic record or part of any
electronic record;
(c)affixes any electronic signature on any electronic
record;
(d)makes any mark denoting the execution of a document
or the authenticity of the electronic signature,
with the intention of causing it to be believed that such
document or part of document, electronic record or
electronic signature was made, signed, sealed, executed,
transmitted or affixed by or by the authority of a person by
whom or by whose authority he knows that it was not
made, signed, sealed, executed or affixed; or
Secondly — Who, without lawful authority, dishonestly or
fraudulently, by cancellation or otherwise, alters a
document or an electronic record in any material part
thereof, after it has been made, executed or affixed with
electronic signature either by himself or by any other
person, whether such person be living or dead at the time
of such alteration; or
Thirdly — Who dishonestly or fraudulently causes any
person to sign, seal, execute or alter a document or an
electronic record or to affix his electronic signature on any
electronic record knowing that such person by reason of
unsoundness of mind or intoxication cannot, or that by
reason of deception practised upon him, he does not know
the contents of the document or electronic record or the
nature of the alteration.
Illustrations
22. Here, again it would be profitable to refer to
Mohammed Ibrahim Case (Supra), wherein Hon’ble Supreme
Court clearly held as follows:
“17. When a document is executed by a person claiming a
property which is not his, he is not claiming that he is
someone else nor is he claiming that he is authorised by
someone else. Therefore, execution of such document
(purporting to convey some property of which he is not
the owner) is not execution of a false document as defined
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
13/18under Section 464 of the Code. If what is executed is not a
false document, there is no forgery. If there is no forgery,
then neither Section 467 nor Section 471 of the Code are
attracted.”
(Emphasis supplied)
23. Hon’ble Supreme Court in Randheer Singh Vs.
State of U.P., [(2021) 14 SCC 626], also held as follows:
“24. A fraudulent, fabricated or forged deed could mean a
deed which was not actually executed, but a deed which
had fraudulently been manufactured by forging the
signature of the ostensible executants. It is one thing to
say that Bela Rani fraudulently executed a power of
attorney authorising the sale of property knowing that she
had no title to convey the property. It is another thing to
say that the power of attorney itself was a forged,
fraudulent, fabricated or manufactured one, meaning
thereby that it had never been executed by Bela Rani. Her
signature had been forged. It is impossible to fathom how
the investigating authorities could even have been prima
facie satisfied that the deed had been forged or fabricated
or was fraudulent without even examining the apparent
executant Bela Rani, who has not even been cited as a
witness.
(Emphasis supplied)
24. In the given case on hand also, there is no
allegation of impersonation by any accused person while
executing the sale-deed in question. No one has forged signature
of the complainant or anybody else. Accused, Rameshwar
Pandey has executed the sale-deed in regard to the land in
question in favour of his co-Accused, claiming to be son of
Ramchandra Pandey who has already died. Hence, the sale-
deed in question is not a forged document. It is genuine one.
Whether the sale-deed in question conveys title to the transferee
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
14/18
is a legal question to be decided by competent Civil Court. But
Sections 465 of the Indian Penal Code does not get attracted
against the Accused Persons including the Petitioner.
25. Hence, in my view, the complaint does not
disclose any offence, much less any offence under Sections 417
and 465 of the Indian Penal Code. The alleged facts and
circumstances of the present case, at most, constitute a dispute
of purely civil nature between the parties for which remedy lies
before a civil court by filing appropriate civil suit.
Whether the Petitioner is entitled to protection
u/s 197 Cr.PC.
26. I also find that the impugned order against the
petitioner is not sustainable in view of the provisions of Section
197 Cr.PC also, which provides protection to Public Servants
against prosecution for any offence alleged to have been
committed by him while acting or purporting to act in the
discharge of his official duty, debarring any court to take
cognizance of such offence, except with the previous sanction of
the appropriate government. In the case on hand, undisputedly
no such sanction has been granted against the petitioner and as
per the allegation, the petitioner was Sub-Registrar, Gopalganj
at the time of registration of the sale deed in question. Needless
to say that registration of sale deed is part of official duty of any
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
15/18
Sub Registrar of any district. Hence, in the case on hand,
sanction was required before taking cognizance of the alleged
offence and issuing summons against the Petitioner.
27. The object and purpose underlying Section 197
Cr.PC is, as held by this Court in Kumar Arun Prakash case
(Supra), after referring to statutory provision and case laws, to
afford protection to public servants against frivolous, vexatious
or false prosecution for offences alleged to have been committed
by them while acting or purporting to act in the discharge of
their official duty. The larger interest of efficiency of State
administration demands that public servants should be free to
perform their official duty fearlessly and undeterred by
apprehension of their possible prosecution at the instance of
private parties to whom annoyance or injury may have been
caused by their legitimate acts done in the discharge of their
official duty. This Section is designed to facilitate effective and
unhampered performance of their official duty by public
servants, by providing for scrutiny into the allegations of
commission of offence by them by their superior authorities and
prior sanction for their prosecution as a condition precedent to
the cognizance of the cases against them by the Courts.
28. As per judicial precedents, it is settled law that if
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
16/18
the alleged offence has been committed by the public servant in
discharge of his official duty, the protection as provided under
Section 197 Cr.PC comes into play and the public servant
concerned cannot be prosecuted unless there is sanction granted
by the competent authority for his prosecution. However, the
alleged act/offence should not be totally unconnected with the
official duty. There must be reasonable connection between the
official duty of the public servant and the alleged act/offence.
Official duty implies the act or omission done by the public
servant in course of his service and in discharge of his duty. In
other words, Section 197 Cr.PC does not apply to acts done
purely in a private capacity by the public servant. Reliance is
placed on the following authorities:
(i) Pukhraj Vs. State of Rajasthan, (1973) 2 SCC 701
(ii) State of Orissa Vs. Ganesh Chandra Jew, (2004) 8 SCC 40
(iii) P. Arulswami Vs. State of Madras, AIR 1967 SC 776
(iv) B. Saha Vs. M.S. Kochar, (1979) 4 SCC 177
(v) Om Prakash Vs. State of Jharkhand, (2012) 12 SCC 72
(vi) D. Devaraja Vs. Owais Sabeer Hussain, (2020) 7 SCC 695
29. In Shreekantiah Ramayya Munipalli Vs. State of
Bombay, (1954) 2 SCC 992, Hon’ble Supreme Court has held
if Section 197 Cr.PC is construed too narrowly, it can never be
applied, for of course it is no part of an official’s duty to commit
an offence and never can be. But it is not the duty we have to
examine so much as the act, because an official act can be
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
17/18
performed in the discharge of official duty as well as in
dereliction of it.
30. As such, I find that the prosecution of the Petitioner
on the basis of the complaint filed against him by the
Complainant cannot continue for want of sanction as provided
undedr Section 197 Cr.PC because in State of Haryana Vs.
Bhajan Lal [1992 Suppl (1) SCC 335], Hon’ble Supreme
Court has clearly held, amongst other things, that in case of any
bar of institution or continuation of prosecution under any
provisions of law, the Court can invoke inherent power under
Section 482 Cr.PC to prevent the abuse of the process of the
Court and secure the ends of justice.
Conclusion/Finding of this Court
31. Hence, the impugned order is not sustainable in
the eye of law and it is liable to be quashed and set aside under
Section 482 Cr.PC to prevent the abuse of the process of Court
and meet the ends of justice.
32. Accordingly the present petition is allowed,
quashing and setting aside the impugned order dated 03.08.2016
passed by learned Additional District & Sessions Judge-III,
Gopalganj in Cr. Revision No. 1034 of 2013 and the order dated
11.07.2013 passed by learned Judicial Magistrate Ist Class,
Patna High Court CR. MISC. No.55327 of 2016 dt.10-01-2025
18/18
Gopalganj in Criminal Complaint Case No. 3288 of 2012 with
reference to the Petitioner.
(Jitendra Kumar, J.)
Ravishankar/
Chandan-
AFR/NAFR AFR CAV DATE NA Uploading Date 15.01.2025. Transmission Date 15.01.2025.