Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No. 585 of 2010 ====================================================== Parash Nath Gupta S/O Late Surendra Prasad Resident of Village- Nardiganj Durga Asthan, P.S.-Nardiganj, District-Nawada. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Krishna Ram S/O Late Meghu Ram Resident of Village-Nardiganj Durga Asthan,P.S.-Nardiganj,District-Nawada. 3. Pramod Prasad S/O Kishori Ram Resident of Village.-Nardiganj Durga Asthan,P.S.-Nardiganj,District.-Nawada. 4. Ashok Prasad S/O Kishori Ram Residnet of Village-Nardiganj Durga Asthan,P.S.-Nardiganj,District-Nawada. 5. Pradeep Kumar S/O Kishori Ram Resident of Village-Nardiganj Durga Asthan,P.S.-Nardiganj,District-Nawada. 6. Gopal Kumar S/O Kishori Ram Resident of Village Nardiganj Durga Asthan,P.S.-Nardiganj,District.-Nawada. 7. Gore Lal Kumar S/O Kishori Ram Resident of Village-Nardiganj Durga Asthan,P.S.-Nardiganj,District.-Nawada. 8. Karoo Kumar S/O Kishori Ram Resident of Village-Nardiganj Durga Asthan,P.S.-Nardiganj,District-Nawada. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL ORDER 3. 11-05-2012 Mr. Durgesh Nandan, learned counsel for the petitioner and learned A.P.P. for the State. The present revision application is directed against the order dated 23.11.2009 passed by the Chief Judicial Magistrate, Nawada in Nardiganj P.S. Case No. 43/2009, Tr. No. 838/2009 by which the Chief Judicial Magistrate has taken cognizance only under [STATUTE] . Patna High Court CR. REV. No.585 of 2010 (3) dt.11-05-2012 2 / 4 2 Learned counsel for the petitioner submits that the said order is erroneous and unsustainable since the cognizance ought to have been taken under [STATUTE] also. It is also submitted that as per the F.I.R. and the sequence of events it can be said that the accused had assaulted with the intention to kill. It is further submitted that there is specific allegation of the accused taking away money as well as gold chain and thus [STATUTE] should also have been included in the order taking cognizance. Learned counsel draws the attention of this Court to the protest petition filed by the petitioner just three days after the incident in which it is clearly stated that the Investigating Officer was in collusion with the accused and the informant suspected that the charges would be diluted. The Chief Judicial Magistrate had also forwarded the said protest petition to the Superintendent of Police. Learned counsel submits that from perusal of the order impugned it is obvious that the protest petition has not been considered at all by the Chief Judicial Magistrate while taking cognizance. It is submitted that the same is illegal since the Chief Judicial Magistrate was obliged to consider the protest petition and then it was open to him to pass any order and the same not having been done, according to learned counsel for the petitioner, is illegal which makes the impugned order unsustainable. Patna High Court CR. REV. No.585 of 2010 (3) dt.11-05-2012 3 / 4 3 Learned A.P.P. for the State on the other hand submits that the order taking cognizance does not suffer from any illegality since it is not the case of the petitioner that sufficient materials exist in the case diary which was available before the Court so as to attract the ingredients of [STATUTE] . He submits that from the very plain reading of the F.I.R. it is clear that the incident if at all happened, was in the heat of the moment and that too only as a result of there being a dispute on the use of a toilet. It is further submitted that even from the injury report it is obvious that the same were simple in nature and were neither life threatening nor grievous. Learned counsel for the petitioner submits that in view of the aforesaid, the order taking cognizance cannot be held to be bad in law. Considering the facts and circumstances of the case, this Court is not inclined to interfere in the order impugned. Even though there might have been a slip on the part o the Chief Judicial Magistrate in not mentioning the protest petition in the order taking cognizance, but the same would not make the order infirm as what was stated in the protest petition was identical to what had been stated in the F.I.R. which was available on record as well as the case diary which had been perused by the Court. However, this Court would like to observe that no prejudice has been caused to the petitioner, who is Patna High Court CR. REV. No.585 of 2010 (3) dt.11-05-2012 4 / 4 4 the informant, inasmuch as the accused are facing trial. If during the course of trial sufficient materials/evidence comes before the Court justifying addition of any section, the charge can be altered by the Court concerned under Section 216 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) In view of the aforesaid, this application stands disposed off with a liberty to the petitioner to file an appropriate application under Section 216 of the Code, if sufficient materials according to him come during the trial justifying the Court to alter the charge including addition of charge(s). If such a petition is filed, the Court concerned shall take due notice of it and pass orders accordingly. Anand Kr. (Ahsanuddin Amanullah, J.)

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.