Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1030 of 2012 ====================================================== 1. The State Of Bihar, Through, District Magistrate, Siwan .... .... Petitioner/s Versus 1. Md. Shahabuddin, S/O Sheikh Hasibullah, resident of Village Pratap Pur, P.S. Hussainganj, District Siwan, at Present convicted prisoner in Siwan Jail. 2. Rajkumar Sah, S/O Triloki Sah, resident of Kasera Toli, P.S. Siwan Town, District Siwan. 3. Munna Mian @ Sonu @ Arif Hussain, S/O Maqbool Hussain, resident of Village Tetaria, P.S. Hussainganj, District Siwan. 4. Shaikh Aslam, S/O Shaikh Saliq, resident of Kaseratoli, P.S. Siwan Town, District Siwan. .... .... Opposite party/s ====================================================== Appearance : For the Petitioner/s : Mr. S.Dayal For the Opp. Party No.1 : Mr. Yogesh Chandra Verma, Sr. Advocate Ms.Fauzia Shakil, Advocate For Opp. Party Nos. 2 to4 : Mr.Shoeb Alam, Advocate Mr. Humaya A. Khan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. ORDER 5 18-12-2012 Whether a petition filed under Section 216 of the Code of Criminal procedure, 1973 ( for short „Cr.P.C.‟) seeking addition or alteration of charge against the accused can be rejected summarily merely on the ground of delay, without considering the Patna High Court CR. REV. No.1030 of 2012 (5) dt.18-12-2012 2 / 16 2 prayer on merit by examining and scrutinizing the materials available on the record, is the central issue requiring determination by this Court in the present proceeding. 2. Material facts relevant for deciding the present proceeding are not in dispute. One Kalawati Devi lodged a criminal case on 16.8.2004 with allegations that her two sons, namely, Girish Kumar alias Niku and Satish Kumar alias Sonu have been assaulted by the accused persons and both of them have been abducted in order to murder them. It was also alleged that shops situate near the bus stand were put on fire. On the basis of the aforesaid Fardbeyan, Siwan Mofassil P.S.Case No. 131 of 2004 dated 16.8.2004 under [STATUTE] was instituted by the police and investigation was taken up. Indisputably, on close of investigation, charge sheet was submitted against the accused opposite party nos.1 to 4 for offences under Sections 341,323,380,436,364 and 120-B of the Indian penal Code. After cognizance being taken, the case was committed to the court of Sessions for trial of the accused persons, giving rise to Sessions Trial No. 158 of 2010. 3. Suffice is to state that charges were framed against the accused opposite parties on 4.6.2010. So far accused-opposite party nos.1 to 4 are concerned, they have been charged under [STATUTE] . However, Opposite party nos. 2 to 4 have further been charged for offences under [STATUTE] . Admittedly, recording of evidence of P.Ws. commenced on 1.7.2010 and altogether ten prosecution witnesses were examined till 26.8.2011. After close of the prosecution evidence, and complying with the mandatory requirements under Patna High Court CR. REV. No.1030 of 2012 (5) dt.18-12-2012 3 / 16 3 Cr.P.C., arguments commenced for disposal of the aforesaid Sessions Trial No. 158 of 2010. While the arguments were still continuing, on 9.8.2012 a petition under Section 216 Cr.P.C. was filed on behalf of the prosecution with a prayer for addition of charges under [STATUTE] against the accused-opposite parties. It is the case of the prosecution that in view of evidence of P.Ws., particularly on the basis of evidence of P.Ws.1,4, 5 and 6, there are materials showing commission of crime of murder of both the victims by the accused persons, as a result of which amendment of charge is required, and, to be precise, there are materials for addition of charges under [STATUTE] against the accused-opposite parties. It is the specific case of the prosecution that during the course of trial materials have surfaced that both the abducted persons were killed by the accused persons in conspiracy to each other and their dead bodies have been made traceless, therefore, they are required to be tried for the said charges also. The aforesaid petition dated 9.8.2012 filed on behalf of the prosecution under Section 216 Cr.P.C. for addition of charges has finally been rejected by the learned Additional Sessions Judge-I-cum-Special Judge, Siwan, by his impugned order dated 17.8.2012 passed in Sessions Trial No. 158 of 2010. 4. The State of Bihar through the District Magistrate, Siwan, being aggrieved by the aforesaid order dated 17.8.2012 passed by the learned trial court, has preferred the present revision application under Section 397 and 401 Cr.P.C., questioning the correctness, validity and propriety of the impugned order. 5. It would be relevant to mention here that opposite Patna High Court CR. REV. No.1030 of 2012 (5) dt.18-12-2012 4 / 16 4 party nos. 1 to 4 have suo motu appeared through their respective counsels and have resisted the prayer made on behalf of the State of Bihar in the present proceeding. It would further be relevant to mention here that on 6.11.2012 when this matter was heard for some time, learned counsel appearing on behalf of the petitioner as also the opposite parties agreed that the lower court records are not required to be called for, for disposal of the present proceeding, as the depositions of all the witnesses have already been brought on the record by the petitioner. In the aforesaid circumstances, the matter was finally heard at great length and arguments were concluded from both sides on 26.11.2012, and order was reserved. 6. learned counsel appearing on behalf of the petitioner has assailed the validity and correctness of the impugned order passe

Applicable IPC Section: 436

Statute Text:
Section 436 of the Indian Penal Code. Mischief by fire or explosive substance with intent to destroy house etc. Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.