Vivek Mandal, aged about 26 years, S/o Badri Mandal, R/o- Sahana, P.O.- Jamtara, P.S v. 1. The State of Jharkhand 2. Rinki Devi, W/o Late Sudhir Yadav, R/o- Baidodih
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.907 of 2023 ------ Vivek Mandal, aged about 26 years, S/o Badri Mandal, R/o- Sahana, P.O.- Jamtara, P.S.- Jamtara, Dist- Jamtara … Petitioner Versus 1. The State of Jharkhand 2. Rinki Devi, W/o Late Sudhir Yadav, R/o- Baidodih, Panchayat- Manjori, P.O.- Bengabad, P.S.- Bengabad, District- Bengabad … Opposite Parties For the Petitioner For the State For the O.P. No.2 ------ : Mr. P. C. Roy, Advocate Mr. Shiv Shankar Jee, Advocate : Ms. Kumari Rashmi, Addl.P.P. : Mr. Nagmani Tiwari, Advocate Mr. Govind Ray Karan, Advocate ------ P R E S E N T
Legal Reasoning
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 the Code of Criminal Procedure, 1973 with a prayer to quash and set aside the order passed by the learned Sessions Judge, Giridih in Criminal Revision No.30 of 2022 dated 18.01.2023 whereby and where under the learned Sessions Judge has inter alia ordered that the order dated 22.02.2020 passed by the learned Judicial Magistrate-1st Class, Giridih, is required to be modified to proceed further in accordance with law and prayer has also been made to quash the consequential order dated 01.02.2023 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020 whereby and where under the learned Judicial Magistrate has 1 Cr. M.P. No.907 of 2023 taken cognizance of the offences punishable under Sections 302, 201/34 of the Indian Penal Code. 3. The brief fact of the case is that the petitioner is an accused of the said Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020. Police after investigation of the case found that the petitioner has committed the offences punishable under Sections 279, 337, 338, 427, 304 A of the Indian Penal Code and submitted charge-sheet against him. The learned Judicial Magistrate-1st Class, Giridih vide order dated 22.02.2020 in the said Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020 took cognizance of the offences punishable under the said sections, for which charge-sheet was submitted. The opposite party No.2 filed Criminal Revision No.30 of 2022 challenging the said order dated 22.02.2020 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with the said Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020. 4. The allegation against the petitioner is that the petitioner along with the co-accused persons assaulted the husband of the informant namely Sudhir Yadav with iron rod and killed him. The petitioner and the co-accused persons were trying to conceal the dead body of Sudhir Yadav by carrying it in a Maruti Vehicle and the said Maruti Vehicle collided with the wall of a salon. The learned Revisional Court considered that the F.I.R. was registered for the offence punishable under 302, 201/34 of the Indian Penal Code. From perusal of the case-diary, it appeared to the learned Revisional Court that the witness in paragraphs-11 and 14 have stated that Sudhir Yadav was murdered by accused persons. The Revisional Court then considered that Police has not recorded the statement of some witnesses before submission of the charge-sheet. The doctor 2 Cr. M.P. No.907 of 2023 during the course of post-mortem examination over the dead body of the deceased found ante-mortem injuries and opined that cause of death of the deceased was due to massive bleeding from internal organ and shock. The nature of weapon was hard blunt object. The learned Revisional Court observed that the learned Magistrate failed to consider that after investigation of the case police submitted charge-sheet for minor offences. Hence, it appeared to the learned Revisional Court that the learned Magistrate has passed the order taking cognizance dated 22.02.2020 with non-application of judicial mind to the materials available in the record and the learned Revisional Court by the impugned order dated 18.01.2023 passed in Criminal Revision No.30 of 2022, set aside the said impugned order dated 22.02.2020 and the court below was directed by the Revisional Court to appreciate all aspects of the materials collected during the investigation and to pass reasoned order. Consequentially, by order dated 01.02.2023, the learned Magistrate on the basis of the statement of the witnesses recorded in the case-diary during the course of investigation, under Section 161 of the Cr.P.C., postmortem report of the deceased- Sudhir Yadav as well as the other materials available in the record found and opined that the offence punishable under Section 302 of the Indian Penal Code is made out and took cognizance of the offences punishable under Section 302, 201/34 of the Indian Penal Code. 5. Learned counsel for the petitioner relies 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. The question, complainant/informant/prosecution would be precluded emerges as therefore, to whether the from 3 Cr. M.P. No.907 of 2023 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 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 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 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 4 Cr. M.P. No.907 of 2023 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 and it is submitted that therefore, both the Revisional Court in its order dated 18.01.2023 in Criminal Revision No.30 of 2022 and the learned Judicial Magistrate-1st Class, Giridih by the order dated 01.02.2023 have exceeded their jurisdiction in filling up the lacunae of the offences which were not mentioned in the charge-sheet by incorporating the same at the time of taking the cognizance. It is therefore submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed. 6. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P.. Learned counsel for the opposite party No.2 relies upon the judgment of the Hon’ble Supreme Court of India in the case of Dharam Pal & Others vs. State of Haryana & Another reported in (2014) 3 SCC 306 and submits that therein the question No.7.2 was to the effect that if the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the person who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with the co-accused persons to stand trial in connection with the case made out in the police report and the same was answered by the Constitution Bench of the Hon’ble Supreme Court of India by inter alia holding that the Magistrate has ample power to disagree with the Final Report that may be filed by police authorities under Section 173 (2) of the Code and to proceed against the accused persons dehors the police report and it has been further held that even in the event the 5 Cr. M.P. No.907 of 2023 Magistrate disagrees with the police report, he has two choices; he may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused and thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter and this includes the power to fill up the lacunae of the offence which has not been included by the police in the charge-sheet based on F.I.R., on which investigation has been conducted. Hence, it is submitted that there is no illegality committed by the courts concerned. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. Having heard the rivals submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the judgment in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra) was delivered on 25.11.2013 much after the judgment of in the case of Dharam Pal & Others vs. State of Haryana & Another (supra) which was decided on 18.07.2013. The question whether the lacunae of police by not including all the offences into the charge-sheet based on F.I.R. on which investigation has been conducted can be filled up by the Magistrate at the time of taking cognizance, was not before the Hon’ble Supreme Court of India in the case of Dharam Pal & Others vs. State of Haryana & Another (supra) but the same was directly dealt with by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra), so, in the considered opinion of this Court the 6 Cr. M.P. No.907 of 2023 judgment passed by the Sessions Judge, Giridih in Criminal Revision No.30 of 2022 dated 18.01.2023 and the order dated 01.02.2023 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020 is in the teeth of the principle of law settled by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra). As the Magistrate has no power to fill up the lacunae of police by not including all the offences into the charge-sheet based on F.I.R. on which investigation has been conducted, certainly the Revisional Court committed a grave illegality by setting aside the order impugned before it, which in effect amounted to filling up the lacunae of police by not including all the offences into the charge-sheet based on F.I.R. on which investigation has been conducted. And the Magistrate in passing the consequential order has also committed the said error. Hence, the said two orders , being contrary to the mandate of law, are not sustainable in law. 8. Therefore, the order dated 18.01.2023 passed by the learned Sessions Judge, Giridih in Criminal Revision No.30 of 2022 and the order dated 01.02.2023 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020, being not sustainable in law, are quashed and set aside and the order dated 22.02.2020 passed by the learned Judicial Magistrate-1st Class, Giridih in connection with Bengabad P.S. Case No.582 of 2019 corresponding to G.R. No.257 of 2020 is restored. 9. It is made clear that in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish 7 Cr. M.P. No.907 of 2023 Radhakrishnan Varde (supra), this order will not be an impediment for the prosecution to contend before the appropriate court at the stage of framing of charge that on the given state of facts, the appropriate sections, which according to the prosecution should be framed, be framed by the Court. 10. This Cr.M.P. stands allowed to the aforesaid extent only. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th of October, 2024 AFR/ Animesh 8 Cr. M.P. No.907 of 2023