[Cites 8, Cited by 0]
Jharkhand High Court
Kaifi Alam Aged About 40 Years vs The State Of Jharkhand on 20 February, 2026
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
[2026:JHHC:5280]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.490 of 2023
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Kaifi Alam aged about 40 years, son of Fakre Alam, Resident of
Village- Badam, P.O. & P.S. - Barkagaon, Dist.- Hazaribag.
... Petitioner
Versus
1. The State of Jharkhand
2. Fatma Suraiya wife of Kaifi Alam & daughter of late
Masiullah, at present Resident of Village- Neem Tola,
Chitarpur, P.O.- Chitarpur, P.S.- Rajrappa, Dist.- Ramgarh.
... Opposite Parties
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For the Petitioner : Mr. Shailendra Jit, Advocate
For the State : Mr. Pankaj Kumar, P.P.
For the OP No.2 : Md. Imtiaz Khan, Advocate
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PRESENT
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 with the prayer to quash the entire criminal proceedings in
connection with Ramgarh (Mahila) P.S. Case No. 29 of 2020 including
the order dated 08.09.2021 passed by the learned Chief Judicial
Magistrate, Ramgarh whereby and where under the learned Chief
Judicial Magistrate, Ramgarh has taken cognizance of the offence
punishable under Section 494 of the Indian Penal Code inter alia against
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the petitioner basing upon the charge sheet submitted by the police in
the said case.
3. Learned counsel for the petitioner submits that the petitioner is
not appearing before the trial court over four years and absconding,
hence, the learned Judicial Magistrate has fixed the case for appearance
of the petitioner. It is next submitted that allegation against the
petitioner is false. The informant is in the habit of lodging false cases.
Though the allegation is that during the subsistence of the marriage of
the petitioner with the informant, the petitioner has solemnized
marriage which is void by reason of the same taking place during the
lifetime of the informant but the lady with whom the petitioner has
solemnized second marriage namely Arina has not been arrayed as an
accused of the case. It is further submitted that the offence punishable
under Section 494 of the Indian Penal Code is not made out because the
parties are Muslim; so, second marriage is not void. Hence, it is
submitted that the prayer as prayed for in this Criminal Miscellaneous
Petition be allowed.
4. Learned Public Prosecutor 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 this Criminal
Miscellaneous Petition and submit that there is no hard and fast rule
that second marriage of any Muslim man when his wife is living, is not
void and at best, the same is a disputed question of fact; for
determination of which, the evidence is required to be led by the
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parties. Hence, at this nascent stage, in exercise of the power under
Section 482 of the Code of Criminal Procedure, this Court cannot
decide any highly contentious issue of fact. It is next submitted that
since the cognizance of the offence has been taken by the learned Chief
Judicial Magistrate, Ramgarh based on a Police Report, certainly, the
Judicial Magistrate cannot add or subtract any section at the time of
taking cognizance but the same would be permissible for the learned
Chief Judicial Magistrate, Ramgarh or the learned trial court only at the
time of framing of charge; which is yet to be framed and which cannot
be done so far because the petitioner knowing pretty well that the
summoning order has been passed against him since the year 2021, has
successfully avoided appearing before the trial court till today, by
hoodwinking the process of the court; which shows that the petitioner
does not have any regard for law and such person is not entitled to
invoke the jurisdiction of this Court under Section 482 of the Code of
Criminal Procedure. Hence, it is submitted that this Criminal
Miscellaneous Petition, being without any merit, be dismissed.
5. Having heard the rival submissions made at the Bar and after
carefully going through the materials available in the record, it is
pertinent to mention here that it is a settled principle of law 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
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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)
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 has 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 of charge
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under Sections 216, 218 or under Section 228 of the Code of Criminal
Procedure as the case may be.
6. Now coming to the facts of the case, the undisputed fact remains
that the learned Chief Judicial Magistrate, Ramgarh has taken
cognizance of the offence based on the charge sheet submitted by the
police after investigation of the case. The charge sheet was submitted in
respect of the offence punishable under Section 494 of the Indian Penal
Code, so, even if the learned Chief Judicial Magistrate, Ramgarh was of
the opinion to that some other offences are also made out but
cognizance of that offence could not have been taken by the learned
Chief Judicial Magistrate, Ramgarh, in view of the settled principle of
law that such power can only be exercised by the learned Chief Judicial
Magistrate, Ramgarh while considering framing of charge; which is yet
to take place because of non-cooperating attitude of the petitioner in
avoiding to appear before the learned trial court for over four years
though he is knowing pretty well that the summoning order has been
passed against him.
7. The question as to whether solemnization of the marriage of the
petitioner with another woman other than the informant when the
informant is living, is void or not is a question of fact and such
question of fact has been found to be true by the police during the
investigation of the case in which the petitioner also took part;
therefore, for determination of which, the evidence is required to be
produced by the parties which can only be done in a full-dress trial of
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the case, but certainly the same cannot be adjudicated by this Court in
exercise of its power under Section 482 of the Code of Criminal
Procedure and in the absence of prosecution being given any
opportunity to lead evidence.
8. So far as the contention of the petitioner that the second wife -
Arina having not been impleaded as an accused is concerned, the
learned trial court is having ample power even during the trial in
exercise of the power under Section 319 of the Code of Criminal
Procedure to implead any accused person. So, merely because an
accused person has been left out in the charge sheet, the same in itself
is not a ground to quash the entire criminal proceedings.
9. In view of the discussions made above, this Court is of the
considered view that this is not a fit case where the prayer of the
petitioner made in this Criminal Miscellaneous Petition is to be
acceded to in exercise of its power under Section 482 of the Code of
Criminal Procedure.
10. Accordingly, this Criminal Miscellaneous Petition, being
without any merit, is dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 20th of February, 2026
AFR/ Saroj
Uploaded on 22/02/2026
