Jharkhand High Court

Aniket Jain vs The State Of Jharkhand on 22 March, 2022

                                              1

                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                  W.P. (Cr.) No. 02 of 2022
             Aniket Jain, aged about 33 years, Son of Kajoremal Jain, resident of
             Boddom Bazar, P.O. & P.S. Sadar, District- Hazaribag  ... Petitioner
                                        -Versus-
             1. The State of Jharkhand
             2. Santosh Kumar Jain, son of Late Subshmal Jain
             3. Rajat Jain, Son of Santosh Kumar Jain
             4. Raunak Jain, son of Santosh Kumar Jain
                 All resident of Gola Road, Boddom Bazar, P.O. & P.S. Sadar, District-
                 Hazaribag                                         ... Respondents
                                          -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                          -----
             For the Petitioner     : Mr. Hemant Kumar Shikarwar, Advocate
             For the State          : Mr. Ashish Kumar, AC to GA-II
                                          -----

04/22.03.2022. This petition has been filed for quashing the order dated 08.10.2021

passed in Cr. Rev. No.31 of 2021 passed by the learned Sessions Judge,

Hazaribag, whereby, the revision petition has been dismissed and the order

taking cognizance dated 05.07.2021 has been affirmed.

2. On the written report of the petitioner, FIR was registered alleging

therein that his shop is located at Gola Road, Boddom Bazar, Hazaribag in

which he does business of cosmetic and Betel materials. For the last few

days, the uncle of the informant namely Santosh Kumar Jain and his two

sons namely Rajat Jain and Raunak Jain used to create problems in the

smooth working of business, for which, the informant/petitioner has written

application before the Sub-Divisional Officer, Hazaribag on 22.03.2021. On

28.03.2021, the accused persons were doing construction work for which

the informant went and found the back wall of his shop broken, the goods

present in the shop of the informant was stolen by the opposite parties. In

the shop of the informant Maisor Sandal Shop, Kapoor, Lady Diana Soap,

Passport Perfume, Wonder Wings sanitary pad, Ayush Shampoo, Dilkhush

Pan Chatni about Rs.20,000/- cash, documents relating to shop and other

articles. The total price of the stolen articles was Rs.7-8 Lakhs. In the FIR,

the informant has mentioned that he has full believe that the articles kept in

the shop of the informant was stolen by the accused persons who are the

opposite parties in the present case.

3. After investigation, the police submitted chargesheet dated

23.05.2021 under Section 448 of the Indian Penal Code against the accused

and the learned Chief Judicial Magistrate, Hazaribag vide order dated

05.07.2021 took cognizance of the offence under Section 448 of the Indian

Penal Code. Aggrieved with this cognizance order, the petitioner moved

before the learned Sessions Judge, Hazaribag in Cr. Rev. No.31 of 2021 on

the ground that Sections 379 and 461 of the Indian Penal Code was not

considered and cognizance under those Sections have not been taken. The

learned Sessions Judge, Hazaribag has discussed the case of the petitioner

and after considering the arguments, came to the conclusion that there is

no illegality in the order taking cognizance and dismissed the criminal

revision filed by the petitioner.

4. Mr. Hemant Kumar Shikarwar, learned counsel for the petitioner

submits that the witnesses have disclosed that there were some theft from

the shop of the petitioner. By way of referring chargesheet, he submits that

in the chargesheet, materials are there to take cognizance under Sections

379 and 461 of the Indian Penal Code. He further submits that the

revisional order is bad in law on the ground that it has been discussed in

the revisional order that the order in question is not a final order and it is an

intermediate order. By way of referring the judgment rendered in the case

of Rajendra Prasad v. Bashir & others, reported in (2001) 8 SCC 522,

he submits that the learned Magistrate is having power to take cognizance

in terms of provisions as contained in Section 193 Cr.P.C. He further relied

upon the judgment rendered in the case of Nupur Talwar v. C.B.I.,

reported in (2012) 3 SCC 188 and in the case of SWIL v. State of Delhi

& others, reported in (2001) 6 SCC 670.

5. Per contra, Mr. Ashish Kumar learned counsel for the State submits

that the cognizance order is a final order and the learned Sessions Judge

has dismissed the petition on merit and not on the ground that the order

taking cognizance was not final order or intermediate order. He further

submits that the witness namely Sudhanshu Pathak, Revenue Inspector of

Sadar Circle Office was authorized to verify the issue physically with regard

to dispute over shops in question. On physical verification, he found that

shops were vacant, which comes in paragraph 19 of the case diary. Same

facts have also been supported by witness ASI Naseem Akhtar at paragraph

33 of the case diary and by witness ASI Anil Kumar Singh at paragraph 35

of the case diary.

6. In view of the above facts and considering the submission of the

learned counsel for the parties, this Court has gone through the materials

on the record. The learned Sessions Judge, Hazaribag has discussed the

case of the petitioner, at length and it has been held in page 7 of the

revisional order that the revision is maintainable against order taking

cognizance and summoning of accused and this issue is not res-integra.

Thus, it is apparent that the learned Sessions Judge, Hazaribag has held

that the revision is maintainable against the order taking cognizance.

Looking into the second last paragraph of the revisional order, it transpires

that the said criminal revision has been dismissed on merit, not on the

ground that the order was intermediate order or final order. Thus, the

contention of the learned counsel for the petitioner is misconceived with

regard to the final order or intermediate order. The learned Sessions Judge

has also considered Section 216 of Cr.P.C. and held that charge may be

altered or added at any stage before pronouncement of judgment. A

reference may be made to the judgment rendered by the Hon'ble Supreme

Court in the case of State of Gujarat v. Girish Radhakrishnan Varde ,

reported in (2014) 3 SCC 659 . Paragraph 23 of the said judgment is

quoted herein below:

"23. We, therefore, dispose of this appeal by observing and clarifying the order of the High Court to the extent that the appellant State of Gujarat shall be at liberty to raise all questions relating to addition of the sections on the basis of the FIR and material collected during investigation at the time of framing of charges by the trial court since the matter arises out of a police case based on the FIR registered under Section 154 CrPC and not a complaint case lodged before the Magistrate under Section 190 CrPC. Thus, the High Court although may be correct in observing in the impugned order that the trial court was not precluded from modifying the charges by including or excluding the sections at the appropriate stage during trial, it was duty-bound in the interest of justice and fair play to specify in clear terms that the trial court would permit and consider the plea of addition of sections at the stage of framing of charge under Section 211 CrPC since the matter emerged out of a police case and not a complaint case before the Magistrate in which event the Magistrate could exercise greater judicial discretion. Ordered accordingly."

7. So far as the judgments relied by Mr. Hemant Kumar Shikarwar,

learned counsel for the petitioner are concerned, it is well proposition of law

that if the learned Magistrate come to conclusion that other sections are

required to be added at the time of taking cognizance, he can do so.

However, in the case in hand, the learned Magistrate has taken cognizance

under Section 448 of the Indian Penal Code only as submitted in the

chargesheet. The right of the petitioner has been taken care of by the

learned Sessions Judge in light of Section 216 of Cr.P.C.

8. In view of the above facts and looking to the judgment of the learned

Sessions Judge, it transpires that he has taken care of the right of the

petitioner in light of Section 216 of Cr.P.C. and has fairly held that at the

time of framing of charge, if material is there, other sections can be added.