The Magistrate cannot add or subtract charges at the cognizance stage in a case based on police reports; such amendments are only proper during the framing of charges.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the entire criminal proceeding in connection with Raneshwar P.S. Case No.38 of 2022 corresponding to G.R. Case No.227 of 2023 including the order taking cognizance dated 18.03.2023 passed by learned Judicial Magistrate-1st Class, Dumka whereby and where under the learned Judicial Magistrate-1st Class, Dumka has taken cognizance of the offences punishable under Sections 341, 325, 354, 504/34 of the Indian Penal Code against the petitioners on the basis of the charge sheet submitted by the police.

3. The allegation against the petitioners is that the petitioners in furtherance of common intention with the co-accused persons entered into the shop of the informant lady, dragged her outside her shop, beat her up with heavy stone, causing grievous hurt, outraged her modesty, wrongfully restrained her and intentionally insulted her with intent to provoke her to commit breach of peace.

4. On the basis of the written report submitted by the informant, police registered Raneshwar P.S. Case No.38 of 2022 and took up investigation of the case and after completion of the investigation submitted charge sheet against the petitioners for having committed the said offences and on the basis of the said charge sheet, the learned Judicial Magistrate-1st Class, Dumka has taken cognizance of the offences as already indicated above in this judgement and passed the summoning order.

5. Learned counsel for the petitioners submit that the allegation against the petitioners is false and there is land dispute between the parties. It is next submitted that the injuries sustained are simple in nature, hence, it is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.

6. Learned P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in the instant Cr.M.P and submit that it is a settled principle of law if a case is made out on the basis of the police report, the Magistrate, at the time of taking cognizance cannot add or subtract a section because the same would be permissible by the trial court only at the time of framing of charge. It is next submitted that the undisputed facts remains that the petitioners caused hurt to the informant by beating her with heavy stone on her head besides beating her all over her body with kicks and fists by which she sustained injury and in the process outraged her modesty, wrongfully restrained her and intentionally insulted her to provoke breach of peace and police after investigation of the case found the allegations to be true. It is lastly submitted that this Cr.M.P., being without any merit, be dismissed.

7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde , (2014) 3 SCC 659 paragraph-15 of which reads as under:-

“15. The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in