( 2025:JHHC:38713 ) 1 Cr.M.P. No.958 of 2024 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 958 of 2024 1. Saryu Prasad Verma, Aged about 50 years, Son of Late Gandoari Mahto, Resident of Village –Badki Dhanrai, P.O. & P.S. –Jainagar, District -Koderma. 2. Dhaneshwar Thakur, Aged about 54 years, Son of Chhatu Thakur, Resident of Village –Badki Dhanrai, P.O. & P.S. –Jainagar, District – Koderma. .... Petitioners Versus The State of Jharkhand …. Opp. Party P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners : Mr. Sanjay Kr. Pandey, Advocate : Mr. Anurag Kumar, Advocate For the State : Mr. Abhay Kr. Tiwari, Addl. P.P. ….. By the Court:- 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 order dated 12.04.2023 by which the learned S.D.J.M., Koderma has taken cognizance of the offences punishable under Section 341, 323, 325, 353, 504, 506 & 34 in connection with Jainagar (T.O.P) P.S. Case No. 236 of 2021. 3. It is submitted by the learned counsel for the petitioners that charge has not yet been framed against the petitioners and trial of the case is yet to begin. ( 2025:JHHC:38713 ) 2 Cr.M.P. No.958 of 2024 4. The allegation against the petitioners is that the petitioners in furtherance of common intention with the co-accused persons used criminal force and deterred the public servant –police officer from discharging his duties by abusing him, causing hurt to the informant by dashing him with the motorcycle; by which the informant fell down and sustained injuries and assaulting the informant with kicks of legs and intentionally insulted the informant provoking him to cause breach of peace and criminally intimidated him, wrongfully restrained the informant, causing grievous hurt and also committed theft of mobile and Rs.1,100/- cash. On the basis of the written report submitted by the informant police registered Jainagar (TOP) P.S. Case No. 236 of 2021 and took up investigation of the case and after completion of the investigation finding the allegation against the petitioners to be true, police submitted charge sheet against the petitioners for having committed the offences punishable under Section 341, 323, 325, 353, 504, 506 & 34 of the Indian Penal Code. 5. It is submitted by the learned counsel for the petitioners that the offence punishable under Section 353 of the Indian Penal Code is not made out against the petitioners as the informant was not on duty at the time of the occurrence. Hence, it is submitted that the prayer as prayed for by the petitioners in this criminal miscellaneous petition be allowed. 6. The learned Addl. P.P. on the other hand vehemently opposes the prayer as prayed for by the petitioners in this criminal ( 2025:JHHC:38713 ) 3 Cr.M.P. No.958 of 2024 miscellaneous petition and submits that the only contention of the petitioners that one of the offences punishable under Section 353 of the Indian Penal Code is not made out against the petitioners and for that they want that the entire criminal proceeding be quashed and set aside, which prayer of the petitioner is illogical and without any merit. It is next submitted that a Magistrate cannot add or subtract any Section at the time of taking cognizance basing upon the police report. Hence, no illegality has been committed by the learned S.D.J.M., Koderma as admittedly offences other than Section 353 of the Indian Penal Code in respect of which cognizance has been taken by the learned S.D.J.M., Koderma is made out against the petitioners. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after 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 v. Girish Radhakrishnan Varde, reported in (2014) 3 SCC 659, para -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 the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the ( 2025:JHHC:38713 ) 4 Cr.M.P. No.958 of 2024 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 charge-sheet.” (Emphasis supplied) Wherein the Hon’ble Supreme Court of India has categorically laid down the law that 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, the Magistrate before whom the matter comes up for taking cognizance after submission of the charge sheet cannot fill up the lacunae and 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 Cr.P.C as the case may be. ( 2025:JHHC:38713 ) 5 Cr.M.P. No.958 of 2024 8. Now coming to the facts of the case, the undisputed fact remains that except the offence punishable under Section 353 of the Indian Penal Code, other offences in respect of which cognizance has been taken by the learned S.D.J.M., Koderma are made out against the petitioners based on the materials in the record. 9. In view of the principle of law settled by the Hon’ble Supreme Court of India in the case of State of Gujarat v. Girish Radhakrishnan Varde (supra), certainly the Magistrate was not entitled to add or subtract any penal provision of law other than the one in respect of which charge sheet has been submitted against the petitioners. Under such circumstances, this Court is of the considered view that no illegality has been committed by the learned S.D.J.M., Koderma in passing the impugned order. 10. Accordingly, this criminal miscellaneous petition being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 16th December, 2025 AFR/Sonu-Gunjan/- Uploaded on 03/01/2026