IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50579 of 2006 KAMAL KISHORE GUPTA, son of late Baisakh Sah, resident of village Chandrahi, P.S.-Dhamdaha, District-Purnia------Petitioner. Versus 1. STATE OF BIHAR 2. Ajay Kumar Sah, son of Shri Sukhdeo Sah, resident of village Kharakpur, P.S.Sonbarsa Kachahari, District-Purnia----------------------Opp. Parties. ----------- For the petitioner : Mr. Arun Pd. Ambastha, Advocate For the State : Mr. Gopesh Kumar, Advocate -------------------- 4. 25.3.2009 Heard the parties. Husband of Nirmala Devi, who is the complainant, lodged the F.I.R. apprehending his mother-in-law’s share grabbed by some of her co-sharers. His mother-in-law, Lachho Devi, is the wife of late Gulab Chand Sah, who had four brothers. Submission of the learned counsel for the petitioner is that he has been made accused having no act against the interest of Lachcho Devi. Only apprehension has been shown in the complaint petition which was sent under section 156(3) of the Code of Criminal Procedure and F.I.R. no.68 of 2004 was registered. Some acts of misbehaviour were found in course of investigation by the Investigating Officer. For submitting chargesheet no material was found available by the Investigating Officer and accordingly, final form was submitted. Even then cognizance is taken for the offence under sections 323 and 352 of the Indian Penal Code basing a protest later submitted by the complainant but according to the learned counsel, neither the complainant nor the court was having power to travel beyond the allegation leveled in the original complaint petition. - 2 - No presumption can work for constituting any offence which is not alleged originally that is conceded by the learned A.P.P. also. After going through the whole complaint petition it is apparent that only offence which could be committed or apprehended was for the offence under sections 420, 467, 468, 504 and 441 of the Indian Penal Code that was also only basing the apprehension and no document ever created or instituted rather a Partition Suit , which is pending, was filed on behalf of complainant’s wife and the court is there to decide the share of the sharers. Thus, I find it a fit case in which prosecution lodged against the petitioner should not be left to be continued. This petition is allowed and both the impugned orders are quashed. This application is accordingly disposed of. Sudip ( Mandhata Singh, J )