Patna High Court
Nityanand Roy @ Nityanand Rai vs The State Of Bihar on 17 June, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.17279 of 2023
Arising Out of PS. Case No.-129 Year-2018 Thana- NARPATGANJ District- Araria
======================================================
Nityanand Roy @ Nityanand Rai Son Of Late Ganga Vishnu Rai R/O
Vill.- Karanpura, P.S.- Ganga Bridge (Hajipur), Distt.- Vaishali.
... ... Petitione
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr.Naresh Dikshit, Advocate
Mr.Brij Bihari Tiwary, Advocate
For the Opposite Party/s : Mr.Jharkhandi Upadhyay, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
Date : 17-06-2025
Heard Mr. Naresh Dikshit, learned counsel appearing
on behalf of the petitioner and Mr. Jharkhandi Upadhyay,
learned A.P.P. for the State.
2. The present petition is being preferred under
section 482 of the Code of Criminal Procedure (in short, the
'Cr.P.C.') for setting aside the order dated 13.04.2022
passed in Narpatganj P.S. Case No. 129 of 2018, G.R. No.
653 of 2018 by learned Chief Judicial Magistrate, Araria,
whereby and whereunder the learned Magistrate took
cognizance for the offences under section 153 of the Indian
Penal Code (in short, the 'I.P.C.') and section 125 of the
Representation of People Act (hereinafter referred to as the
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
2/15
"R.P. Act") and issued summon against the petitioner.
3. The brief case of the prosecution as it appears from
the written information of Circle Officer, Narpatganj, District -
Araria, that on 09.03.2018, while addressing a meeting in the
campus of the High School, Narpatganj, the petitioner, who
was at that point of time president of Bhartiya Janata Party,
Bihar (in short the 'BJP'), gave provoking public speech which
was in violation of the Model Code of Conduct. It is further
alleged that petitioner gave hatred speech against the RJD
candidate namely, Md. Sarfaraz Alam to the extent that if Md.
Sarfaraz Alam wins the election in that case Araria will
become the centre of ISIS.
4. On the basis of the aforesaid written information,
police registered Narpatganj P.S. Case No. 129 of 2018
against the petitioner for the offences under section 153A of
the IPC and section 125 of the R.P. Act and submitted a
charge-sheet, accordingly, on the basis of available materials,
learned jurisdictional Magistrate took cognizance for the
offences punishable under section 153 of the I.P.C. and 125
of the R.P. Act.
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
3/15
5. Mr. Naresh Dikshit, learned counsel appearing on
behalf of the petitioner submitted that the petitioner, at the
relevant point in time, was the BJP State President, and
presently he is the Minister of State for Home Affairs,
Government of India, implicated falsely with the present case
out of oblique and ulterior political motive.
6. It is submitted by Mr. Dikshit that written
information itself suggests that no name of any religion or
community was taken by the petitioner. No illegal act was
done by this petitioner also as to constitute the offence under
section 153 of the I.P.C. It is submitted that the complaint
was not made by the RJD candidate directly rather in
connivance with Circle Officer, the present case was lodged
against the petitioner. It is submitted that ISIS is a militant
group and is not connected with any particular religion.
7. It is further submitted by learned counsel that
cognizance is barred by the provision of limitation also.
8. It is submitted that in view of the allegation, no
prima-facie case is made out, and, therefore, the impugned
order of cognizance dated 13.04.2022, is fit to be set-
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
4/15
aside/quashed by importing the legal ratio as available
through State of Haryana and Ors. Vs. Bhajan Lal and
Ors [(1992) Supp (1) SCC 335].
9. Mr. Dikshit, also relied upon the legal report of this
Hon'ble Court as available through Navjot Singh Sidhu Vs.
State of Bihar reported in 2023 SCC OnLine Pat 6186.
10. Mr. Jharkhandi Upadhyay, learned A.P.P. for the
State despite of giving several opportunities since
22.03.2023
through different orders of this Court, failed to
file a counter affidavit and, therefore, the matter was heard
on the basis of materials available on the record in terms of
order dated 25.07.2023, and also in terms of order dated
09.05.2025 of this Court.
11. At the outset, it would be relevant to reproduce
the written information dated 10.03.2018 and cognizance
order dated 13.04.2022, which read as under for ready
reference:
“dk;kZy; vapy vf/kdkjh ujirxat] vjfj;k] 13797
i=kad 355@ fnukad 10-03-18
izs’kd]
vapy vf/kdkjh
ujirxat vjfj;kA
lsok esa]
Fkkuk/;{k]
ujirxat FkkukA
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
5/15fo’k;%& Jh fuR;kuan jk;] izns”k v/;{k ¼Hkkjrh; turk ikVhZ½ ds }kjk vknZ”k vkpkj
lafgrk ds mYya?ku fd;s tkus ds dkj.k izkFkfedh ntZ djus ds laca/k esaA
egk”k;]
mi;qZDr fo’k; ds laca/k esa lqfpr djrs gq, dguk gS fd dy fnukad 09-03-
18 dks mPp fo|ky;] ujirxat ifjlj esa fof/kor ,d f[kM+dh dks’kkax] vjfj;k ls
lHkk vk;kstu djus gsrq vuqefr izkIr dj Jh mekuan jk; ds }kjk lHkk dk vk;kstu
fd;k x;k FkkA lHkk ds nkSjku Jh fuR;kuUn jk;] izn”s k v/;{k ¼Hkk0t0ik0½ ds }kjk
vkifRrtud ,oa /kkfeZd Hkkoukvksa dks vkgr djus laca/kh HkM+dkm Hkk’k.k fn;k x;k]
tks Li’V;k vknZ”k vkpkj lafgrk dk mYya?ku gSA muds }kjk fn;s x;s Hkk’k.k ds
nkSjku jktn izR;k”kh eks0 ljQjkt vkye dk uke ysrs gq, dgk x;k gS fd vxj
oks thr x;k rks vjfj;k vkbZ-,l-vkbZ-,l dk vM~Mk cu tk,xkA
vr% vuqjks/k gS fd lqlaxr /kkjkvksa ds vUrxZr izkFkfedh ntZ dh tk;A
vuqyXud% C.D dh dkih layXuA
fo”oklHkktu
g0@&
Registered Narpatganj P.S Case vapy vf/kdkjh
No.129/18 dt 10-03-18 u/s 153 ‘A’ ujirxat] vjfj;kA
IPC & 125 Representation of fu”kkar dqekj mez 31 o’kZ
People Act 1951.
ASI Sifait Yadav will please s/o Lo0 ij"kqjke flag
investigate this case. xzke&fcjksfcxgk
Sunil Kumar iks0& fldUnjiqj
10.03.18 Fkkuk&"kdqjkckn
SHO ftyk&tgkukckn
Narpatganj P.S
Cognizance order dated 13.04.2022
IN THE COURT OF C.J.M., ARARIA
Narpatganj P.S. Case No. 129/2018
G.R. No. 653/2018
State Vs. Nityanand Roy
13.04.2022:
Record was put up today in which I.O. has already
submitted charge sheet no. 574/2021 dated 31.10.2021
against the accused persons namely, Nityanand Roy for the
offences punishable u/s 153 of the I.P.C. & 125 R.P. Act.
Heard the Ld. D.P.O. on the point of cognizance.
Perused the case diary as well as material available on
the record i.e. reports etc. on perusal of the case diary along
with relevant documents, I find that there is sufficient material
available on the record, which compels the court to draw
inference that prima-facie case is made out against the accused
namely, Nityanand Roy. Considering the material available on
the record.
Accordingly, congizance for the offences u/s 153 of
the I.P.C. & 125 R.P. Act is taken against the accused shown in
column no. 11 of the charge sheet. The case record is
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
6/15transferred to the special court of M.P./M.L.A. (A.C.J.M.-1),
Araria for trial and disposal in accordance with law. Put up on
04.07.2022 for Appearance. O/c directed to issue Sumon
against the above-mentioned accused person.
(Dictated)
Sd/-
C.J.M.
12. It would be apposite to reproduce the provision of
section 153 of the I.P.C. and Section 125 of the R.P. Act,
1951, also for ready reference:
“153. Wantonly giving provocation with intent to
cause riot–if rioting be committed–if not committed.
–Whoever malignantly, or wantonly, by doing anything
which is illegal, gives provocation to any person intending or
knowing it to be likely that such provocation will cause the
offence of rioting to be committed, shall, if the offence of
rioting be committed in consequence of such provocation, be
punished with imprisonment of either description for a term
which may extend to one year, or with fine, or with both; and
if the offence of rioting be not committed, with
imprisonment of either description for a term which may
extend to six months, or with fine, or with both.”
Section 125 of the R.P. Act, 1951
125. Promoting enmity between classes in connection
with election.– Any person who in connection with an
election under this Act promotes or attempts to promote on
grounds of religion, race, caste, community or language,
feelings of enmity or hatred, between different classes of
the citizens of India shall he punishable, with imprisonment
for a term which may extend to three years, or with fine, or
with both.]
[125A. Penalty for filing false affidavit, etc.–A
candidate who himself or through his proposer, with intent
to be elected in an election,–
(i) fails to furnish information relating to sub-section (1) of
section 33A; or
(ii) give false information which he knows or has reason to
believe to be false; or
(iii) conceals any information,
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
7/15in his nomination paper delivered under sub-section (1) of
section 33 or in his affidavit which is required to be delivered
under sub-section (2) of section 33A, as the case may be,
shall, notwithstanding anything contained in any other law
for the time being in force, be punishable with imprisonment
for a term which may extend to six months, or with fine, or
with both.]”
13. At the outset, it would be relevant to understand
the meaning of word ‘Malignantly’ & ‘Wantonly’ as
incorporated in section 153 of I.P.C. In a reported matter
Kahanji (1893) 18 Bom 758, 775, it was held by the
court that the word ‘Malignantly’ implies a sort of general
malice. ‘Malignantly’ and ‘Maliciously’ both are synonymous to
each other. ‘Malice’ is not, as in ordinary speech, implies only
an expression of hatred or ill-will to an individual, rather it
means an unlawful act done intentionally without just cause or
excuse as it was held in Bromage V. Prosser [(1825) 4B
& C 247]. The word ‘Malignant’ bear some more values to
the extent constituting the act having nature of extreme
malevolence or enmity something violently hostile or harmful.
14. The word ‘Wantonly’ as per 10th Edition of Black’s
Law Dictionary implies reckless, heedless, malicious,
characterized by extreme recklessness or foolhardiness;
recklessly disregardful of the rights or safety of others or of
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
8/15consequences. In its ordinarily accepted sense connotes
perverseness exhibited by deliberate and uncalled for
conduct, recklessness, disregardful of rights and an
unjustifiable course of action. Wanton acts and omissions
imply those acts and omissions done in such a manner or
under such circumstances as to indicate that a person of
ordinary intelligence actuated by normal and natural concern
for the welfare and safety of his fellowmen who might be
affected by them could not be guilty of them unless wholly
indifferent to their probable injurious effect or consequences.
15. This High Court, while dealing the matter of Kori
Vs. State [AIR 1952 Pat 138] held that if the act is not
illegal however Wanton, however undesirable, however
deplorable the act may have been, there could be no offence
committed under section 153. Citing example, it was said by
this Court that if there is no provision under law which could
make the killing of a cow an offence, it is impossible to hold
the act of person in killing of cow in the open is an illegal act,
although it may have been Wanton and one which was
deplorable.
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
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16. Thus, from the aforesaid discussed proposition of
law, it can be straightway gathered that to make offence
under this section, there must be an illegal act.
17. Now coming to the case in hand, it appears from
the written information that the petitioner alleged to express
through his public speech that if the candidate of RJD namely,
Md. Sarfaraz Alam will win the election, it would amount to
make “Araria” as a base of ISIS. The written information
nowhere discloses that any hatred speech was given in the
name of religion, caste etc. The ISIS no doubt is a militant
outfit having no connection with any religion. There is no
harm to any religious sentiment to any particular community.
Admittedly, no illegal act was done by the petitioner. Mere
showing an apprehension that in case the candidate of a
particular party will win the election may create the base of
ISIS (a militant outfit) in Araria, district of Bihar, cannot be
said that the speech was Malignant in nature or was wantonly
in terms of its dictionary meanings as discussed aforesaid.
18. From the written information, which is the basis of
FIR, it appears that speech of petitioner has not been made to
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
10/15promote or attempting to promote the ground of religion,
caste or community or language feeling of enmity or hatred
between the parties. The written information and cognizance
order both are silent on these issues making the impugned
cognizance order non-speaking to the extent that petitioner
be summoned to join criminal trial.
19. In this context, it would be relevant to reproduce
paras 28, 29 & 30 of Pepsi Food Ltd. Vs. Special Judicial
Magistrate [(1998) 5 SCC 749], which reads as under:
“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 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 scrutinise 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.
29. No doubt the Magistrate can discharge the accused at
any stage of the trial if he considers the charge to be
groundless, but that does not mean that the accused
cannot approach the High Court under Section 482 of the
Code or Article 227 of the Constitution to have the
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
11/15proceeding quashed against him when the complaint does
not make out any case against him and still he must
undergo the agony of a criminal trial. It was submitted
before us on behalf of the State that in case we find that
the High Court failed to exercise its jurisdiction the matter
should be remanded back to it to consider if the complaint
and the evidence on record did not make out any case
against the appellants. If, however, we refer to the
impugned judgment of the High Court it has come to the
conclusion, though without referring to any material on
record, that “in the present case it cannot be said at this
stage that the allegations in the complaint are so absurd
and inherently improbable on the basis of which no prudent
man can ever reach a just conclusion that there exists no
sufficient ground for proceedings against the accused”. We
do not think that the High Court was correct in coming to
such a conclusion and in coming to that it has also
foreclosed the matter for the Magistrate as well, as the
Magistrate will not give any different conclusion on an
application filed under Section 245 of the Code. The High
Court says that the appellants could very well appear
before the court and move an application under Section
245(2) of the Code and that the Magistrate could discharge
them if he found the charge to be groundless and at the
same time it has itself returned the finding that there are
sufficient grounds for proceeding against the appellants. If
we now refer to the facts of the case before us it is clear to
us that not only that allegation against the appellants do
not make out any case for an offence under Section 7 of
the Act and also that there is no basis for the complainant
to make such allegations. The allegations in the complaint
merely show that the appellants have given their brand
name to “Residency Foods and Beverages Ltd.” for bottling
the beverage “Lehar Pepsi”. The complaint does not show
what is the role of the appellants in the manufacture of the
beverage which is said to be adulterated. The only
allegation is that the appellants are the manufacturers of
bottle. There is no averment as to how the complainant
could say so and also if the appellants manufactured the
alleged bottle or its contents. His sole information is from
A.K. Jain who is impleaded as Accused 3. The preliminary
evidence on which the first respondent relied in issuing
summons to the appellants also does not show as to how it
could be said that the appellants are manufacturers of
either the bottle or the beverage or both. There is another
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
12/15aspect of the matter. The Central Government in the
exercise of their powers under Section 3 of the Essential
Commodities Act, 1955 made the Fruit Products Order,
1955 (for short “the Fruit Order”). It is not disputed that
the beverage in question is a “fruit product” within the
meaning of clause (2)(b) of the Fruit Order and that for the
manufacture thereof certain licence is required. The Fruit
Order defines the manufacturer and also sets out as to
what the manufacturer is required to do in regard to the
packaging, marking and labelling of containers of fruit
products. One of such requirements is that when a bottle is
used in packing any fruit products, it shall be so sealed that
it cannot be opened without destroying the licence number
and the special identification mark of the manufacturer to
be displayed on the top or neck of the bottle. The licence
number of the manufacturer shall also be exhibited
prominently on the side label on such bottle [clause (8)(1)
(b)]. Admittedly, the name of the first appellant is not
mentioned as a manufacturer on the top cap of the bottle.
It is not necessary to refer in detail to other requirements
of the Fruit Order and the consequences of infringement of
the Order and to the penalty to which the manufacturer
would be exposed under the provisions of the Essential
Commodities Act, 1955. We may, however, note that in
Hamdard Dawakhana (Wakf) v. Union of India [AIR 1965
SC 1167 : (1965) 2 SCR 192] an argument was raised
that the Fruit Order was invalid because its provision
indicated that it was an Order which could have been
appropriately issued under the Prevention of Food
Adulteration Act, 1954.This Court negatived this plea and
said that the Fruit Order was validly issued under the
Essential Commodities Act. What we find in the present
case is that there was nothing on record to show if the
appellants held the licence for the manufacture of the
offending beverage and if, as noted above, the first
appellant was the manufacturer thereof.
30. It is no comfortable thought for the appellants to be
told that they could appear before the court which is at a
far off place in Ghazipur in the State of Uttar Pradesh, seek
their release on bail and then to either move an application
under Section 245(2) of the Code or to face trial when the
complaint and the preliminary evidence recorded makes
out no case against them. It is certainly one of those cases
where there is an abuse of the process of the law and the
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
13/15
courts and the High Court should not have shied away in
exercising their jurisdiction. Provisions of Articles 226 and
227 of the Constitution and Section 482 of the Code are
devised to advance justice and not to frustrate it. In our
view the High Court should not have adopted such a rigid
approach which certainly has led to miscarriage of justice in
the case. Power of judicial review is discretionary but this
was a case where the High Court should have exercised it.”
20. It would also be apposite to reproduce para 102
of Bhajan Lal case (supra), which reads 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
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
14/15offence, 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
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.”
21. Taking note of the aforesaid factual and legal
discussion and on the basis of materials available on record, it
can be safely said that the written information, which is the
basis of Narpatganj P.S. Case No. 129/2018, prima-facie
does not constitute any offence, further, the impugned order
of cognizance, which is under challenge, does not appear to
speak as to suggest how a prima-facie case is made out under
sections 153 of the I.P.C. and 125 of the R.P. Act against the
petitioner. It seems that same was drawn mechanically.
22. Accordingly, the impugned order dated
13.04.2022 as passed by learned Chief Judicial Magistrate,
Patna High Court CR. MISC. No.17279 of 2023 dt.17-06-2025
15/15
Araria in connection with Narpatganj P.S. Case No. 129 of
2018, G.R. No. 653 of 2018, qua petitioner is hereby
quashed/set-aside with all its consequential proceedings, if
any.
23. This application stands allowed.
24. Let a copy of this judgment be sent to the court
concerned immediately for necessary compliance.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR AFR CAV DATE 13.05.2025 Uploading Date 17.06.2025 Transmission Date 17.06.2025