Jharkhand High Court
Shyam Bihari vs The State Of Jharkhand …… Opposite … on 9 March, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
[ 2026:JHHC:6274 ]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 18 of 2023
1.
Shyam Bihari, aged about 54 years, son of Mahavir
Prasad resident of village- Tilwariya, P.O. & P.S.-
Haweli Kharagpur, District- Munger, Bihar
2. Bhola Choudhary aged about 53 years, son of Arjun
Choudhary, resident of village- Basmatta, P.O. & P.S.-
Deoghar, District-Deoghar,
3. Abhay Shankar Jha aged about 52 years, son of Sitaram
Jha, resident of village- Saket Vihar, Near Oxford
School, Barmasia, P.O. & P.S.-Deoghar, District-
Deoghar,
4. Radhey Shyam Yadav aged about 52 years, son of Late
Sukhdeo Yadav, resident of village- Pokhriya, P.O. &
PS.- Haveli Kharagpur, District- Munger, Bihar,
5. Indradeo Yadav aged about 51 years, son of Bangali
Yadav, resident of village- Dhawa, P.O- Bhitiya, P.S.-
Fullidumar, District- Banka, Bihar,
6. Raj Kumar Yadav aged about 51 years, son of
Rameshwar Prasad Yadav, resident of village- Harpur,
P.O. & P.S. Tarapur, District-Munger, Bihar,
7. Lal Babu Choudhary aged about 52 years, son of Bimal
Choudhary, resident of village-Palajori, P.O. & P.S.-
Palajori, District- Deoghar
8. Mohan Choudhary aged about 55 years, son of
Baleshwar Choudhary, resident of village- New Colony,
Madhupur P.O. & P.S.-Madhupur, District- Deoghar,
9. Arun Kumar aged about 52 years, son of Janak Ray,
resident of village- Gopikandar, PO. & P.S.-
Gopikandar, District- Dumka,
10. Dilip Kumar aged about 51 years, son of Kasim Saw,
resident of village- Dilawarpur, P.O. & P.S.- Bihta,
District- Patna, Bihar
11. Kamlesh Kant Yadav aged about 52 years, son of Ram
Parikshan Yadav, resident of village- Kundahit, P.O. &
P.S.- Barmasiya, District-Jamtara …… Petitioners
Versus
The State of Jharkhand …… Opposite Party
For the Petitioners : Mrs. M. M. Pal, Sr. Adv.
Ms. Shipra Shalini, Adv.
Mr. Abhisehk Sriwastava, Adv.
For the State : Ms. Nehala Sharmin, Spl. PP
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
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2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 CrPC with the prayer
for quashing and setting aside the entire criminal proceeding
including the order dated 01.11.2022 passed in connection with
Deoghar (Town) P.S. case no. 94 of 2019 corresponding to G.R.
case no. 1112 of 2022 whereby and where under, learned Chief
Judicial Magistrate, Deoghar based on the charge sheet submitted
by the police in the case, has taken cognizance of the offences
punishable under Sections 409, 420, 467, 468, 471, 120B of the IPC
inter alia against the petitioners.
3. The allegation against the petitioners is that the petitioners along
with the co-accused of the case, some of whom are the officers of
Bharat Sanchar Nigam Limited (BSNL) and its predecessor-in-
interest, Department of Telecommunication, committed forgery
for the purpose of cheating and also used forged documents as
genuine and being public servant and agent, committed criminal
breach of trust, in respect of the property entrusted to them, by
falsely claiming to be the Temporary Status Mazdoors (TMS) of
the said BSNL and its said predecessor-in-interest being the
Department of Telecommunication and when the same was
detected and their so called service was kept in abeyance, the
petitioners challenged the said order by which their services were
kept in abeyance and which keeping in abeyance order was
passed by the competent officer; before the Central
Administrative Tribunal (CAT), Patna. One of such cases relates
to O.A. No. 51 / 132 / 2017, wherein it was contended by the
BSNL and the Department of Telecommunication that the
documents produced by the petitioners and some other co-
accused persons, were forged documents. It was observed by the
Central Administrative Tribunal that only if the BSNL authorities
initiate action against their senior guilty officers who have helped
to perpetrate the fraud, then such claim of BSNL would be
credible. The matter was enquired into by the concerned officers
of the BSNL and the DGM, Vigilance after due enquiry found
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eleven officers and fourteen TSM to be prima facie involved in the
acts of omission and commission of malafide and on the basis of
the same the written report was lodged with the Officer-In-
charge, Deoghar Town Police Station and basing upon the written
report of Officer-In-charge, Deoghar Town Police Station,
Deoghar (Town) P.S. case no. 94 of 2019 was registered. After
registration of the case police took up investigation of the case.
After completion of the investigation, the police found the
allegations made against the petitioner is to be true basing upon
the materials collected during the investigation of the case,
including the statement of the witnesses and submitted
chargesheet against the petitioners and the co-accused persons,
for having committed the offence punishable under Sections 409,
420, 467, 468, 471 and 120B of IPC. On the basis of the said charge
sheet submitted by the police, vide order dated 01.11.2022 in G.R.
case no. 1112 of 2022 arising out of Deoghar (Town) P.S. case no.
94 of 2019, learned Chief Judicial Magistrate, Deoghar took
cognizance of the said offences in respect of which charge sheet
was submitted, inter alia against the petitioners.
4. It is submitted by learned senior counsel for the petitioners
relying upon the order of the Hon’ble Supreme Court of India in
the case of Pradeep Kumar Kesarwani vs. The State of Uttar
Pradesh & Anr. passed in Cr. Appeal no. 3831 of 2025 dated
02.09.2025 that therein the Hon’ble Supreme Court of India has
reiterated the settled principle of law that summoning of any
person on the basis of a frivolous or vexatious complaint is
something very serious and this would tarnish the image of the
person against whom false, frivolous and vexatious allegations
are levelled. The duty of the court in cases, where an accused
seeks quashing of an FIR or proceedings on the ground that such
proceedings are manifestly frivolous or vexatious or instituted
with an ulterior motive for wreaking vengeance was discussed by
the Hon’ble Supreme Court of India relying upon paragraph- 34
of its judgement in the case of Mohammad Wajid vs. State of U.P.
3 Cr.M.P. No. 18 of 2023
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reported in 2023 SCC OnLine SC 951. It is next submitted by the
learned senior counsel that this case is also a manifestly frivolous,
vexatious and has been instituted with ulterior motive only
because the BSNL lost the concerned O.A. before the CAT.
5. Learned senior counsel for the petitioners next relies upon the
judgment of a Division Bench of this Court and submits that
though BSNL challenged the orders passed by the Central
Administrative Tribunal in O.A. No. 51/32/2017 but the said writ
petition has been dismissed vide common judgment dated
05.02.2026 in WP (S) no. 497 of 2026 with WP (S) no. 6953 of 2025
and the order dated 16.02.2026 in WP (S) 5766 of 2025.
6. Learned senior counsel for the petitioners next relies upon the
judgment of a co-ordinate Bench of this Court in the case of Shoab
Hasan Chand vs. State of Jharkhand & Ors. reported in 2025 (4)
JBCJ 329 (HC) wherein the co-ordinate Bench relied upon the
judgment of the Hon’ble Supreme Court of India in the case of
Inder Mohan Goswami and Another vs. State of Uttranchal
and Others reported in (2007) 12 SCC 1, wherein the Hon’ble
supreme Court of India discussed the ingredients to constitute the
offence punishable under Sections 420 of IPC as also Sections 467,
468, 471 of IPC and submits that even if the entire allegations
made against the petitioners are considered to be true in their
entirety, still none of the offences in respect of which , cognizance
has been taken by learned Chief Judicial Magistrate, Deoghar is
in fact made out.
7. Learned senior counsel for the petitioners next relies upon the
judgment of the Hon’ble Supreme Court of India in the case of
Uma Shankar Gopalika vs. State of Bihar & Another reported in
(2005) 10 SCC 336 paragraph-6 of which reads as under:-
“Xxxx xxxx xxxx It is well settled that every breach of contract
would not give rise to an offence of cheating and only in those cases
breach of contract would amount to cheating where there was any
deception played at the very inception. If the intention to cheat has
developed later on, the same cannot amount to cheating. In the
present case it has nowhere been stated that at the very inception there
was any intention on behalf of the accused persons to cheat which is a
condition precedent for an offence under Section 420 IPC.”
(Emphasis supplied)
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and submits that therein the Hon’ble Supreme Court of India
reiterated the settled principle of law that in order to constitute
the offence of cheating, the accused must have played deception
since the very inception and if the intention to play the deception
develops later on, the same cannot amount to cheating, hence, it
is submitted that the prayer as made in this criminal
miscellaneous petition be allowed.
8. Learned Spl. PP on the other hand, vehemently oppose the prayer
of the petitioners and submit that there is direct and specific
allegation against the petitioners of having committed the forgery
for the purpose of cheating and having used the forged document
as genuine to raise a false claim of employment under the BSNL
and its predecessor-in-interest being the Department of
Telecommunications and in criminal conspiracy with the co-
accused persons, they have also committed criminal breach of
trust, in criminal conspiracy with the public servant entrusted
with the property, in capacity of the public servant and they have
also committed the offence of cheating. It is next submitted that
the offences as alleged were found to be true against the
petitioners during the investigation of the case and the police after
completion of the investigation, submitted chargesheet against the
petitioners basing upon which, the cognizance of the offence has
been taken by learned Chief Judicial Magistrate, Deoghar.
9. It is next submitted by learned Spl. PP that it is a settled principle
of law that the Magistrate cannot add or subtract any section of
the offence mentioned in the charge sheet while taking cognizance
of the offence and same will arise only when the court considers,
framing of charge under relevant provisions of law. It is next
submitted that as the petitioners are not appearing before the trial
court even though summons have been issued against them and
they are also very much aware about the same, hence, learned
trial court could not consider the framing of the charge; as yet. It
5 Cr.M.P. No. 18 of 2023
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is next submitted that there is no averment made in this criminal
miscellaneous petition regarding any misconduct on the part of
the police during the investigation of the case, so there is no
justifiable reason for quashing the entire criminal proceeding,
only on the sole ground that the allegations against the petitioners
are not true. It is further submitted that no doubt, principle of law
as discussed by the Hon’ble Supreme Court of India in the case of
Pradeep Kumar Kesarwani vs. The State of Uttar Pradesh &
Anr., (supra), are the subtle principles of law but the ratio of the
said the judgment is not applicable to the facts of this case, as
unlike that case in this case, there is no material to support the
contention of the petitioners that the FIR is manifestly frivolous
one or vexatious and instituted with ulterior motive; because the
undisputed fact remains that police after investigation of the case,
has already found the allegations made against each of the
petitioners to be true; on the basis of the materials collected
during the investigation of the case, which has been discussed in
detail in the case diary and also the gist of which has been
mentioned in the charge sheet submitted by the police in the court
concerned. It is further submitted that cognizance of the offences
has already been taken by the concerned magistrate, hence, it is
submitted that this Criminal Miscellaneous Petition being without
any merit, be dismissed.
10. Having heard the submissions made at the Bar and after going
through materials available in the record, it is pertinent to
mention here that it is a settled principle of law as has been held
by the Hon’ble Supreme Court of India in the case of State of
Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3
SCC 659, para 15 of which reads as under :-
“15. The question, therefore, emerges as to whether the
complainant/informant/prosecution would be precluded from seeking a
remedy if the investigating authorities have failed in their duty by not
including all the sections of IPC on which offence can be held to have been
made out in spite of the facts disclosed in the FIR. The answer obviously has
to be in the negative as the prosecution cannot be allowed to suffer prejudice
by ignoring exclusion of the sections which constitute the offence if the
investigating authorities for any reason whatsoever have failed to include all
the offences into the charge-sheet based on the FIR on which investigation6 Cr.M.P. No. 18 of 2023
[ 2026:JHHC:6274 ]had been conducted. But then a further question arises as to whether this
lacunae can be allowed to be filled in by the Magistrate before whom the
matter comes up for taking cognizance after submission of the charge-sheet
and as already stated, the Magistrate in a case which is based on a police
report cannot add or subtract sections at the time of taking cognizance as
the same would be permissible by the trial court only at the time of framing
of charge under Sections 216, 218 or under Section 228 CrPC as the case
may be which means that after submission of the charge-sheet it will be open
for the prosecution to contend before the appropriate trial court at the stage
of framing of charge to establish that on the given state of facts the
appropriate sections which according to the prosecution should be framed
can be allowed to be framed. Simultaneously, the accused also has the liberty
at this stage to submit whether the charge under a particular provision
should be framed or not and this is the appropriate forum in a case based on
police report to determine whether the charge can be framed and a particular
section can be added or removed depending upon the material collected
during investigation as also the facts disclosed in the FIR and the
chargesheet.” (Emphasis supplied)wherein the Hon’ble Supreme Court of India has categorically
laid down the law that if the investigating authorities for any
reason whatsoever, have left all the offences to be included in the
charge sheet, on the basis of the FIR, basing upon which, the
investigation has been concluded, the learned Magistrate before
whom the matter comes up for taking cognizance after
submission of the charge sheet, cannot fill up the lacunae and the
Magistrate in a case, which is based on police report, cannot add
or subtract any section of any offence, at the time of taking
cognizance, as the same would be permissible to the trial court
only at the time of framing of charge under Section 216, 218 or
under Section 228 of CrPC; as the case may be.
11. The undisputed fact remains that after registration of the FIR, the
case was investigated by the I.O. of the case and I.O. after
completion of the investigation of the case, found sufficient
materials which has been described in detail in the case diary that
the allegations against the petitioners are true, in respect of the
offences for which, charge sheet was submitted. Learned
magistrate has taken cognizance of the offence based on the
charge sheet submitted by the police, after investigation of the
case and there is no allegation anywhere in the Criminal
Miscellaneous Petition regarding any misconduct on the part of
the I.O. in conducting investigation of the case. The only
contention of the petitioner is that the allegations against the
7 Cr.M.P. No. 18 of 2023
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petitioners are false and one or the other offence is not made out
against the petitioners.
12. It is a settled principle of law that the defence of the petitioner and
the veracity of the evidence put forth by the accused, cannot be
considered in exercise of the power under Section 482 Cr.P.C. by
the High Court, as that would be job of the trial court, as has been
held by the Hon’ble Supreme Court of India, in the case of State
of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. reported
in 2004 2 Supreme 501.
13. It is also a settled principle of law that the High Court in exercise
of its power under Section 482 of CrPC, cannot conduct a mini
trial, as has been reiterated by the Hon’ble Supreme Court of
India in the case of State of Uttar Pradesh & Anr. vs. Akhil
Sharda & Ors. reported in 2022 LiveLaw SC 594, the relevant
portion of which reads as under :-
” Having gone through the impugned judgment and order passed by the High
court has set aside the criminal proceedings in exercise of powers under Section
482 CrPC, it appears that the High Court has virtually conducted a mini trial,
which as such is not permissible at this stage and while deciding the application
under Section 482CrPC. As observed and held by this court in a catena of
decisions, no mini trial can be conducted by the High Court in exercise of power
under Section 482CrPC, jurisdiction and at the stage of deciding the application
under Section 482CrPC, the High Court cannot get into appreciation of evidence
of the particular case being considering. (Emphasis supplied)
14. In view of the settled principle of law that at the time of taking
cognizance, learned Magistrate cannot add or subtract any section
of the offence based on the report submitted by the police,
investigating a case initiated on the basis of the FIR. So even
assuming for the sake of argument that one or the other of the
offences is not made out, but as at this stage, the Magistrate
cannot add or subtract that offence; certainly the Magistrate can
do the same while considering the framing of charge, which is yet
to take place, because of the non-cooperation of the petitioners
who though are very much aware about the requirement of their
appearance before the learned Magistrate, have still succeeded in
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avoiding their appearance before learned Magistrate concerned
till date.
15. Under such circumstances, this Court is of the considered view
that this is not a fit case, where the prayer made in this Criminal
Miscellaneous Petition by the petitioners is to be to acceded in
exercise of its power under section 482 of CrPC.
16. Accordingly, this Criminal Miscellaneous Petition being without
any merit is dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 9th of March, 2026
Smita /AFR
Uploaded on …………
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