Relying upon the judgment of this Court in the case of Vivek Mandal v. State of Jharkhand & Anr. passed in CrMP No
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 916 of 2023 1. Rekha Devi W/O Binod Bihari Thakur @ Vinod Thakur, aged about 49 years, 2. Binod Bihari Thakur @ Vinod Thakur @ Vinod Bihari Thakur, son of Jagdish Thakur, aged about 54 years, 3. Bikash Kumar @ Bikash Kumar Thakur @ Vikash Thakur S/O Binod Bihari Thakur @ Vinod Thakur, aged about 29 years, All are resident of Village- Rampur, P.O & P.S.- Pratappur, District- Chatra, Jharkhand Versus ...... Petitioners 1. The State of Jharkhand 2. Kedar Nath Thakur Son of Late Jagdish Thakur, resident of Village- Rampur, PO & P.S. Pratappur, District- Chatra, Jharkhand ….. Opposite Parties For the Petitioner : Mr. Manoj Kr. Choubey, Adv. For the State For the O.P. No. 2 : Ms. Bakshi Bibha, Adv. Mr. Krishna Prajapati, Adv. : Ms. Nehala Sharmin , Spl. PP Mr. Avinash Kumar, Adv. P R E S E N T
Legal Reasoning
records, found prima facie case for the offences punishable under Sections 341, 323, 325, 307, 504, 34 of IPC against the petitioners. 1 Cr.M.P. No. 916 of 2023 3. The brief facts of the case is that upon police submitting charge sheet dated 31.10.2021, in the said case, learned SDJM, Chatra took cognizance of the offence punishable under Sections 341, 323, 325, 307, 504, 34 of IPC. Subsequently, supplementary charge sheet was filed by the police against these three petitioners for the having committed offences punishable under Sections 341, 323, 325, 504, 34 of IPC and learned SDJM, Chatrar found prima facie case against them, as already indicated above and ordered for issuance of summons. 4. Relying upon the judgment of this Court in the case of Vivek Mandal vs. State of Jharkhand & Anr. passed in CrMP No. 907 of 2023 dated 16.10.2024, learned counsel for the petitioners submits that this court, in that case, relied upon the judgment of 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. as The emerges question, therefore, 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) and submits that therein 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 2 Cr.M.P. No. 916 of 2023 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. 5. It is next submitted by the learned counsel for the petitioners that in this case, since the supplementary charge sheet has been submitted against the petitioners for having committed the offences other than the offence punishable under Section 307 of IPC, learned Magistrate ought not have found the prima facie case of the offence punishable under Section 307 of IPC, hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed. 6. Learned Spl. P.P. and learned counsel for the opp. party no. 2, on the other hand, vehemently oppose the prayer of the petitioners and submit that it is a settled principle of law that learned Magistrate takes cognizance of the offence, not of the accused persons and undisputedly, in this case, cognizance has been taken by learned SDJM, Chatra vide its order dated 13.12.2021 of offences punishable under Sections 341, 323, 325, 307, 504, 34 of IPC. It is next submitted that in a case, cognizance of the offence is can be taken only once and not on several occasions and in this case also, learned Magistrate has not taken the cognizance vide order dated 04.01.2021 rather he has found the prima facie case for the offence for which the cognizance was already taken and the said order dated 13.12.2021 of learned SDJM, Chatra in G.R. case no. 1037 of 2021, having not been challenged, has reached finality, hence, no illegality has been committed by learned SDJM, Chatra, by finding prima facie case on the basis of the materials in the record, for the selfsame occurrence, for which the petitioners have also been implicated with the aid of Section 34 of the IPC for having committed the offences alleged, in furtherance of their common intention, hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to 3 Cr.M.P. No. 916 of 2023 mention here that the facts of this case is entirely different from the facts of the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra). In this case, undisputedly, learned SDJM, Chatra has taken cognizance for the offence punishable under Sections 307 of IPC as well also vide order dated 13.12.2021 and the said order has not been challenged. It is needless to mention that the law is well settled that cognizance is taken of the offence and not of the offenders. In respect of one offence, if several accused persons are found involved in the offence with the aid of Section 34 of the IPC, certainly, there cannot be a separate trial of the accused persons, the one who attempted to murder is to be tried by learned Sessions Judge while rest of the persons who are aiding and who caused simple hurt and grievous hurt, can be tried by a Magistrate. It is needless to mention that the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra) prevents filling up of lacunae in the charge sheet submitted by police by not mentioning some of the offences made out on the allegations found to be true against the accused persons by the IO of the case by the Magistrate at the time of taking cognizance, but not afterwards. Under such circumstances, as the undisputed fact remains that petitioners are alleged to have been involved in the same occurrence in respect of which, cognizance has been taken by learned SDJM, Chatra for the offence punishable under Section 307 also; consequent upon the charge sheet, having been submitted by the police against the co-accused and the fact remains undisputed that the petitioners in the same occurrence, have committed the offences punishable under Sections 341, 323, 325, 504, 34 of IPC, so no illegality has been committed by learned SDJM, Chatra, by finding prima facie case, for the 307 of IPC also, against the petitioners. 8. Accordingly, in the considered opinion of this court, there is no justifiable reason for this court to interfere with the impugned order dated 04.01.2021 in connection with Pratappur P.S. Case no. 184 of 2021 (G.R. No. 1037 of 2021). 4 Cr.M.P. No. 916 of 2023 9. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated, the 25th October, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 5 Cr.M.P. No. 916 of 2023
Arguments
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of CrPC with a prayer for quashing and setting aside the order dated 04.01.2021 passed in connection with Pratappur P.S. Case no. 184 of 2021 (G.R. No. 1037 of 2021) whereby learned SDJM, Chatra upon considering the materials in the record, having perused the FIR, supplementary case diary, supplementary charge sheet and entire