Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.153 of 2008 Kanchana Kumari, Wife of Kamlesh Prasad, Resident of Mohalla-Jamalpur Bigha Mahadeo Ashthan, P.O. and P.S.Sheikhpura, District- Sheikhpura….Informant……Petitioner. Versus 1. The State Of Bihar 2. Kamlesh Prasad ‘Teacher’ son of Sri Bindeshwar Prasad 3. Shekhar Kumar ‘Teacher’ son of Bindeshwar Prasad 4. Bablu Kumar, son of Bindeshwar Prasad. 2 to 4 All residents of village Ismailpur, P.O.Maldah P.S. and District-Sheikhpura. 5. Satish Kumar, Son of Mosafir Mahto, Resident of village Chande, P.S.Karma, District-Sheikhpura---(accused)---Opposite Parties ---------------------------------- 09. 12.01.2012. Heard Mr. R.K.Sinha no.2, learned counsel for the petitioner, Mr. Birendra Kumar, learned counsel for the Opposite Parties no.2 to 5 and learned A.P.P. for the State. This application is directed against the order dated 14.05.2007 passed by the Additional Sessions Judge, Fast Track Court- IV, Sheikhpura in S.C.No.204 of 2006 by which charges have been framed against the Opposite Parties no.2 to 5 only under [STATUTE] and [STATUTE] has been held to be not applicable in the case. The case has been 2 transferred to the court of Additional Chief Judicial Magistrate, Sheikhpura for trial under Section 228 of the Code of Criminal Procedure. Learned counsel for the petitioner submits that without the evidence being recorded of the victim the court ought not to have held that [STATUTE] was not applicable. Learned counsel further submits that the court ought to have proceeded with the trial and if upon consideration of the materials the offence was not made out, the accused could have been acquitted from the said charge. However, by holding that [STATUTE] was not applicable and transferring the case for trial to the Magisterial court shall cause prejudice to the petitioner and would also unnecessarily delay matters. Learned counsel for the Opposite Parties no.2 to 5 submits that a petition has been filed under Section 227 of the Code of Criminal Procedure for discharge and the court concerned after due deliberation and after going through the materials produced before it as well as after hearing the 3 parties concerned has reached to the conclusion that [STATUTE] was not applicable and accordingly charges have been framed only under [STATUTE] . Learned counsel further submits that the date of occurrence is 03.05.2003 and the Opposite Party no.5 had filed Sheikhpura P.S.Case No.96 of 2003 against the husband of the petitioner who is alleged to have been kidnapped for offences under [STATUTE] in which the husband of the petitioner has been convicted and his appeal is pending before this Court. Learned counsel submits that the complaint petition was filed after two days and also that the incident happened as a result of assault from the side of the petitioner in as much as the husband had used iron rod by which the Opposite Party no.5 was hit on the hand and thus Sheikhpura P.S.Case No.93 of 2006 was instituted. Learned counsel sums up his argument by submitting that no prejudice has been caused to the cause of the petitioner since Section 216 of the Code of Criminal 4 Procedure empowers the court to alter or to add any charge any time before judgment is pronounced. He submits that if the petitioner is so convinced that the Opposite Parties no.2 to 5 are liable to be tried and punished under graver Sections, upon such evidence or material coming before the court concerned, the court has the power under Section 216 of the Code of Criminal Procedure to take remedial measures which includes directing a new trial. Learned A.P.P. for the State also takes the stand that the magistrate has ample power under Section 216 of the Code of Criminal Procedure to take necessary steps in the interest of justice as also to take care of genuine apprehension of the petitioner. Earlier the case diary had been called for and the same has since been received. This Court would not like to comment on the merits of the case either way since the same may prejudice the ultimate trial. Considering the facts and circumstances of this case, this Court is 5 not inclined to interfere in the matter at this stage. The application accordingly stands disposed off. The court shall proceed in the matter in accordance with law and the provisions of the Code of Criminal Procedure, 1973. Let the case diary be returned to the court below. B.Kr. ( Ahsanuddin Amanullah,J.)

Applicable IPC Section: 447

Statute Text:
Section 447 of the Indian Penal Code. Criminal trespass. Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.