Surya Kant Tiwary Alias Surya Kant Tiwari Vs the State of Jharkhand

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[ 2025:JHHC:34553]

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 813 of 2022

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Surya Kant Tiwary @ Surya Kant Tiwari, aged about 46 years son of Bindhyachal Tiwari @ Vindhyachal Tiwary, residence of village:-Khalari Bazar Tand, P.O.& P.S.Khalari, District- Ranchi,

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Vishnu Shankar Mishra aged about 34 years, son of Late Ranjit Mishra, residence of village- Mahabir Nagar, Station Road, Khalari, P.O. & P.S.- Khalari, DistrictRanchi,

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Vishal aged about 39 years, son of Siya Sharan Tiwari, resident of Astha Puram, Dubey Colony, Kathitand, P.O. & P.S.- Ratu, District-Ranchi,

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Parmanand Prasad,aged about 60 years, son of Late Kamal Sah, residence of village- Hesalong, P.O. & P.S.Macluskiganj, District-Ranchi. ...... Petitioners

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Versus

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The State of Jharkhand ….. Opposite Party

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With

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Cr.M.P. No. 1249 of 2022

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Imtiyaz Alam aged about 42 years son of Late Abdul Majid, residence of village: Charchom, P.O. & P.S.Rajrappa, District-Ramgarh,

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Satyendra Dubey aged about 42 years, son of Late Barneshwar Dubey, residence of village- Dasimao, P.O. & P.S.- Nawanagar, District-Buxer, Bihar,

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Prabhu Munda aged about 47 years, son of Late Surja Munda, resident of village- Barkakana, P.O. & P.S.Patratu, District- Ranchi,

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Umesh Kumar Yadav aged about 35 years, son of Late Laldev Yadav, residence of village- Muripiri, P.O. & P.S.- Budhmu, District-Ranchi. ...... Petitioners Versus

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The State of Jharkhand ….. Opposite Party

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For the Petitioners:Mr. Jitendra Shankar Singh, Adv. For the State : Ms. Vandana Bharti, Addl. PP

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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Cr.M.P. No. 813 of 2022 with Cr.M.P. No. 1249 of 2022

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[ 2025:JHHC:34553]

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Both these criminal miscellaneous petitions have been filed in respect of the orders passed in the same case i.e. Pakuria P.S. case no. 46 of 2020, hence, both these criminal miscellaneous petitions are being disposed of by this common judgment.

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These criminal miscellaneous petitions have been filed invoking the jurisdiction of this Court under Section 482 of CrPC with the prayer of quashing the entire criminal proceeding in connection with Pakuria P.S. case no. 46 of 2020 as well as the order dated 17.08.2021 passed by learned JMFC, Pakur arising out of the said case.

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The brief fact of the case is that Pakuria P.S. case no. 46 of 2020 was registered alleging therein that the petitioners were involved in the offence of cheating, committing theft of coal and assisting in concealment and disposal of the stolen property. Police on the basis of the written report submitted by the officer-in-charge of Pakuria Police Station, registered Pakuria P.S. case no. 46 of 2020 and submitted chargesheet; basing upon which, G.R. case no. 70 of 2021 was registered and the learned JMFC, Pakur, though the chargesheet was submitted only for the offence punishable under Section 379, 414, 420, 34 of IPC, has added the offence punishable under Section 42 of the Indian Forest Act, 1927, read with Section 18 of Jharkhand Forest Produce (Regulation of Transportation) Rules, 2020 and took cognizance of the offences vide order dated 25.01.2021 in Pakuria P.S. case no. 46 of 2020 corresponding to G.R. case no. 70 of 2021 for which, the chargesheet, was submitted and the said offence which were added by learned Magistrate and passed the summoning orders in respect of the petitioners of CrMP no. 1249 of 2022. Subsequently, supplementary chargesheet was also filed in the said Pakuria P.S. case no. 46 of 2020 and basing upon the same, G.R. case no. 383 of 2021 was registered and vide order dated 17.08.2021 in connection with Pakuria P.S. case no. 46 of 2020 corresponding to G.R. case no. 383 of 2021, learned JMFC, Pakur observed that the sufficient material is available to proceed against the petitioners of CrMP

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Cr.M.P. No. 813 of 2022 with Cr.M.P. No. 1249 of 2022

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[ 2025:JHHC:34553]

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No. 813 of 2022 for having committed all the said offences and passed the summoning orders in respect of the petitioners of CrMP no. 813 of 2022.

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It is submitted by learned counsel for the petitioners that the allegations against the petitioners are false and learned JMFC, Pakur ought not have taken cognizance of the offences for which charge sheet was not submitted, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed.

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Learned Addl. PP on the other hand vehemently opposes the prayer of the petitioners and submits that there are sufficient material available in the record to constitute the offences punishable under Section 42 of the Indian Forest Act, 1927, read with Rule 18 Jharkhand Forest Produce (Regulation of Transportation) Rules, 2020, hence, no illegality has been committed by learned JMFC, Pakur. It is lastly submitted that this Criminal Miscellaneous Petition being without any merit, be dismissed.

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Having heard the submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that it is a settled principle of law that if the Investigating Officer, for any reason, whatsoever, have left all the offences to be included in the charge sheet, on the basis of the FIR, basing upon which, the investigation has been concluded, learned Magistrate before whom the matter comes up for taking cognizance after submission of the charge sheet, cannot fill the lacuna and the Magistrate in a case, which is based on police case, cannot add or subtract any section of any offence, at the time of taking cognizance, as the same would be permissible to the trial court only at the time of framing of charge under Section 216, 218 or under Section 228 of CrPC and the only remedy available to the prosecution after submission of the charge sheet is to contend before the appropriate trial court at the stage of framing of charge to establish that on the given set of facts and circumstances, the charge which according to the prosecution should be framed, can

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Cr.M.P. No. 813 of 2022 with Cr.M.P. No. 1249 of 2022

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[ 2025:JHHC:34553]

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be allowed to be framed, as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659, para 15 of which reads as under (CrMP 859 of 2025)

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“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 the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.” (Emphasis supplied)

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Keeping in view the settled principle of law, this court has no hesitation in holding that the learned JMFC, Pakur has exceeded its jurisdiction in taking the cognizance of the offence punishable under Section 42 of the Indian Forest Act, 1927 read with read with Rule 18 Jharkhand Forest Produce (Regulation of Transportation) Rules, 2020, as charge sheet was not submitted for the said offences. Accordingly, the impugned order dated 25.01.2021 in Pakuria P.S. case no. 46 of 2020 corresponding to G.R. case no. 70 of 2021 and the order dated 17.08.2021 in connection with Pakuria P.S. case no. 46 of 2020 corresponding to G.R. case no. 383 of 2021, is modified by deleting the offences punishable under Sections 42 of the Indian Forest Act 1927 read with read with Rule 18 Jharkhand Forest Produce (Regulation of Transportation) Rules, 2020, with the rider that the trial court at

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Cr.M.P. No. 813 of 2022 with Cr.M.P. No. 1249 of 2022

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time of consideration for framing of charge, will take a call as to whether the said offences are made out or not.

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