MUKESH KUMAR SINGH @ DR. MUKESH KUMAR SINGH vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.38909 of 2023
Arising Out of PS. Case No.-186 Year-2023 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
MUKESH KUMAR SINGH @ DR. MUKESH KUMAR SINGH Son of
Dolan Singh Resident of village - Bindwal, P.S. - Goreyakothi, Distt. - Siwan,
At present Medical Officer at Primary Health Centre, Sadar Block Gopalganj,
Distt. - Gopalganj
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 24430 of 2023
Arising Out of PS. Case No.-186 Year-2023 Thana- GOPALGANJ TOWN District-
Gopalganj
======================================================
DR. HARENDER PRASAD SINGH @ HARENDER PRASAD SINGH S/O
LATE KAPILDEO SINGH R/O Village- Hansrajpur, P.S- Ekma, Distt.-
Saran.
... ... Petitioner/s
Versus
The State of Bihar
... ... Opposite Party/s
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 38909 of 2023)
For the Petitioner/s : Mr. Umesh Kumar Singh, Adv.
For the Opposite Party/s : Mr. Dinesh Singh, APP
(In CRIMINAL MISCELLANEOUS No. 24430 of 2023)
For the Petitioner/s : Mr.Pritish Ranjan, Adv.
For the Opposite Party/s : Mr.Madhuri Lata, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 18-06-2026
Heard learned counsel for the petitioner and learned
counsel for the State.
2. The petition is filed under Section 482 of the Code of

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Criminal Procedure, 1973. The prayer is for quashing of
Gopalganj Town Police Station Case No. 186 of 2023, P.T.N.
No. 864 of 2023, dated 09.03.2023, registered under Sections
420, 409 and 120-B of the Indian Penal Code, pending in the
Court of the learned Chief Judicial Magistrate, Gopalganj.
3. The petitioner is a Medical Officer in government
service. He was posted at Primary Health Centre, Sadar Block,
Gopalganj on 17.11.2020. Subsequently, vide memo no. 930
dated 16.04.2021 issued by the Civil Surgeon cum Chief
Medical Officer, Sadar Hospital, Gopalganj, he was nominated
as Drawing and Dispersing Officer at the said Centre and
assumed charge on 20.04.2021.
4. The FIR was lodged at the instance of one Ashok
Kumar, who was functioning at the time of lodging as In-charge
Medical Officer, PHC, Sadar Block, Gopalganj. The substance
of the allegation was that one Manish Julius, a peon posted at
Primary Sub Health Centre, Manikpur, which is a sub-centre
under PHC, Sadar Block, had been drawing salary from
November 2018 continuously by fabricating attendance and
absentee particulars. This was said to have been done in
conspiracy with four persons: Smt. Gyanmala Kumari, former
ANM; Sri Rakesh Kumar Srivastava, former clerk; Dr. Harendra

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Prasad Singh, former In-charge Medical Officer; and the
petitioner herein, also a former In-charge Medical Officer. The
stated basis was a communication of the Civil Surgeon cum
CMO, Gopalganj bearing Gyapank No. 600 dated 28.02.2023.
5. The FIR carries within it a plain and fundamental
contradiction. The fraudulent salary withdrawal is alleged to
have commenced in November 2018. The petitioner joined
PHC, Sadar Block in November 2020. He became Drawing and
Dispersing Officer only from April 2021. For the two and a half
years during which the alleged fraud is said to have originated
and run, the petitioner had no connection whatsoever with this
Centre. The FIR does not attempt to explain how a person
absent from the scene at the inception of the alleged fraud could
have been a conspirator in setting it in motion.
6. The process by which salary came to be drawn for
Manish Julius is a matter of record and deserves to be set out
carefully. The absentee particulars of Manish Julius were being
prepared and submitted by the ANM posted at PSHC, Manikpur.
Those particulars were then forwarded with the countersignature
of the Mukhiya of the concerned Gram Panchayat. They were
thereafter placed before the head clerk at PHC, Sadar Block,
who prepared the salary bill. The bill then went to the Drawing

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and Dispersing Officer for signature. During the petitioner's
tenure, that officer was the petitioner. He signed bills placed
before him through this institutional channel, a channel that had
been operating since 2018, well before he had joined. There is
no allegation in the FIR, nor does any document annexed to the
petition suggest, that the petitioner ever fabricated an attendance
record, that he had any personal knowledge of whether Manish
Julius was physically present at PSHC, Manikpur or not, or that
he played any role in originating or designing this method of
salary disbursement.
7. One thing in the FIR is worth noting separately.
Manish Julius, the very person who is said to have drawn salary
without performing duty, has not been made an accused. The
informant has arrayed those who processed the payment through
prescribed official channels while leaving out the man who
received the money. This is not a minor omission. It goes to the
root of whether the FIR discloses any genuine application of
mind to the facts.
8. The same facts had been the subject of departmental
inquiry before the FIR was filed. The Civil Surgeon cum CMO,
Sadar Hospital, Gopalganj issued a show cause notice to the
petitioner vide memo no. 1441/Gopalganj dated 07.06.2022.

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The petitioner replied in detail. He pointed out that Manish
Julius had been posted at PSHC, Manikpur since 2018 by the
then In-charge Medical Officer; that attendance was forwarded
through the ANM and the Mukhiya as per established
institutional practice prevailing since 2018; and that the salary
bill was prepared by the establishment clerk and merely
countersigned by him in his capacity as Drawing and Dispersing
Officer. The inquiry report together with the petitioner's reply
was forwarded by the Civil Surgeon to the Regional Additional
Director, Health Services, Saran Division, Chapra vide letter no.
1548 dated 17.06.2022. The Regional Additional Director
examined everything and communicated his finding vide letter
no. 113 dated 29.06.2022. He found that the entire responsibility
for preparing and submitting attendance particulars rested with
the ANM and the Mukhiya of the sub-centre; that the Drawing
and Dispersing Officer's function was no more than to sign the
bill that came to him from the establishment clerk on the basis
of those records; and that the petitioner, along with Dr. Harendra
Prasad Singh, was not guilty and was out of charge. Disciplinary
action was directed against the ANM and the clerk alone, those
who had actually controlled the submission of attendance. The
petitioner was formally exonerated on merits.

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9. The FIR came to be registered on 09.03.2023, roughly
nine months after the Regional Additional Director had
examined the same facts and returned a positive finding of no
guilt against the petitioner. The Civil Surgeon who forwarded
the request for registration of the FIR was therefore seeking
criminal prosecution of a person whom his own immediate
departmental superior had found not liable on the very same set
of facts.
10. The law governing the exercise of jurisdiction under
Section 482 of the Code was exhaustively considered by the
Supreme Court in State of Haryana v. Bhajan Lal , 1992 Supp
(1) SCC 335. In paragraph 102, the Court enumerated seven
categories of cases where the inherent power may be exercised
by way of illustration. The first and seventh categories are
directly in point.
Category (1) provides:
"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."
Category (7) provides:

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"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."
11. The ingredients required to make out an offence
under Section 409 IPC are not satisfied even if the FIR is read at
its best. In N. Raghavender v. State of Andhra Pradesh, CBI ,
(2021) 15 SCC 108, the Supreme Court laid down the essential
requirements in paragraphs 41 to 44:
"41. Section 409 IPC pertains to criminal breach
of trust by a public servant or a banker, in respect
of the property entrusted to him. The onus is on the
prosecution to prove that the accused, a public
servant or a banker was entrusted with the
property which he is duly bound to account for and
that he has committed criminal breach of trust."
"42. The entrustment of public property and
dishonest misappropriation or use thereof in the
manner illustrated under Section 405 are a sine
qua non for making an offence punishable under

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Section 409 IPC."
"43. The crucial word used in Section 405 IPC is
'dishonestly' and therefore, it presupposes the
existence of mens rea. In other words, mere
retention of property entrusted to a person without
any misappropriation cannot fall within the ambit
of criminal breach of trust. Unless there is some
actual use by the accused in violation of law or
contract, coupled with dishonest intention, there is
no criminal breach of trust."
"44. No sooner are the two fundamental
ingredients of 'criminal breach of trust' within the
meaning of Section 405 IPC proved, and if such
criminal breach is caused by a public servant or a
banker, merchant or agent, the said offence of
criminal breach of trust is punishable under
Section 409 IPC, for which it is essential to prove
that: (i) The accused must be a public servant or a
banker, merchant or agent; (ii) He/She must have
been entrusted, in such capacity, with property;
and (iii) He/She must have committed breach of
trust in respect of such property."

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The petitioner signed a salary bill. The money went to Manish
Julius by RTGS. There is no allegation that the petitioner
received anything or diverted anything to himself. What is
alleged, at its highest, is that he signed a bill prepared on the
basis of attendance records fabricated, not by him, but by those
below him in the official chain. Mens rea, which is the
indispensable condition for both Section 405 and Section 409
IPC, finds no support in the FIR as against the petitioner.
12. The question of what follows when a person has been
exonerated on merits in departmental proceedings and a
criminal prosecution on identical facts is sought to be continued,
was directly addressed by the Supreme Court in Ashoo
Surendranath Tewari v. Deputy Superintendent of Police,
EOW, CBI , (2020) 9 SCC 636. The Court in that case, relying
upon Radheshyam Kejriwal v. State of West Bengal , (2011) 3
SCC 581, culled out the governing principles in paragraph 38.
Sub-clause (vii) of that paragraph reads:
"(vii) In case of exoneration, however, on merits
where the allegation is found to be not sustainable
at all and the person held innocent, criminal
prosecution on the same set of facts and
circumstances cannot be allowed to continue, the

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underlying principle being the higher standard of
proof in criminal cases."
Paragraph 39 then recorded:
"In our opinion, therefore, the yardstick would be
to judge as to whether the allegation in the
adjudication proceedings as well as the proceeding
for prosecution is identical and the exoneration of
the person concerned in the adjudication
proceedings is on merits. In case it is found on
merit that there is no contravention of the
provisions of the Act in the adjudication
proceedings, the trial of the person concerned shall
be an abuse of the process of the court."
13. It is not in dispute that criminal proceedings and
departmental proceedings are independent of each other and
ordinarily run parallel. The ratio in Ashoo Surendranath Tewari
does not disturb that general position. What it says, and says
plainly, is that where the exoneration in departmental
proceedings is on merits and the allegation is found to be not
sustainable at all, continuing criminal prosecution on the same
facts becomes an abuse of process. The present case satisfies

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that yardstick fully. The Regional Additional Director examined
the precise question of whether the petitioner, as Drawing and
Dispersing Officer, had any role in the fabrication of attendance
records of Manish Julius. He found that the petitioner had none.
That was a finding on the merits of the identical allegation now
sought to be prosecuted criminally. The standard of proof in a
departmental inquiry being lower than in a criminal court, if the
allegation could not survive even that lower standard, it is
difficult to conceive what a criminal trial would yield.
14. The allegation of criminal conspiracy under Section
120-B IPC requires a meeting of minds for a shared unlawful
purpose. There is not a scintilla of material in the FIR to show
any meeting of minds between the petitioner and any other
accused. The petitioner joined two years after the alleged
conspiracy is said to have begun. He operated within a system
already in place. His name appears in the FIR for no reason
other than that he was the signatory officer on salary bills during
his tenure. That is not conspiracy. It is the discharge of an
official function, based on documents supplied through a
channel not of his creation.
15. There is one further circumstance that this Court
cannot pass over. This very FIR is set against the background of

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prior departmental proceedings in which the petitioner had been
exonerated. The informant was a newly posted In-charge
Medical Officer. The FIR was lodged not on any fresh discovery
of fact but on the basis of the same communication from the
Civil Surgeon that had itself led to the earlier inquiry and the
petitioner's exoneration. The FIR adds nothing new. What it
does is attempt to relitigate, through the criminal process, a
question that the competent departmental authority had already
answered in the petitioner's favour. The purpose and effect of
doing so, nine months after exoneration, is harassment.
Category (7) of Bhajan Lal is squarely attracted.
16. Taking the allegations in the FIR at face value, as this
Court is bound to do at this stage, no offence under Sections
409, 420 or 120-B IPC is made out against the petitioner. The
continuation of these proceedings is an abuse of the process of
this Court and would result in manifest injustice.
17. The petition is accordingly allowed. Gopalganj Town
Police Station Case No. 186 of 2023, P.T.N. No. 864 of 2023,
dated 09.03.2023, registered under Sections 420, 409 and 120-B
of the Indian Penal Code, insofar as it concerns the petitioner
Mukesh Kumar Singh @ Dr. Mukesh Kumar Singh, is hereby
quashed. The proceedings pending before the learned Chief

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Judicial Magistrate, Gopalganj arising therefrom, to that extent,
shall stand closed.

(Ansul, J)
Siddharth Soni/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.06.2026
Transmission Date 25.06.2026