Patna High Court
Rakesh Kumar @ Rakesh Kumar Tewariwal vs The State Of Bihar on 28 July, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5385 of 2019
Arising Out of PS. Case No.-202 Year-1990 Thana- MADHEPUR District- Madhubani
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Rakesh Kumar @ Rakesh Kumar Tewariwal, son of Late Shiv Shankar Prasad
@ Shiv Shankar Prasad Tibrewal, Resident of 806, Pushpanjali Venkatesh
Apartment, P.S.- Kotwali Town and District- Patna.
... ... Petitioner
Versus
The State of Bihar
... ... Opposite Party
======================================================
Appearance :
For the Petitioner/s : Mr. Ramakant Sharma, Senior Advocate
Mr. Alok Kumar Agrawal, Advocate
Mr. Sukesh Ranjan, Advocate
Mr. Sudhanshu Kumar, Advocate
For the Opposite Party/s : Mr. Dilip Kumar No.1, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 28-07-2026
Heard learned senior counsel appearing for the
petitioner and learned APP for the State.
2. The present application has been filed by the
petitioner for quashing of the order dated 27.07.2017 as passed
by learned Sessions Judge, Madhubani in Cr. Revision No. 862
of 2016/930 of 2016 as also the order dated 23.09.2016 passed
by the learned A.C.J.M., Jhanjharpur in T.R. No.1249 of 2016,
G.R. No.816 of 1990 through which discharge petition u/s 239
of CrPC as preferred by petitioner was rejected.
3. The case of prosecution is based on written report
of Sub Divisional Officer, Jhanjharpur on the basis of report
submitted by the Executive Magistrate, Jhanjharpur dated
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10.10.1990
alleging inter alia that as per oral instruction of the
S.D.O. Jhanjharpur, the Executive Officer contacted the driver
of Taxi No.BPP-8858, who stated that on 08.10.1990 at about 9
O’clock he loaded some goods in cartoon from the Block Office
at Lakhnaur and took the same to the Gaddi situated at
Balbhadrapur, Jhanjharpur R.S. of Shiv Shankar Marwari. It was
further alleged that it was informed from the office of Block
Development Officer that Executive Officer asked for the Stock
Register of Pesticides, which was received and distributed. On
this, the stock register of the Fertilizer was shown but, the stock
register of Pesticides was not shown. Further, upon physical
verification of the stock, the said Executive Officer asked for the
Key of the Store, but it was told that the same is lying with the
Nazir. A letter bearing No. 803 dated 27.6.1990 of the District
Agriculture Officer was also shown to the Executive Officer,
from where, it revealed that there was sufficient quantity of
Pesticides to be supplied in different Blocks of the district.
Thereafter, the Executive Magistrate along with the Officer In-
charge, Jhanjharpur R.S. and Block Agriculture Officer make a
physical verification of the stock of Pesticides in which stock of
6 Box of chemical known as Clore of 1 Ltr. each was found. It
was further alleged that during enquiry from the Nazir cum
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Store Keeper, Sri Gauri Shankar Mahto, and Jan Sewak, Hari
Krishna Jha, it was found that some stock of pesticides were
misappropriated and therefore, on the basis of the statement of
the Driver of the said Taxi, Sushil Kumar Jha, the Guard, Sone
Lal Choudhary, Nazir cum Stock Keeper, Gauri Shankar Mahto
and the Block Agriculture Officer, Yugal Kishore Jha, it appears
that the Pesticides, which has been purchased for distribution for
the farmers has been sold to Shiv Shankar Prasad @ Shiv
Shankar Marwari. It was further revealed that one of the son of
the said Shiv Shankar Prasad was also involved in the said
offence.
4. On the basis of aforesaid written report, the present
F.I.R. being Madhepur P.S. Case No. 202 of 1990 was registered
under Sections 409, 379 and 120-B of the Indian Penal Code (in
short ‘IPC‘).
5. After investigation of the case, the police
submitted charge-sheet against five accused persons including
the petitioner for the offences punishable under Sections 409,
379, 411 and 120-B of the I.P.C. vide charge-sheet No.22 of
1992 dated 31.03.1992.
6. On the basis of materials collected during
investigation, the learned Jurisdictional Magistrate took
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cognizance of the offences punishable under Section 409, 379,
411 and 120-B of the IPC vide order dated 05.04.1994, where
during the course of proceeding, the petitioner has preferred a
petition under Section 239 of the Code of Criminal Procedure
(in short ‘CrPC‘) for his discharge, as no offence was made out
against the petitioner on the basis of materials available on
record, which was rejected vide its’ order dated 23.09.2016. It
was challenged before the court of Sessions, Madhubani
through Cr. Revision No. 862 of 2016/930 of 2016, which was
also rejected through impugned order dated 27.07.2017.
7. Hence, the petition.
8. Mr. Ramakant Sharma, learned senior counsel for
the petitioner submitted that though law provisioned that no
second revision is maintainable in view of Section 397(3) of the
CrPC but, the filing of quashing petition under Section 482 of
the CrPC against revision is not absolutely barred. In support of
his submission, Mr. Sharma has relied upon legal report of
Hon’ble Supreme Court as available through Kailash Verma
vs. Punjab State Civil Supplies Corporation and another
[(2005) 2 SCC 571]. It is pointed out that the impugned revision
order is completely perverse for the reason that the same was
passed in mechanical manner, without assigning any legal
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reasons, simply mentioning the various paragraphs like, 3, 13,
24, 34, 35, 37, 45, 59, 65, 66, 99, 110, 113, 125 and 135 of the
case diary.
9. It is further submitted by Mr. Sharma that out of all
such paragraphs, even no whispering is available against
petitioner qua his involvement with present crime in question,
whereas in paragraph 99 of the case diary, one witness simply
stated while recording his statement under Section 161 of the
CrPC during investigation that he saw this petitioner standing
near to the gate of the house in issue, where in one room the
insecticides was stored by labours and after two days, he came
to know that this petitioner was also involved in present black-
marketing of insecticides. It is submitted that the petitioner is
not a PDS dealer, rather a private person.
10. It is also submitted by Mr. Sharma that allegation
of theft is not available against this petitioner. There is nothing
regarding criminal conspiracy and even the allegation of breach
of trust is also not prima facie make out, out of available
materials, as insecticides in issue was never entrusted to
petitioner. It is submitted that in view of aforesaid, no criminal
case is made out against the petitioner and, therefore, the
impugned order is fit to be set aside/quashed. It is also
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submitted that the FIR was lodged in the year 1990 and still this
matter is pending before the learned trial court, where not even a
single prosecution witness was examined and only the basis of
statement of the single witness, as discussed aforesaid, this
petitioner is facing the trauma of criminal prosecution since last
36 years and on this score alone, the impugned order is fit to
quashed.
11. Arguing further, Mr. Sharma relied upon the legal
report of Hon’ble Supreme Court as available through State of
Haryana vs. Bhajan Lal [1992 Supp. (1) SCC 335].
12. Learned APP for the State has opposed the
quashing application.
13. It would be apposite to reproduce paragraph
no.102 of the Bhajan Lal‘s case (supra), which is 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
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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
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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.
14. In view of aforesaid factual aspects and by taking
note of above settled legal position, as the allegation prima
facie not make out any case against the petitioner qua Sections
409, 379 of the IPC as in terms of case of prosecution, the
allegation of theft or entrustment of insecticides is not available
against this petitioner, accordingly, this Court is convinced
enough that the impugned order of revision was passed without
assigning any reasons, ignoring the legal aspects involved
thereof.
15. Considering the aforesaid and by taking note of
guiding principle nos. (1) and (3) of the Bhajan Lal‘s case
(supra), coupled with the fact, as the matter is pending since last
36 years without any examination of prosecution witnesses,
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accordingly, the impugned order dated 27.07.2017 as passed by
learned Sessions Judge, Madhubani in Cr. Revision No. 862 of
2016/930 of 2016 is hereby quashed/set aside with all
consequential proceedings, if any. To secure the ends of justice,
the cognizance order dated 05.04.1994 and also the impugned
order dated 23.09.2016 passed by the learned A.C.J.M.,
Jhanjharpur in T.R. No.1249 of 2016, G.R. No.816 of 1990
where the petition under Section 239 of the CrPC was rejected
is hereby also quashed and set aside.
16. The application stands allowed.
17. Let a copy of this order be communicated to the
learned trial court forthwith.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 29-07-2026 Transmission Date 29-07-2026
