IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25867 of 2007 RADHA MOHAN SHARMA & ORS Versus STATE OF BIHAR & ANR ----------- For the petitioners : Mr. Pushkar Narain Shahi, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : M/s Ajay Kumar Thakur, Imteyaz Ahmad and Amir Alam, Advocates. O R D E R The petitioners seek the quashing of order dated 26.4.2007 passed by Sri Bipin Dutta Pathak, 1st Additional Sessions Judge, Nalanda at Biharsharif, in Criminal Revision No. 300 of 2006 whereby he has dismissed the revision preferred by the petitioners against the order dated 21.9.2006 passed in Chandi P.S. Case No. 230 of 2003, G.R. 945 of 2003 whereunder he had allowed the petition filed by the informant under section 259 Cr.P.C. for adding the charges under sections 379, 411 and 354 I.P.C. One Ram Nandan Raut, impleaded as O.P. No. 2 herein, submitted a written report on 26.9.2003 stating inter alia that he for over 20 years was in possession of 1 katha of gairmazarua land near his house whereupon stood several fruit bearing trees and some ten years ago he had also started a brick kiln thereupon. It is alleged that at about 9 A.M. that day all the F.I.R. named accused variously armed with lathi, bhala, kata arrived and cut and took away the fruit bearing trees and also - 2 - removed bricks from the kiln. When the informant remonstrated he was threatened with the arms whereupon he fled out of fear. It is further alleged that Saroj Devi, his wife who had also accompanied him was caught hold of by the accused who with bad intentions threw her on to the ground and molested and abused her and also assaulted her with slaps and kicks. The occurrence is said to have been seen by several persons including Mahendra Raut, Ramashish Raut and Ram Bilas Raut. On the basis of the said written report the aforesaid Chandi P.S. Case was registered under sections 447, 341, 323, 379, 427, 354, 504/34 I.P.C. and after investigation a chargesheet was submitted only under sections 341, 327, 504, 427/34 I.P.C. and charges were framed thereunder against the petitioners. It appears that after 8 witnesses on behalf of the prosecution had been examined at the trial, a petition came to be filed by the informant with a prayer to frame additional charges under sections 379, 411 and 354 I.P.C. against the accused as the evidence adduced so far warranted such action as also to convert the case from a summons case to a warrant case. The learned Magistrate after hearing the parties and for what palpably appear to be cogent reasons mentioned in his speaking order allowed the prayer. The criminal revision preferred thereagainst by the - 3 - aggrieved accused was dismissed by the Sessions Court. As before the revisional Court so before me, manifold contentions were sought to be raised which broadly summarized are that no cognizance having been taken under these sections charges could not be framed thereunder, that with independent and competent witnesses not supporting the claim of the informant that the place of occurrence land was in his possession or that the said gairmazarua land was ever allotted to him a case of theft could not have been made out and the absurd and improbable accusations of one of the accused displaying his private parts to the informant’s wife and that too in the presence of his father were propositions of fantasy and the Courts below appear to have not applied their mind to the materials available on the record judicially and had passed orders mechanically without appreciating the evidence available on record. Sub section (1) of section 216 Cr.P.C. provides that any Court may alter or add to any charge at anytime before judgment is pronounced and in such event the Court has to proceed in accordance with provisions of section 217 Cr.P.C. That apart section 259 Cr.P.C. provides that when in the course of the trial of a summons case relating to an offence punishable with imprisonment for a term exceeding six months, - 4 - it appears to the Magistrate that in the interest of justice, the offence should be tried in accordance with the procedure for the trial of warrant cases, such Magistrate may proceed to re-hear the case in the manner provided by this Code for the trial of warrant cases and may recall any witness who may have been examined. As stated earlier, charges were framed under sections 341, 327, 504, 427/34 I.P.C. of whom sections 327, 504 and 427 I.P.C. provide for punishment of imprisonment for a term exceeding six months. In that view of the matter the learned Magistrate was within his rights to convert the summons case into a warrant case and no fault can be found therewith. So far the question of addition of charges is concerned, it appears from the facts mentioned in the two impugned orders that offences under sections 379, 411 and 354 I.P.C. prima facie do appear to have been made out as witnesses have deposed in support thereof. The seizure list also indicates that branches of the trees belonging to the informant were recovered from the premises of one of the accused. The defence regarding ownership will be judged in the trial. The defence will get the benefit if they are able to prove their title and possession over the land in question. In view of the discussions made above, I find no - 5 - apparent illegality or irregularity with the orders of the two Courts below so as to interfere therewith. This application is accordingly dismissed. The Patna High Court The 31st July, 2008 Spd/ A.F.R. (Abhijit Sinha, J.)