Isabella Mariam

The High Court of Patna Single Bench of Justice Chandra Shekhar Jha has quashed the cognizance order passed by the Chief Judicial Magistrate, Araria, against the petitioner, currently serving as Minister of State for Home Affairs, Government of India. The order had summoned the petitioner under Sections 153 of the Indian Penal Code and 125 of the Representation of People Act, 1951. The High Court held that the complaint and cognizance order failed to establish any prima facie case to warrant a criminal trial against the petitioner.

The Court directed that the entire cognizance order dated 13.04.2022, passed in Narpatganj P.S. Case No. 129 of 2018, G.R. No. 653 of 2018, be quashed along with all consequential proceedings. Stating the lack of material to sustain charges under either provision, the Court observed that the speech in question did not promote enmity based on religion or community. Furthermore, it noted that the allegations were not supported by specific instances of illegality or intent required under Section 153 of the IPC. Accordingly, the application under Section 482 Cr.P.C. was allowed.

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The case originated from a public speech delivered by the petitioner on 09.03.2018 in the premises of a high school in Narpatganj, District Araria. At the time, the petitioner held the position of State President of the Bhartiya Janata Party, Bihar. According to the written information provided by the Circle Officer of Narpatganj, the petitioner allegedly violated the Model Code of Conduct by giving a provocative speech targeting a candidate from the Rashtriya Janata Dal (RJD), namely Md. Sarfaraz Alam.

The Circle Officer reported that the petitioner stated, "if Md. Sarfaraz Alam wins the election, Araria will become the centre of ISIS." Based on this, Narpatganj P.S. Case No. 129 of 2018 was registered under Sections 153A of the Indian Penal Code and 125 of the Representation of People Act. The police later submitted a charge sheet dated 31.10.2021 (Charge Sheet No. 574/2021), and the Chief Judicial Magistrate took cognizance under Sections 153 of IPC and 125 of the RP Act on 13.04.2022.

During the course of the hearing, the petitioner's counsel, Mr. Naresh Dikshit, contended that the petitioner was falsely implicated due to political rivalry. It was submitted that no specific religious or communal reference was made in the speech, and ISIS, being a militant organization, is not associated with any particular religion. Therefore, the act of mentioning ISIS in a political context does not attract the provisions of Section 153 IPC or Section 125 RP Act.

Mr. Dikshit also argued that the speech lacked the essential elements to constitute an offence under either provision. He stated that there was no use of language intended to incite violence, nor was there any promotion of hatred or enmity between classes of citizens based on religion, caste, or language. Additionally, it was pointed out that the complaint was not filed by the aggrieved candidate but by the Circle Officer.

Further, Mr. Dikshit referred to legal precedents including the Supreme Court judgment in State of Haryana & Ors. vs. Bhajan Lal and Ors. [(1992) Supp (1) SCC 335], and Patna High Court judgement in Navjot Singh Sidhu vs. State of Bihar [2023 SCC OnLine Pat 6186]. He stated that the speech did not amount to a cognizable offence and that the cognizance order was passed mechanically without proper judicial application of mind.

On the other hand, despite several opportunities, the State failed to file a counter affidavit. Consequently, the matter was adjudicated based on the materials available on record as per orders dated 25.07.2023 and 09.05.2025.

The written information from the Circle Officer and the cognizance order were reproduced in the judgment. The cognizance order stated that sufficient materials were found to infer a prima facie case under Sections 153 IPC and 125 RP Act against the petitioner, and the matter was transferred to the Special Court of M.P./M.L.A. (A.C.J.M.-1), Araria.

The Court observed, "the written information... nowhere discloses that any hatred speech was given in the name of religion, caste etc." It noted that "ISIS no doubt is a militant outfit having no connection with any religion. There is no harm to any religious sentiment to any particular community."

The Court examined the definitions of "malignantly" and "wantonly" under Section 153 IPC, citing legal precedents and dictionary meanings. It stated, "The word 'Malignantly' implies a sort of general malice... 'Malice' is not, as in ordinary speech, implies only an expression of hatred or ill-will to an individual, rather it means an unlawful act done intentionally without just cause or excuse."

In relation to "wantonly," the Court recorded, "Wantonly... implies reckless, heedless, malicious, characterized by extreme recklessness or foolhardiness... recklessly disregardful of the rights or safety of others." It further remarked, "From the aforesaid discussed proposition of law, it can be straightway gathered that to make offence under this section, there must be an illegal act."

On analysing the facts, the Court noted, "the written information... appears that speech of petitioner has not been made to promote or attempting to promote the ground of religion, caste or community or language feeling of enmity or hatred between the parties." The Court held that the statement about Araria potentially becoming an ISIS base "cannot be said that the speech was Malignant in nature or was wantonly in terms of its dictionary meanings."

Citing precedent from Pepsi Food Ltd. vs. Special Judicial Magistrate [(1998) 5 SCC 749], the Court reiterated, "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." It recorded that, "the impugned cognizance order does not appear to speak as to suggest how a prima-facie case is made out under sections 153 of the I.P.C. and 125 of the R.P. Act against the petitioner."

Referring to the Bhajan Lal case, the Court invoked the principle that proceedings may be quashed 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."

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The Court concluded its judgment by issuing clear directives. It held: "Taking note of the aforesaid factual and legal discussion and on the basis of materials available on record, it can be safely said that the written information, which is the basis of Narpatganj P.S. Case No. 129/2018, prima-facie does not constitute any offence."

It further directed: "The impugned order dated 13.04.2022 as passed by learned Chief Judicial Magistrate, Araria in connection with Narpatganj P.S. Case No. 129 of 2018, G.R. No. 653 of 2018, qua petitioner is hereby quashed/set-aside with all its consequential proceedings, if any."

"This application stands allowed."

Advocates Representing the Parties:

For the Petitioners: Mr. Naresh Dikshit, Advocate; Mr. Brij Bihari Tiwary, Advocate

For the Respondents: Mr. Jharkhandi Upadhyay, A.P.P.

Case Title: Nityanand Roy @ Nityanand Rai vs. State of Bihar

Case Number: Criminal Miscellaneous No. 17279 of 2023

Bench: Justice Chandra Shekhar Jha

[Read/Download order]