IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55854 of 2006 1. SUKHDEO BHAGAT. 2. RAMJEE BHAGAT. BOTH SONS OF LATE SAGAR BHAGAT. 3. FANTUSH BHAGAT @ FANTUSH KUMAR. 4. PANKAJ BHAGAT. BOTH SONS OF RAMJEE BHAGAT. 5. BHARAT KUMAR @ BHARAT BHAGAT. 6. SURAJ BHAGAT @ SAROJ KUMAR, BOTH SONS OF SUKHDEO BHAGAT. ALL RESIDENT OF VILLAGE-KAMALPUR, P.S. AND DISTRICT-KHAGARIA. 7. SHANKAR CHAURASIA, SON OF LATE BRAHMDEO CHAURASIA, RESIDENT OF VILLAGE-BAISE(MARAIYA), P.S. PARWATTA, DISTRICT-KHAGARIA. ……………………………………………………..PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. BIJO MOCHI, SON OF LATE SOMAN MOCHI, RESIDENT OF VILLAGE-KAMALPUR, P.S. AND DISTRICT-KHAGARIA. ………………………………………………….OPPOSITE PARTIES. ----------- For the Petitioners : Mr. Ranjeet Kumar Singh No.2, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : None. ------------ O R D E R The F.I.R. named accused of G.R. No.1085 of 2000, Begusarai Town(Harijan) P.S. Case No.7 of 2000, arising out of Complaint Case No.410(C) of 2000 through this application have prayed for the quashing of the order dated 2.11.2006 passed in Criminal Revision No.50 of 2006 by the learned Presiding Judge, Fast Track Court No.V, Khagaria, whereby while allowing the said revision filed by the informant , he has set aside the order dated 24.3.2006 passed by the learned Sub Divisional Judicial Magistrate, - 2 - Khagaria in the aforesaid police case. By the said order, the learned Magistrate rejected the petition under Section 216 Cr.P.C. filed by the prosecution for addition of charge under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as “the SC/ST Act”). One Bijo Mochi, who was subsequently upon his death, substituted by his wife Alkhi Devi, impleaded herein as O.P. No.2, filed the aforesaid complaint, inter alia, alleging commission of offences under Sections 323, 427, 379 I.P.C. and Sections 3(1)(x)(xv) of the SC/ST Act at the hands of the petitioners on 19.6.2000 at around 9 A.M. The said complaint was transmitted to the concerned police station under Section 156(3) Cr.P.C. on the basis whereof the aforesaid P.S. Case was registered under Sections 147, 341, 323, 379 and 427 I.P.C. as also Sections 3(1) (x) of the SC/ST Act. According to the informant all the accused on the appointed date variously armed with lathi and iron rods came to his house and accused Sukhdeo Bhagat ordered for the accused to enter into the house of “the Chamarwa” and having dragged out the womenfolk to demolish his house. It is also alleged that all the accused thereafter started beating with their lathies and dandas on the roof of the house of as a result whereof the tiles (khapra) of the roof was damaged causing a financial loss of Rs.250/-. It is further alleged that when the informant remonstrated all the accused assaulted the informant with lathi and iron rods felling him to the ground. It is also alleged that with the arrival of the people of the neighbourhood the accused - 3 - persons took away a piece of log worth Rs.1000/-. It is said that the informant got himself treated at the Government Hospital, Khagaria, and gave a fardbeyan before the police which not having been forwarded to the court he was compelled to file the instant complaint. The motive behind the occurrence is said to be the fact that the informant had been living in his khatiyani land and had filed an appeal before the Collector regarding the adjacent gair mazarua lands in respect of settlement thereof and the accused persons aggrieved thereby were bent upon dispossessing the informant from his lands. It appears that after due investigation the police submitted a chargesheet under Sections 341, 323 and 427 I.P.C. whereunder cognizance was taken and charges were also framed thereunder. It further appears that after six witnesses had been examined by the prosecution at the trial, after a lapse of about 5 years, a petition under Section 216 Cr.P.C. was filed on behalf of the informant on 25.7.2005 praying therein that an additional charge under Section 3(1)(v)(x)(xi) of the SC/ST Act be framed as sufficient materials in respect of offences thereunder had cropped up from the evidence of the witnesses. Having considered the submissions of the parties, the learned Magistrate was pleased to dismiss the same. Aggrieved thereby the informant took the matter in Criminal Revision No.50 of 2006 before the Sessions Court and the learned Presiding Judge, Fast Track Court No.V, Khagaria, by the impugned order was pleased to set aside the same. - 4 - It has been submitted on behalf of the petitioner that the petition filed by the informant under Section 216 Cr.P.C. was unwarranted as he had no locus standi to file such a petition when the prosecution was being pursued by the State. It was further submitted that from the evidence of the witnesses examined at the trial there does not appear to be any evidence to show that the offences under the various Sections of the SC/ST Act had been committed and the learned Revisional Court under a misnomer had set aside the order of the learned Magistrate. I have perused the relevant orders passed by the learned Magistrate as also the learned Presiding Judge, Fast Track Court No.V, Khagaria. It appears from the order of the learned Magistrate that he rejected the petition on the ground that from the evidence of the witnesses it did not come to light that the alleged occurrence had taken place in public view. However, the learned Revisional Court set aside the order only after perusing the complaint petition which was the basis of the police case wherein apart from the allegation for offences under the Penal Code, the offences also under Section 3(1)(x) of the SC/ST Act were alleged. It further observed that the court while framing the charge was only required to see whether sufficient materials were available on record to proceed against the accused and not to weigh the same as is done at the trial. From the complaint petition, it does not appear that the alleged occurrence took place in public view nor there was any - 5 - statement to show that the womenfolk had indeed been dragged out of the house on the orders of Sukhdeo Bhagat. In absence of any evidence making out a case under the provisions of the SC/ST Act, the learned Magistrate had rightly dismissed the petition by a reasoned order. The Revisional Court while assigning reasons unfortunately has been remiss of the fact that there had been no allegation in the complaint petition which primarily is the basis of the order regarding the commission of offences under the SC/ST Act in public view or of the womenfolk having been dragged out of the house. That apart the Revisional Court has not taken care to mention what evidence had been led by the prosecution in respect of offences under the SC/ST Act so as to compel the court to frame charges thereunder. Admittedly, the wording of Section 216 Cr.P.C. does not limit, the time and charge can be altered or added and such alteration or addition in the charge can be made at any time during the course of the trial and before the judgment is pronounced but such addition or alteration can be made only if there were materials before it, either in the complaint or in the evidence to justify such action. Reliance in this connection may be made to the case of Harihar Chakravarty Vs. State (AIR 1954 SC 266). There being no materials available in the orders of the Revisional Court to show the commission of offences under the SC/ST Act and merely relying on the complaint petition where an allegation of offence under the SC/ST Act had been alleged is not sufficient to justify the orders of the Revisional Court. - 6 - In view of the discussions made above, I am of the opinion that the orders of the Revisional Court cannot be sustained in law and is required to be set aside. Accordingly, the order of the Revisional Court is set aside and the order of the learned Magistrate dated 24.3.2006 is restored and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th day of June, 2009. Pradeep Srivastava/A.F.R.