Patna High Court

MUKESH KUMARversusTHE STATE OF BIHAR

Decided: 1 May 2026
Disposal: ALLOWED
Bench: SANDEEP KUMAR

Holding

The order taking cognizance was unsustainable and is quashed, along with all consequential proceedings.

Summary

The petitioners, a group of family members, were charged under IPC sections 341, 323, 504 read with 34 based on an FIR filed by Shailesh Kumar, the father‑in‑law of one petitioner, alleging assault, theft and threats inside a civil court. The petitioners contended that the FIR was a retaliatory move arising from a long‑standing matrimonial dispute and that several accused were not even present at the alleged incident. They argued that the Chief Judicial Magistrate took cognizance mechanically, without applying any judicial mind, rendering the order a non‑speaking, cryptic one. The High Court examined the principles of Section 482 CrPC and relevant Supreme Court precedents on abuse of process and malicious prosecution. Concluding that the FIR was instituted with an ulterior motive and the magistrate’s order lacked factual basis, the Court quashed the order of cognizance and all consequent proceedings.

Issues considered

Whether the order of taking cognizance by the Chief Judicial Magistrate is liable to be quashed on the ground of malicious prosecution and lack of application of mind.
Whether the proceeding constitutes an abuse of process of the court punishable under Section 482 of the CrPC.

Legislation cited

Criminal Procedure Code — s. 155(2), 156(1), 202, 204, 482
Indian Penal Code — s. 323, 34, 341, 504

Subjects

malicious prosecution
abuse of process
Section 482 CrPC
cognizance
criminal procedure
matrimonial dispute
false FIR
court order quash

Judgment

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.8415 of 2020
Arising Out of PS. Case No.-11 Year-2019 Thana- PIRBAHOR District- Patna
======================================================
1. Mukesh Kumar, son of Sri Binod Kumar.
2. Karunesh Kumar @ Karuneshwar Kumar, son of Sri Binod Kumar.
3. Sumitra Devi, W/o- Binod Kumar.
4. Ritu Kumari @ Ritu Devi W/o- Rakesh Kumar.
5. Rashmi Devi @ Rashmi Kumari W/o- Rajesh Kumar.
All resident of Akharaghat, Nazipur, P.S.- Ahiyapur, District-
Muzaffarpur.
6. Rubi Devi @ Anjana Rani W/o- Uma Shankar Singh Resident of Village-
Basokund, P.O.- Vaishali, P.S.- Saraiya, District- Muzaffarpur.
7. Varsha Devi @ Vandana Rani @ Versa Devi W/o- Adarsh Singh Resident of
Village- Nauri, P.O.- Mahindwara, P.S.- Runi Saidpur, District- Sitamarhi.
8. Sahil Raj @ Sahil Kumar S/o- Vinod Kumar.
9. Dilip Kumar @ Dilip Kumar Singh S/o- Rajeshwar Singh.
Both are resident of Village- Namidih, P.O.- Ghataro, P.S.- Lalganj,
District- Vaishali.

... ... Petitioners
Versus

1. The State of Bihar
2. Shailesh Kumar S/o- Late Satya Narayan Singh Resident of House No. 4,
Road No. 8, West Anandpuri, Boring Canal Road, Patna, P.S.- Sri Krishna
Puri, District- Patna.

... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. Rakesh Kumar Samrendra, Advocate
Mr. Harsh Vardhan, Advocate
Mr. Manager Sah, Advocate
For the State : Mr. Shailendra Kumar, APP
Mr. Jharkhandi Upadhyay, APP
For the Opp. Party No.2 : Dr. Alok Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 01-05-2026

This application has been filed challenging the

order dated 26.06.2019 passed by the learned Chief Judicial
Patna High Court CR. MISC. No.8415 of 2020 dt.01-05-2026
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Magistrate, Patna, whereby the learned Magistrate has taken

cognizance against the petitioners for the offence under sections

341, 323, 504 read with section 34 of the Indian Penal Code in

connection with Pirbahore P.S. Case No.11 of 2019.

2. The present F.I.R. has been instituted by the

informant - Shailesh Kumar inter alia alleging that while the

informant was accompanying his daughter and wife for a

proceeding before the Patna Civil Court in connection with Shri

Krishnapuri P.S. Case No.60 of 2018, which was filed by his

daughter, against her husband and his family members, his son-

in-law and his family members started abusing and assaulting

his daughter inside the Court premises. It is alleged by the

informant that the accused persons also threatened him to

compromise the earlier criminal case or else the they would kill

his family members. It is also alleged that the accused Karunesh

Kumar, had also snatched Rs.2000/- from the pocket of the

informant.

3. Upon completion of investigation, the Police

submitted charge-sheet against the petitioners under sections

341, 323, 504 read with section 34 of the Indian Penal Code.

Thereafter, the learned C.J.M., Patna took cognizance against

the accused persons under sections 341, 323, 504 read with
Patna High Court CR. MISC. No.8415 of 2020 dt.01-05-2026
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section 34 of the Indian Penal Code.

4. The learned counsel for the petitioners, at the

outset, has submitted that the informant is the father-in-law of

the petitioner no.1 and on the date of occurrence, the petitioner

and his family members were present in the Patna Civil Court

for furnishing bail bonds in the Court of the learned S.D.J.M.,

Patna, and at that time, the daughter of the informant i.e. the

wife of the petitioner no.1, started abusing him and his family

members. The aforesaid incident was immediately informed to

the Presiding S.D.J.M., Patna. Subsequently, the petitioner no.3

instituted Pirbahore P.S. Case No.10 of 2019 on the alleged

assault and manhandling at the hands of the informant and his

family members. Further, a petition dated 28.01.2019 was

submitted before the Senior Superintendent of Police, Patna for

securing the CCTV footage installed in the Court premises and

conduct an impartial enquiry/ investigation in the matter.

5. It is emphasized by learned counsel for the

petitioners that the falsehood of the informant is evident from

the fact that petitioner no.8, who is arrayed as an accused in the

present F.I.R. was not even present in the Court premises on the

date of occurrence. Further, it is submitted that the petitioner

no.9, who is not an accused in the earlier case viz. Shri
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Krishnapuri P.S. Case No.60 of 2019, was present in the Court

merely to assist the other family members.

6. It is the categorical submission of learned

counsel for the petitioners that in retaliation and as a counter

blast to the Pirbahore P.S. Case No.10 of 2019 which has been

instituted by the petitioner no.3 against the informant and his

family members, the informant has instituted the present case.

7. It is argued by learned counsel for the

petitioners that on the date, when alleged incident took place in

the Court premises the petitioners were present to furnish their

bail bonds before the Court of learned S.D.J.M., Patna, however,

it is pointed out that no date was fixed in the aforesaid trial on

05.01.2019 and therefore, there was no occasion for the

informant and his family members to be present in the Court

premises on the aforesaid date. It is further argued that the

informant, who is a practicing Advocate, has deliberately

planned to attack the petitioners with an intention to harm them.

8. Learned counsel for the petitioners has also

submitted that from the perusal of the F.I.R., it is evident that

only vague and bald allegations have been made against the

petitioners and as such, the prosecution stands vitiated on the

strength of the judgment of the Hon’ble Supreme Court in the
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case of Pritam Ashok Sadabhule vs. the State of Maharasthra

& Ors. reported as (2015) 11 SCC 769.

9. It has categorically been submitted by

learned counsel for the petitioners that the impugned order by

which the cognizance has been taken against the petitioners is a

cryptic and non-speaking order as no materials have been

discussed by the learned Magistrate based on which the

cognizance has been taken.

10. By making the aforesaid submissions, it has

been submitted by learned counsel for the petitioners that the

impugned order of cognizance has been passed mechanically

without application of judicial mind and therefore, the same is

unsustainable in law.

11. It has been argued on behalf of the opposite

party no.2 that once the Police, after completing investigation,

has filed charge-sheet and once the learned Magistrate after

considering the materials available on record has proceeded to

take cognizance, this Court may not interfere with the impugned

order taking cognizance against the petitioner.

12. I have considered the submissions of the

parties and perused the F.I.R. including the order taking

cognizance.
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13. From the records, it appears that both the

parties are entangled in a matrimonial discord and have been

litigating extensively for the past several years. The present

F.I.R. has been instituted by the informant, who is the father-in-

law of petitioner no.1. Pertinently, several criminal cases as well

as a Divorce proceeding are pending between the petitioners and

informant side.

14. From the reading of the present F.I.R., it

appears that a scuffle took place inside the Court premises,

when the petitioners were present at the Civil Court, Patna to

furnish their bail bonds and for the said incident, two F.I.Rs.

have been registered in Pirbahore Police Station, both of even

date. Further, the F.I.R. appears to be a motivated one on

account of marital discord and bitterness between the parties.

The criminal proceeding could not be an instrument of

oppression or motivated harassment to settle personal grudge.

15. The Hon’ble Supreme Court in the case of

State of Haryana & Ors vs. Ch. Bhajan Lal & Ors. reported in

AIR 1992 604 has held as under:-

“102. In the backdrop of the interpretation of
the various relevant provisions of the
Code under Chapter 14 and of the
principles of law enunciated by this
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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 channelized and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of
cases wherein such a power should be
exercised.
(1) Where the allegations made in the
first information report or the
complaint, even if they are taken
at the face value and accepted in
their entirety do not prima facie
constitute any offence or make out
a case again the accused.
(2) Where the allegations in the first
information report and other
materials, if any, accompanying
the F.I.R. 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
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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 offence, 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
concerned Act (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
Patna High Court CR. MISC. No.8415 of 2020 dt.01-05-2026
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Code or the concerned Act,
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.”

16. The Hon’ble Supreme Court in the case of

Punjab National Bank v. Surendra Prasad Sinha reported in

AIR 1992 SC 1815 has held that judicial process could not be an

instrument of oppression or needless harassment. Vindication of

majesty of justice and maintenance of law and order in the

society are the prime objects of criminal justice but it could not

be the means to wreak personal vengeance.

17. It is a settled proposition of law that the

inherent powers of this Court under section 482 of the Cr.P.C.

(section 528 of the B.N.S.S.) are to be utilized sparingly and

cautiously. It is equally settled that the power must also be

exercised to do real and substantial justice.

18. Now, turning to the facts of the present case,

it appears that the present F.I.R. has been filed as a counter blast
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to the F.I.R which has been lodged by the petitioner no.3 and

propeled by the animosity between both the parties. Therefore,

this Court is of the opinion, the present F.I.R. has maliciously

been instituted against the petitioners in retaliation and with an

ulterior motive for wreaking vengeance and this kind of

malicious prosecution at the instance of the informant should

not be allowed to continue.

19. Further, from the perusal of the impugned

order taking cognizance, it appears that there is complete lack of

application of judicial mind since no material has been

discussed, based on which the learned Magistrate has taken

cognizance against the petitioners.

20. The Hon’ble Supreme Court in the case of

Pepsi Food Ltd. & Anr. vs. Special Judicial Magistrate & Ors.

reported in (1998) 5 SCC 749.

“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
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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 on 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.”
21. The Hon’ble Supreme Court in the case of

Delhi Race Club (1940) Ltd. & Ors. vs. State of U.P. & Anr.

reported in (2024) 10 SCC 690 has held as under:-

“30. The aforesaid aspect could be said to
have been completely lost sight of by the
High Court, while rejecting the
application filed by the appellant herein
under Section 482CrPC, seeking
quashing of the summoning order.
31. In Mehmood Ul Rehman v. Khazir
Mohammad Tunda [Mehmood Ul
Rehman v. Khazir Mohammad Tunda,
(2015) 12 SCC 420 : (2016) 1 SCC (Cri)
124], this Court held thus : (SCC p. 430,
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para 22)
“22. … The satisfaction on the
ground for proceeding would
mean that the facts alleged in the
complaint would constitute an
offence, and when considered
along with the statements
recorded, would, prima facie,
make the accused answerable
before the court. …In other words,
the Magistrate is not to act as a
post office in taking cognizance of
each and every complaint filed
before him and issue process as a
matter of course. There must be
sufficient indication in the order
passed by the Magistrate that he is
satisfied that the allegations in the
complaint constitute an offence
and when considered along with
the statements recorded and the
result of inquiry or report of
investigation under Section 202
CrPC, if any, the accused is
answerable before the criminal
court, there is ground for
proceeding against the accused
under Section 204 CrPC, by
issuing process for appearance.
Application of mind is best
demonstrated by disclosure of
mind on the satisfaction.… To be
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called to appear before the
criminal court as an accused is
serious matter affecting one's
dignity, self-respect and image in
society. Hence, the process of
criminal court shall not be made a
weapon of harassment.”
(emphasis supplied)
32. The principle of law discernible from the
aforesaid decision is that issuance of
summons is a serious matter and,
therefore, should not be done
mechanically and it should be done only
upon satisfaction on the ground for
proceeding further in the matter against
a person concerned based on the
materials collected during the inquiry.”

22. Therefore, it is clear that the wheel of

criminal prosecution cannot be set in motion in a mechanical

manner and the Magistrate cannot act as a mere post office

while taking cognizance of an offence. In the present case, it

appears that the present F.I.R. has been instituted with the sole

purpose of settling the personal scores between the parties, who

are entangled in a matrimonial discord and the learned

Magistrate, has failed to apply judicial mind while taking

cognizance since no material has been discussed, based on

which cognizance could have been taken against the petitioners.
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As such, the impugned order taking cognizance is a cryptic and

non-speaking one and the same is unsustainable.

23. Accordingly, this application is allowed.

Accordingly, the impugned order taking cognizance dated

26.06.2019 passed by the learned Chief Judicial Magistrate,

Patna and all consequential proceedings arising therefrom are

hereby quashed qua the petitioners.

(Sandeep Kumar, J)

pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 03.02.2026
Uploading Date 01.05.2026
Transmission Date 01.05.2026

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