Jharkhand High Court
Md. Firoz Quraishi @ Mohammad Firoj … vs State Of Jharkhand on 19 December, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1497 of 2023
Md. Firoz Quraishi @ Mohammad Firoj Quraishi @ Firoz, aged about
47 years, S/o Late Mohammad Arif Quraishi, resident of Imarat Nagar,
Domtoli, P.O. & P.S. -Lower Bazar, District -Ranchi -834001.
.... Petitioner
Versus
1. State of Jharkhand
2. Farhan Quraishi, S/o Javed Quraishi,
3. Faizan Quraishi, S/o Javed Quraishi,
4. Zahid Quraishi, S/o Khabul Quraishi
O.P. Nos. 2 to 4 presently residing at Azad Basti, Phool Bagan, P.O. &
P.S. -Lower Bazar, District -Ranchi.
.... Opp. Parties
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioner : Md. Anisurzzama Khan, Advocate
For the State : Mr. Abhay Kr. Tiwari, Addl. P.P.
For the O.P. Nos.2 to 4 : Mr. Nilesh Kumar, Advocate
: Mr. Ayush Kr. Verma, Advocate
…..
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the
jurisdiction of this Court under Section 482 Cr.P.C. with a prayer
to quash the part of the order dated 14.03.2023, passed in Criminal
Revision No. 51 of 2023 by the learned Judicial Commissioner,
Ranchi by which the learned Judicial Commissioner, Ranchi has
affirmed the order dated 10.02.2022, passed in Lower Bazar P.S.
Case No. 213 of 2021 corresponding to G.R. Case No. 168 of 2022,
by the learned Judicial Magistrate -1st Class, Ranchi by which even
though charge sheet has been submitted by the police finding that
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the offence punishable under Section 307 Indian Penal Code isalso made out but the learned Judicial Magistrate did not take
cognizance of the offence punishable under Section 307 of the
Indian Penal Code but took cognizance of the remaining offences
in respect of which the chargehseet was submitted and the learned
Judicial Commissioner, Ranchi vide order dated 14.03.2023 in
Criminal Revision No. 51 of 2023 without finding any necessity to
interfere with the impugned order, dismissed the criminal
revision.
3. The brief fact of the case is that F.I.R. was instituted on the
written report of the informant who is the petitioner herein
against the opposite party nos. 2 to 4 as accused persons for
having committed the offences punishable under Section
341/323/324/307/34. Police after investigation of the case found
the allegations to be true and submitted charge sheet mentioning
therein that the opposite party nos.2 to 4 who are the accused
persons of the said case have committed the offences punishable
under Section 341/323/324/307/34 but the learned Magistrte in
the order dated 10.02.2022 observed that the perusal of the case
diary and case record reveals that there is no ingredient of
attempting to murder and therefore took cognizance of the
offences punishable only under Section 323/324/341/34 of the
Indian Penal Code.
4. It is submitted by the learned counsel for the petitioner relying
upon the Judgment of the Hon’ble Supreme Court of India in the
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case of S.K. Khaja Vs. The State of Maharashtra in CriminalAppeal No. 1183 of 2011 dated 23.08.2023 that in the facts of that
case where only simple injuries were sustained by the victim, the
Hon’ble Supreme Court of India sustained the conviction under
Section 307 of the Indian Penal Code also. It is next submitted that
the Magistrate cannot add or subtract the Sections mentioned in
the charge sheet at the time of taking cognizance. Hence, it is
submitted that the prayer as prayed for by the petitioner in this
criminal miscellaneous petition be allowed.
5. The learned Addl. P.P. and the learned counsel for the opposite
party nos.2 to 4 on the other hand vehemently opposes the prayer
as made in this criminal miscellaneous petition and submits that
the offence punishable under Section 307 of the Indian Penal Code
being not made out in the facts of the case, the learned Magistrate
has rightly not taken cognizance of the offence punishable under
Section 307 of the Indian Penal Code. Hence, it is submitted that
this criminal miscellaneous petition being without any merit be
dismissed.
6. Having heard the submissions made at the Bar and after going
through the materials available in the record, it is pertinent to
mention here that it is a settled principle of law that the
Magistrate before whom the matter comes up for taking
cognizance after submission of charge-sheet based on police
report, cannot add or subtract Sections at the time of cognizance;
as the same would be permissible by the trial court only at the
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time of framing the charge under Section 216, 218 or under Section
228 of the Cr.P.C. as the case may be; as has been held 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 charge-sheet.”
(Emphasis supplied)
7. In view of the settled principle of law, this Court has no
hesitation in holding that the learned Magistrate has committed a
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grave illegality by subtracting Section 307 of the Indian Penal
Code , the offences which were found by the police of the
investigation of the case, to have been committed by the petitioner
and as mentioned in the chargesheet, at the time of taking
cognizance of the same, vide order dated 10.02.2022. The learned
Judicial Commissioner has also committed a grave illegality by
not considering the said settled principle of law, while passing the
order dated 14.03.2023 in Criminal Revision No. 51 of 2023.
8. Accordingly, both the orders dated 10.02.2022, passed by the
learned Judicial Magistrate -1st Class, Ranchi in G.R. Case No. 168
of 2022 arising out of Lower Bazar P.S. Case No. 213 of 2021 and
the order dated 14.03.2023, passed by the learned Judicial
Commissioner, Ranchi in Criminal Revision No. 51 of 2023 being
not sustainable in law are quashed and set aside.
9. The learned Judicial Magistrate -1st Class, Ranchi is directed to
pass a fresh order in accordance with law.
10. In the result, this criminal miscellaneous petition is allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 19th December, 2024
AFR/Sonu-Gunjan/-
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