Patna High Court
Md. Ashraf Khan @ TinkuversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The High Court ordered the parties to undergo mediation and granted the petitioner interim protection and pre‑arrest bail, directing that the criminal proceedings be stayed pending settlement.
Summary
The petitioner, Md. Ashraf Khan, feared arrest in a case registered under Sections 406 and 420/34 IPC alleging he fraudulently obtained Rs.6 lakh by promising a medical college admission for the informant's son. He contended that the matter was essentially a civil monetary dispute and sought an amicable settlement through mediation, requesting pre‑arrest bail. The State and the informant’s counsel agreed to appear before the District Court for mediation. Relying on Supreme Court precedents interpreting Section 482 CrPC and the distinction between criminal breach of trust and cheating, the High Court directed that the parties be referred to the District Mediation Centre and that the petitioner be released on pre‑arrest bail pending settlement. The Court further ordered that if a settlement is reached the criminal case be withdrawn, otherwise the petitioner’s interim protection would lapse.
Issues considered
- Whether the dispute underlying the FIR is a civil matter masquerading as a criminal offence.
- Whether the High Court should exercise its inherent powers under Section 482 CrPC to stay or quash the criminal proceedings.
- Whether the petitioner is entitled to pre‑arrest bail pending mediation.
Legislation cited
- Code of Criminal Procedure — s. 482
- Indian Penal Code — s. 34, 406, 420
Subjects
- criminal breach of trust
- cheating
- mediation
- pre‑arrest bail
- Section 482 CrPC
- civil dispute
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.61054 of 2025
Arising Out of PS. Case No.-178 Year-2024 Thana- HABIBPUR District- Bhagalpur
======================================================
Md. Ashraf Khan @ Tinku S/O Late Raish Khan Resident of Village-
Imampur, P.S.- Habibpur, District- Bhagalpur
... ... Petitioner/s
Versus
1. The State of Bihar
2. Shyam Prasad Mandal S/O Late Mehtar Mandal, Village- Bhairopur
Satghara, P.S.- Habibpur, District- Bhagalpur
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Md.Najmul Hodda, Advocate
For the Opposite Party/s : Mr.Sucheta Yadav, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
4 11-02-2026 Heard learned counsels appearing on behalf of the
petitioner and the learned APP for the State.
2. The petitioner apprehends his arrest in connection
with Habibpur P.S.Case No.178 of 2024, registered under
Sections 406 and 420/34 of IPC.
3. As per the allegations made in the FIR, the
petitioner on the pretext of getting the son of the informant
enrolled in Medical College fraudulently took Rs.6,00,000/-.
4. Learned counsel appearing on behalf of the
petitioner submitted that the petitioner is innocent and he has
falsely been implicated in the present case. He further submitted
that the matter primarily relates to monetary transaction between
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the parties and for amicable settlement of dispute between the
parties outside the Court, the matter be referred for mediation.
5. Learned APP appearing on behalf of the State and
learned counsel for the informant submitted that a chance be
given for amicable settlement of the dispute outside the court.
6. Learned counsel appearing on behalf of the parties,
on instructions, submitted that the parties have agreed to appear
before the learned District Court at 10:30 A.M. on 18.02.2026.
7. Heard the parties
8. Having considered the rival submissions made on
behalf of the parties, as well as, having perused the allegation
made in the FIR, I am of the opinion that an opportunity is
required to be given to the parties to settle their score amicably
outside the Court.
9. In this regard, I find it apt to take note of the
observation made by the Apex Court in case of Paramjeet
Batra v. State of Uttarakhand reported in (2013) 11 SCC 673,
in which, the Apex Court in paragraph no. 12 has held as
follows:
"12. While exercising its jurisdiction
under Section 482 of the Code the High Court has
to be cautious. This power is to be used sparingly
and only for the purpose of preventing abuse of the
process of any court or otherwise to secure ends of
justice. Whether a complaint discloses a criminal
offence or not depends upon the nature of facts
alleged therein. Whether essential ingredients of
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criminal offence are present or not has to be
judged by the High Court. A complaint disclosing
civil transactions may also have a criminal texture.
But the High Court must see whether a dispute
which is essentially of a civil nature is given a
cloak of criminal offence. In such a situation, if a
civil remedy is available and is, in fact, adopted as
has happened in this case, the High Court should
not hesitate to quash the criminal proceedings to
prevent abuse of process of the court."
(emphasis supplied)
10. The Apex Court has reiterated the aforesaid
proposition in recent judgment of S. N. Vijayalakshmi & Ors.
vrs. The State of Karnataka and Anr. reported in (2025) SCC
Online SC 1575.
11. The Apex Court while considering the content of
ingredients of Sections 406 and 420 of the Indian Penal Code in
the case of Delhi Race Club (1940) Ltd. & Ors. vs. State of
Uttar Pradesh & Anr. in Criminal Appeal No. 3114 of 2024,
after discussing the earlier law laid down in several cases, has
observed in paragraphs nos. 35, 36 and 37, inter alia as follows:
Difference between criminal breach of trust
and cheating
35. This Court in its decision in S.W.
Palanitkar v. State of Bihar S.W. Palanitkar v. State of
Bihar, (2002) 1 SCC 241 expounded the difference in the
ingredients required for constituting of an offence of
criminal breach of trust (Section 406 IPC) vis-à-vis the
offence of cheating (Section 420). The relevant observations
read as under :
“9. The ingredients in order to constitute a
criminal breach of trust are : (i) entrusting a person with
property or with any dominion over property; (ii) that
person entrusted : (a) dishonestly misappropriating or
converting that property to his own use; or (b) dishonestly
using or disposing of that property or wilfully suffering any
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other person so to do in violation (i) of any direction of law
prescribing the mode in which such trust is to be
discharged, (ii) of any legal contract made, touching the
discharge of such trust.
10. The ingredients of an offence of cheating
are : (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 of omission should be one which causes or is
likely to cause damage or harm to the person induced in
body, mind, reputation or property.”
36. What can be discerned from the above is
that the offences of criminal breach of trust (Section 406
IPC) and cheating (Section 420 IPC) have specific
ingredients:
In order to constitute a criminal breach of
trust (Section 406 IPC)
(1) There must be entrustment with person for
property or dominion over the property, and
(2) The person entrusted:
(a) Dishonestly misappropriated or converted
property to his own use, or
(b) Dishonestly used or disposed of the
property or wilfully suffers any other person so to do in
violation of:
(i) Any direction of law prescribing the
method in which the trust is discharged; or
(ii) Legal contract touching the discharge of
trust (see : S.W. Palanitkar [S.W. Palanitkar v. State of
Bihar, (2002) 1 SCC 241.
Similarly, in respect of an offence under
Section 420IPC, the essential ingredients are:
(1) Deception of any person, either by making
a false or misleading representation or by other action or
by omission;
(2) Fraudulently or dishonestly inducing any
person to deliver any property, or
(3) The consent that any person shall retain
any property and finally intentionally inducing that person
to do or omit to do anything which he would not do or omit
(see : Harmanpreet Singh Ahluwalia v. State of Punjab
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[Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7
SCC 712.
37. Further, in both the aforesaid sections,
mens rea i.e. intention to defraud or the dishonest intention
must be present, and in the case of cheating it must be there
from the very beginning or inception."
12. The parties have willingly desired to appear
before the learned District Court on 18.02.2026, so that the
matter can be referred to the District Mediation Centre.
13. Learned District Court is directed to take
necessary steps to refer the matter before the learned Mediator
of the District Mediation Center by fixing a date for appearance
of the parties to give effect to “Mediation for the Nation 2.0”.
14. Learned Mediator of the District Mediation Center
concerned, upon appearance of the parties, shall make his/her
best efforts to settle the dispute amicably and thereafter submit
his/her report before the concerned learned District Court, well
within a period of three months, till then, no coercive action
shall be taken against the petitioner in connection with the
aforesaid case.
15. In case, the parties resolve their dispute amicably
or arrive at a mutual settlement, in light of the law laid down by
the Apex Court as referred hereinabove, the petitioner is
required to be released on pre-arrest bail on such terms and
conditions as the learned District Court deems it fit and proper.
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16. In case of failure on the part of the petitioner to
appear on 18.02.2026 before the learned District Court or any
date fixed by the learned Mediator, the interim protection
granted to the petitioner shall automatically lose its force.
17. In case, it is deliberate on the part of the
informant to reconcile, then in that case, the interim protection
granted to the petitioner shall continue and the trial shall
proceed in accordance with law.
18. In case, the parties fail to reconcile, then in that
case, parties may avail appropriate remedy. Then also, petitioner
is directed to be released on pre-arrest bail on such terms and
conditions as the learned District Court deems it fit and proper.
19. If both the parties arrive at amicable settlement,
then they must withdraw the criminal cases, if any, which they
have lodged against each other.
20. With aforesaid direction and observation, the
present application stands disposed of.
(Purnendu Singh, J)
chn/-
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