Sudama Choudhary vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash the order dated 08.04.2024 passed by the learned Sessions Judge, Bokaro in Criminal Revision No.55 of 2024 whereby and where under the learned Sessions Judge dismissed the Criminal Revision and also the order dated 21.09.2022 passed by the learned Sub-Divisional Judicial Magistrate, Bokaro in connection with Balidih P.S. Case No.185 of 2021 corresponding to G.R. Case No.950 of 2022 whereby and where under the learned Sub-Divisional Judicial Magistrate has taken cognizance of the offences punishable under Section 323, 504, 506 and 34 of the Indian Penal Code in respect of which charge-sheet has been submitted but has not taken cognizance  of  the  other  offences,  which  the  petitioner,  claims  to  have also  been  made  out  on  the  basis  of  the  materials  collected  during  the investigation but which offences has not been mentioned in the charge sheet.

Learned counsel for the petitioner submits that though other offences are also made out the learned Sub-Divisional Judicial Magistrate,  ought  to  have  taken  cognizance  of  those  offences  as  well, hence, it is submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed.

Learned Addl. P. P. appearing for the State on the other hand submits that 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 wouldbe 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. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been observed 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 paragraph-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 investigation 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 charge- sheet.” (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 failed to include all the offences into the charge-sheet based on the F.I.R. on which investigation had been conducted, the 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 apolice 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 the charge under  Section  216,  218  or  under  Section  228  of  the  Cr.P.C.  as  the  case may be and the only remedy available to the prosecution after submission of the charge-sheet is 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.

In view of this settled principle of law, this Court has no hesitation in holding that neither the learned Sub-Divisional Judicial Magistrate, Bokaro in not taking cognizance of the offences, which have not been mentioned in the charge sheet nor the learned Sessions Judge, Bokaro in dismissing the criminal revision, has committed any illegality in  passing  the  impugned  orders  warranting  interference  of  this  Court under Section 482 of the Code of CriminalProcedure, 1973.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.