Sunil Kumar Singh 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 CrPC, with the prayer to quash and set aside the order dated 09.12.2016 passed by learned Chief Judicial Magistrate, Bokaro in connection with Chas P.S. case no. 98 of 2016 corresponding to G.R. no. 492 of 2016 whereby and where under, learned Chief Judicial Magistrate, Bokaro has taken cognizance of the offences punishable under Sections 341, 323, 325, 307, 34 of the IPC against the petitioners.

Learned counsel for the petitioners submits that the petitioners do not know to which date, the case is next fixed, in which court the case is pending at present and for which purpose. It is next submitted that the allegation against the petitioners is false and the petitioners were not present at the place of occurrence. It is further submitted that offence punishable under Section 307 of IPC is not made out against the petitioners even if the entire allegations made against them are considered to be true in their entirety, hence, it is submitted that prayer as prayer for in this criminal miscellaneous petition be allowed.

Learned Addl. PP and learned counsel for the Opp. Party no. 2 on the other hand, vehemently oppose the prayer of the petitioners and submit that there is direct and specific allegation against each of the petitioners of assaulting the informant with lathi and danda along with four to five hired persons. It is next submitted that learned Magistrate at the stage of taking cognizance on the basis of the police report cannot add or subtract any section as mentioned in the charge sheet. It is next submitted that the contention of the petitioners that the petitioners were not present at the time of occurrence, is a defence which cannot be considered by the High Court in exercise of its power under Section 482 of CrPC. It is next submitted that the petitioners have not come to court with clean hands as they have not disclosed that at which stage, the case is pending and before which court the same is pending, hence, it is submitted that this Criminal Miscellaneous Petition being without any merit, be dismissed.

Having heard the submissions made at the Bar and after going through materials available in the record, this Court finds that there is direct and specific allegation against the petitioners of assaulting the informant with lathi and danda severely with hired persons, causing severe injuries to the informant to such an extent that the informant became senseless. The police after investigation of the case and after obtaining injury report found the allegations against the petitioners to be true and submitted the charge sheet against the petitioners but the petitioners have filed only a portion of the charge sheet as Annexure 2 for the reasons best known to the petitioners, and have suppressed the complete charge sheet from this Court.

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, 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 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 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 failed to include all the offences into the charge-sheet based on the FIR 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 lacuna 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 Sections 216, 218 or under Section 228 of CrPC.

The petitioners have not come to court with clean hands and the petitioners are not ready and willing to disclose whether the case has already been committed to the court of sessions and whether the charge sheet has been framed or not and what is the next date to which the case is fixed and not even filed in the relevant portion of the charge sheet basing upon which the learned Magistrate has taken cognizance of the offences. From the materials available in the record, this Court finds that there is no justifiable reason to interfere with impugned order which is based on the charge sheet and the complete charge sheet has been withheld by the petitioners for the reasons best known to them, warranting interference of this court in exercise of its power under section 482 of CrPC.

So far the contention of the petitioners that the petitioners were not present at the time of the alleged occurrence is concerned, it is a settled principle of law that the High Court in exercise of power under Section 482 of CrPC, cannot consider the defence of the accused persons and the veracity of the evidence put forth by the accused, as has been held by the Hon’ble Supreme Court of India, in the case of Madhya Pradesh vs. Awadh Kishore Gupta & Ors. reported in 2004 2 Supreme 501.

It is also a settled principle of law that no mini trial can be conducted by the high court in exercise of power under Section 482 Cr.P.C, 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)

Under such circumstances, this Court is of the considered view that there is no justifiable reason to accede to the prayer made by the petitioners in this CrMP in exercise of its power under Section 482 of CrPC.

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