Patna High Court
Gopal Kumar GoyalversusThe State of Bihar through the Principal Secretary, Home Dep., Gov. of Bihar, Patna
- Decided
- Disposal
- DISMISSED
Holding
The High Court held that the orders taking cognizance and the subsequent proceedings, including transfer to the Sessions Court and framing of charges, are valid and do not suffer any infirmity.
Summary
The petitioners were charged under several IPC offences (420, 467, 468, 471, 120B) and UAPA provisions (17, 18, 18B, 21, 38, 40) following a police raid on an ATM. They contended that the State had taken cognizance without obtaining the sanction required under the NIA Act and that the High Court’s earlier Full Bench decision in Bahadur Kora v. State of Bihar overruled the Division Bench view in Aasif’s case, rendering the proceedings ultra vires. The trial court transferred the case to a Sessions Court and later framed charges on 18 Oct 2023, which the petitioners claimed was premature. The Patna High Court examined the Full Bench judgment, held that the State’s investigation and the Sessions Court’s jurisdiction were proper, and found no prejudice from the date‑setting discrepancy. Consequently, the writ application was dismissed as having no merit.
Issues considered
- Whether the order taking cognizance of offences under the IPC and UAPA without prior NIA sanction is valid.
- Whether the Full Bench judgment in Bahadur Kora v. State of Bihar supersedes the Division Bench decision in Aasif’s case regarding jurisdiction of UAPA offences.
- Whether the transfer of the case to the Sessions Court and the subsequent framing of charges were lawful.
- Whether the alleged error in the date of charge‑framing caused prejudice to the accused.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 227
- Indian Penal Code — s. 120B, 420, 467, 468, 471
- National Investigation Agency Act, 2008 — s. 6, 7
- Unlawful Activities (Prevention) Act — s. 17, 18, 18B, 21, 38, 40
Subjects
- Unlawful Activities (Prevention) Act
- National Investigation Agency Act
- Criminal Procedure Code
- Writ jurisdiction
- Cognizance
- Sessions Court
- Charge framing
- Jurisdiction
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.539 of 2024
Arising Out of PS. Case No.-454 Year-2013 Thana- LAKHISARAI District- Lakhisarai
======================================================
1. Gopal Kumar Goyal S/o Chhabi Nath Sah R/o vill - Purani Bazar,
Loharpatti, Lakhisarai, P.S. and Distt. - Lakhisarai
2. Ganesh Prasad S/o Late Laxmi Narayan Prasad Resident at Laxmi Complex,
near Bhu Kailash Temple, Surrajgarh, P.s. - Surajgarha, Distt. - Lakhisarai
3. Pawan Kumar S/o Parmanand Gupta Resident at Purani Bazar, Near Block
Lakhisarai, P.s and Distt. - Lakhisarai
4. Vikash Kumar @ Ravi Raj S/o Binay Shankar Gupta @ Binay Sao R/o vill -
Nista, P.S. - Surajgarha, Distt. - Lakhisarai
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home Department,
Government of Bihar, Patna
2. The Director General of Police, Bihar, Patna
3. The District Magistrate, Lakhisarai
4. The Superintendent of Police, Lakhisarai
5. The Sub-Divisional Police Officer-cum-Investigating Officer, Lakhisarai
6. The Station House Officer (SHO), Lakhisarai P.S.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Manohar Prasad Singh, Advocate
Ms. Kumari Kalpana Mishra, Advocate
For the Respondent/s : Mr.Sarvesh Kumar Singh, A.A.G. 13
Mr. Anjaneya Singh, AC to AAG-13
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
7 11-03-2026 Heard learned counsel for the petitioners and learned
AAG-13 for the State of Bihar.
2. The present writ application has been preferred
seeking the following reliefs:-
(I) For issuance of appropriate writ in the
nature of CERTIORARI to quash the
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
2/15
order dated 18.10.2023 (Annexure-P/9)
passed by the Addl. District and Sessions
Judge-II, Lakhisarai in Sessions Trial No.
236/2023 by which he has framed charges
against the petitioners and other for the
offence u/s 420/34, 467/34, 468/34,
471/34, 120B IPC and 17, 18, 18 (C), 21,
38,40 of the Unlawful Activities
Prevention Act (U.A.P.A) and proceeded
for evidence on the basis of order taking
cognizance of the offence by the learned
District and Sessions Judge, Lakhisarai,
on 24.11.2014 (Annexure-P/4) against the
settled principle of law laid down by a
Full Bench of this Hon'ble Court by an
order dated 27.03.2015 (Annexure-P/5) in
Cr. App. (F.B.) 149 of 2015 Bahadur Kora
Versus The State of Bihar.
(II) Further to issue an appropriate writ by
quashing the erroneous order taking
cognizance dated 24.11.2014 (Annexure-
P/4) passed by the learned Court below
for the offence u/s 420, 467, 471, 120B of
the IPC and 17,18,18(c), 21, 38, 40 of the
U.A.P. Act without taking any step of
special Act of Schedule cases, against the
principle laid down by a Full Bench of
this Hon'ble Court, by an order dated
27.03.2015 passed in Cr.App. (F.B.)
No.149 of 2015 (Annexure-P/5) having
no Jurisdiction rather invalid and
unlawful. and proceeded for trial after
framing Chages by an order dated
18.10.2023 (Annexure-P/9) u/s 420/34;
467/34; 468/34; 471/34, 120B of the IPC
and 17,18,18B,21,38,40 of the U.A.P. Act,
1967 against the petitioners and others,
(III) For issuance of an appropriate writ in
the nature of MANDAMUS to command
the learned Judicial Officer, Civil Courts
Lakhisari to not to go beyond the settled
principle of law decided by the Higher
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
3/15
Courts and to pass the orders in
accordance with law,
(IV) Further for issuance of an appropriate
writ by commanding the Respondent
authorities to do their duties in accordance
with law which has not followed in the
instant case and submitted charge sheet
No.11/2014 dated 03.02.2014 (Annexure-
P/2) with vitiated investigation against the
petitioners upon which Cognizance of the
offences u/s 420,467,468,471,120B of the
IPC and 17, 18, 18B, 21, 38, 40 of UAP
Act had taken earlier and the same has
already been set aside by this Hon'ble
Court by an order dated 04.08.2014
passed in Cr.W.J.C. No. 487/2014
(Annexure-P/3).
(V) For issuance of writ(s), order(s) and
direction(s) for that the petitioners are
entitled to get relief by this Hon'ble Court
as provided under the law.
Brief facts of the case
3. The informant who was a police officer in Kabaiya
police station got a secret information that some miscreants had
gathered near the ATM of HDFC bank and they were trying to
withdraw the money or to deposit the same with a view to
monetarily help the terrorists. There were information that these
people were indulged in making of fake ATMs or opening bank
accounts in fake names or in the name of innocent people
according to the direction of the Pakistani miscreants. The SHO
along with some police personnel went to verify the same, he
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
4/15
found two vehicles standing near the ATM of HDFC bank and
the persons were on look out for either withdrawing or
depositing the money in the bank. The informant of the case
having verified the information requested the SHO, Lakhisarai
to reach the ATM of HDFC bank for cooperation and then the
informant along with other officers reached Chaiti Durgasthan
near Bazar Samiti where they carried out the operation. Some
persons were arrested with the mobiles and ATM cards
descriptions of which have been provided in the written report
giving rise to the present FIR registered for the offences
punishable under Section 420, 467, 468, 471 and 120B of the
Indian Penal Code (in short ‘IPC’) and Sections 17, 18, 18B, 21,
38 and 40 of the Unlawful Activities (Prevention) Act (in short
hereinafter referred to as the ‘UAP Act’). The investigation
begun by recording the statement of the witnesses under Section
161 Cr.P.C.
4. It is the case of the petitioners that no report was
sent to the State of Bihar under UAP Act and under Section 6
and 7 of the National Investigation Agency Act, 2008 (in short
‘N.I.A. Act’). A charge-sheet bearing No.11/2014 dated
03.02.2014 was submitted, it is submitted that no previous
sanction was obtained. On 22.05.2014, the learned Chief
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
5/15
Judicial Magistrate took cognizance of the offences under
Sections 420, 467, 468, 471 and 120B IPC. The said order
taking cognizance was challenged before this Court in Cr.W.J.C.
No.487 of 2014 (Aasif P.K. @ Md. Aaripha @ Aasif @ Md.
Aasipha @ Md. Aasif @ Aarif Vs. The State of Bihar & Ors.)
and this Court was pleased to set aside the said order vide order
dated 04.08.2014 passed in Cr.W.J.C. No.487 of 2014
(Annexure-P/3). The Hon’ble Division Bench having found that
no special court has been constituted under the NIA Act, hence
power of the N.I.A. court is to be exercised by the Sessions
Judge of the Division where scheduled offence has been
committed.
Thereafter, the learned Sessions Judge, Lakhisarai by an
order dated 24.11.2014 took cognizance of the offences under
Sections 420, 467, 471 and 120B IPC and also under Sections
17, 18, 18C, 21, 38 and 40 of the UAP Act. This time the order
taking cognizance was taken in the light of the order dated
04.08.2014 passed in Cr.W.J.C. No.487 of 2014.
5. It is a matter of record that the decision rendered by
the Hon’ble Division Bench in Cr.W.J.C. No.487 of 2014 came
to be considered by a Full Bench of this Court in a batch of
Cr.Appeal (F.B.) No.149 of 2015 (Bahadur Kora Vs. The State
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
6/15
of Bihar) with analogous matters filed under Section 21(4) of
the N.I.A. Act. The Full Bench did not approve the views of the
Hon’ble Division Bench taken in Cr.W.J.C. No.487 of 2014 (in
short referred to as ‘Aasif’s case’). The judgment of the Hon’ble
Full Bench of this Court has been brought on record as
Annexure-P/5 to this writ application, the operative part of the
same will be reproduced hereinafter at an appropriate stage.
6. It appears from the record that in view of the
decision of the Hon’ble Full Bench, the petitioners filed an
application before the learned District and Sessions Judge,
Lakhisarai on 18.05.2015 with a prayer to transfer the case to
the court of learned A.C.J.M., Lakhisarai as it was contended on
behalf of the petitioners that none of the steps has been taken
under the N.I.A. Act as provided for the offences so alleged and
the case has been investigated by the State agency under Cr.P.C.
and as such trial of the case under the UAP Act is vitiated,
invalid and unlawful. It is stated that on the same day, the
learned court transferred the case to the court of learned
Additional Chief Judicial Magistrate, Lakhisarai for its trial and
disposal.
7. After eight years, vide order dated 05.08.2023, the
learned Judicial Magistrate, 1st Class, Lakhisarai committed the
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
7/15
records and sent it to the court of Sessions for trial. The
contention of the petitioners is that the learned Judicial
Magistrate did not follow the direction of the learned District
and Sessions Judge, Lakhisarai and had wrongly transferred the
records to the court of Sessions. Annexure-P/7 is the order
passed by the learned Judicial Magistrate in which the operative
part records that the cognizance has been taken under the
various provisions of the IPC and the provisions of the UAP Act
against the accused which are exclusively triable by the court of
Sessions, therefore the case is to be committed.
8. It is stated that on 13.09.2023, the petitioners filed
an application under Section 227 of the Cr.P.C. before the
learned Additional District and Sessions Judge-II, Lakhisarai
with a prayer to send the records of the case to the court of
learned A.C.J.M., Lakhisarai but the learned Additional District
and Sessions Judge-II, Lakhisarai after receiving the records
passed the order dated 16.10.2023 rejecting the application of
the petitioners for their discharge.
Submissions on behalf of the petitioners
9. Learned counsel for the petitioners has submitted
that the orders dated 13.09.2023 as well as the order dated
16.10.2023 (Annexure-P/8 series) passed by the learned
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
8/15
Additional District and Sessions Judge-II, Lakhisarai are bad in
law. One of the contentions is that the order dated 16.10.2023
has been passed in absence of the petitioners. It is also
submitted that the case was fixed for framing of charges on
15.01.2024 but the learned Additional District and Sessions
Judge-II, Lakhisarai framed the charges on 18.10.2023 itself and
directed the office to issue summons against all the prosecution
witnesses.
Submissions on behalf of the State
10. On behalf of the State, a counter affidavit has been
filed. Besides giving the chequered history of the case, learned
AAG-13 submits that the views expressed by the Hon’ble
Division Bench in Ashif’s case were not approved by the
Hon’ble Full Bench. The case was registered by the State police
and after investigation of the case, charge-sheet was filed. The
Law Department of the State of Bihar vide Letter No.147/J
dated 27.06.2014 approved the sanction for prosecution against
the petitioners under UAP Act. The sanction letter was
submitted by the S.D.P.O., Lakhisarai in the court of learned
District and Additional Sessions Judge and keeping in view the
materials available on the record, when the records were sent
back to the court of learned A.C.J.M., Lakhisarai on the request
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
9/15
made on behalf of the petitioners, learned A.C.J.M. took
cognizance of the offences whereafter the records were
committed to the court of Sessions and it was transferred to the
court of learned District and Additional Sessions Judge-II,
Lakhisarai where steps were taken to frame the charges.
11. Learned AAG-13 has pointed out to this Court the
reasons shown by the learned District and Additional Sessions
Judge-II, Lakhisarai in the impugned order dated 16.10.2023 for
rejecting the application of the petitioners for discharge. The
learned court below has relied upon a judgment of the Hon’ble
Supreme Court in the case of Bikramjit Singh Vs. State of
Punjab reported in (2020) 10 SCC 616. It is submitted that
since the offences punishable under the provisions of the UAP
Act carries sentence of more than 7 years, the Hon’ble Supreme
Court has clearly opined that it would be triable by the court of
Sessions. Keeping in view the settled legal position, learned
court below has not committed any error in passing of the
impugned order.
12. Learned AAG-13 has further pointed out that the
accused persons were not cooperating in progress of the case
and this fact may be found from the impugned order itself where
it is recorded that the last chance was given to the defence for
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
10/15
hearing on the point of discharge but they failed to appear
before the court. Only after giving a clear warning to the
defence that if they would fail to appear before the court for
their argument the matter would proceed on merit, the learned
court below has proceeded to consider the application and
passed the order which is impugned. In such circumstance, no
illegality or infirmity may be found in the impugned order.
Consideration
13. We have considered the rival submissions at the
bar and have gone through the materials placed before us. The
bone of contention of the parties would be required to be
considered keeping in view the opinion expressed by the
Hon’ble Full Bench in Cr.Appeal (FB) No.192 of 2015 decided
on 27.03.2015. The operative part of the judgment of the
Hon’ble Full Bench reads as under:-
“We, therefore, hold that
(A) the judgment in Aasif‟s case (supra), insofar
as it held that investigating agency of the State
Government can investigate and try offences in
accordance with the provisions of the N.I.A. Act,
in the cases where offences punishable under the
Unlawful Activities (Prevention) Act are alleged,
and that such cases must be tried by the Courts of
Sessions under Sub-section (3) of Section-22 of
the N.I.A. Act, cannot be said to have laid the
correct law;
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
11/15
(B) the cases even where offences punishable
under the provisions of U.A.P. Act are alleged
shall be tried by the courts as provided for under
the Cr.P.C. and not in accordance with the special
procedure, under the Act unless (i) the
investigation of such cases is entrusted by the
Central Government to the N.I.A. and (ii) the
N.I.A. transfers the same to the investigating
agency of State Government.
The appeals shall be treated as bail applications,
to be heard under Section-439 of Cr.P.C. and the
registry shall place the same before the learned
Single Judges after requiring the parties to alter
the provisions of law;
(C) all the cases in the State of Bihar, which are
being tried by the Courts of Sessions, on the
basis of the judgment of this Court in Aasif‟s
case (supra), shall stand transferred to the courts
that otherwise have jurisdiction to try them; and
(D) none of the steps taken in such cases that
were pending before the Court of Sessions shall
render the investigation or trial, invalid or
unlawful.”
14. In view of the settled legal position as above, we
find that in this case the State police had registered the FIR and
investigated the case. They had submitted the charge-sheet,
sanction orders were issued by the State Government whereafter
cognizance was taken for the second time on 24.11.2014 i.e.
after the judgment of the Hon’ble Division Bench in Aasif’s
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
12/15
case. This order taking cognizance is fully in consonance with
the opinion expressed by the Hon’ble Full Bench and no fault
may be found with the same. The petitioners have challenged
the order taking cognizance dated 24.11.2014 (Annexure-P/4) at
this stage only after the charges have been framed. We have
gone through the order taking cognizance. It is a well reasoned
order. We have also noticed that after the order, as contained in
Annexure-P/4, was passed, the petitioners filed an application
before the learned District and Additional Sessions Judge for
transfer of the records to the court of learned A.C.J.M.,
Lakhisarai. The application was allowed vide order dated
18.05.2015 (Annexure-P/6 series). Thereafter, vide order dated
05.08.2023, the learned A.C.J.M., Lakhisarai proceeded with the
matter and relying upon a judgment of the Hon’ble Supreme
Court in the case of Bikramjit Singh (supra), the learned
Judicial Magistrate-1st Class committed the records to the court
of Sessions. This order dated 05.08.2023 passed by the learned
Judicial Magistrate-1st Class has not been challenged by the
petitioners. In fact, after the records were committed the court of
Sessions, the petitioners filed an application under Section 227
of the Code of Criminal Procedure and in their application, they
raised an issue that the learned C.J.M. has not taken cognizance
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
13/15
under the provisions of the UAP Act against these petitioners
rather cognizance was taken only under Sections 420, 467, 468,
471 and 120B IPC on 22.05.2023. It was submitted that the
records have been transferred to the court of learned District and
Additional Sessions Judge without complying with the order of
the court.
15. To this Court, it appears from the order dated
16.10.2023 that the petitioners were not cooperating at the stage
of framing of charge. The learned trial court has rightly recorded
that at this stage marshaling of evidence is not required and
mere presence of sufficient material to constitute the offence
would be sufficient to frame the charges. It has been duly
mentioned that in the case of Bikramjit Singh (supra), the
Hon’ble Supreme Court has held that the case of UAP Act
especially the sections under which the cognizance has been
taken in the instant case would be triable by the court of
Sessions. Keeping in view this position emerging in law, the
learned court dismissed the application under Section 227
Cr.P.C. and the accused persons were directed to be physically
present before the court for framing of charge on the next date.
The case was fixed for 15.01.2024. However, it appears that on
18.10.2023 itself four accused persons filed their attendance and
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
14/15
two custodial accused were produced from jail with their
custody warrant. Both the parties were heard on the point of
framing of charge and thereafter finding sufficient materials on
the record, the learned court passed an order for framing of
charge against the accused persons. Charges were read over and
explained to them in Hindi in open court to which they pleaded
not guilty and claimed to be tried.
16. We are conscious of the one of the submission at
the bar that while dismissing the application of the petitioners
preferred under Section 227 Cr.P.C., the learned court had fixed
the case on 15.01.2024 for framing of charge but only after two
days i.e. on 18.10.2023, the charges were framed. We find that
there is an apparent error in putting the date by pen in the order
dated 16.10.2023 otherwise there was no reason that the four out
of six accused persons would file their attendance on
18.10.2023, further the production of other two accused on
production warrant from jail on the same day clearly show that
the case was fixed on 18.10.2023. It is evident that no prejudice
has been caused to the accused persons because of the framing
of charge on 18.10.2023 because it is not their contention that
what are recorded in the order dated 18.10.2023 are not correct.
17. In ultimate analysis, we are of the considered
Patna High Court CR. WJC No.539 of 2024(7) dt.11-03-2026
15/15
opinion that the impugned orders do not suffer from any
infirmity.
18. This writ application has no merit. It is dismissed
accordingly.
(Rajeev Ranjan Prasad, J)
( Soni Shrivastava, J)
arvind/-
U
Checking your session…