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Ingredients of Dacoity

(Querist) 17 January 2009 This query is : Resolved 
In a private complaint alleging an offence punishable u/s 395 of I.P.C. is committed by six accused persons; the magistrate issued process u/s 380, 341, 323, 504, 506 r/w 34 of I.P.C. and not u/s 395. Accused persons have given their appearance in the case and the matter is fixed for Evidence Before Charge. I am of the opinion that all the ingredients of secs. 380, 341, 323,34 are sufficient to constitute the offence of Dacoity punishable u/s 395. Now I want to move an application on behalf of the complainant to alter the Charge which can be alter at any stage of proceding. The questions is can I apply for alteration of charge before the stage of E.B.C.?
AEJAZ AHMED (Expert) 18 January 2009
Dear Zainuddin,

It is a case, on the basis of your Private Complaint,after taking cognizance, magistrate issued process to the Accused. Its your's case as you are the Complainant, you can file any Criminal Petition at any Stage of the Case, so exactly, you can move a petition for "Alteration of Charges" before the said stage.

But, Mr.Shaik, when you filed a "PRIVATE COMPLAINT" before the Magistrate with the allegations for the Offence "U/S.395 OF IPC", why there is the issuance of the Process on the Accused for the Offences U/S.380, 341, 323, 504, 506 r/w 34 of I.P.C. ?

It is showing that, the "Facts/Contents" of your "Complaint" itself could not established the alleged offence "U/S.395 OF IPC". Thats why the Hon'ble Magistrate issued the process as above.

But, now you want to alter the charges, so please crefully go through the contents of your complaint and try to file petition as required by you.

Kindly, go through my file " Dacoity & Robbery", which I am going to post in FILES.

Jainodin shaikh (Querist) 18 January 2009
Thanks Mr Aezaz for the replay
According to me DACOITY means Robbery committed by five or more persons.
ROBBERY means use of criminal force or restrainig wrongfuly a person while committing THEFT.
THEFT means dishonest removal of movable property without the consent of other person.
In other words, sec. 380 + sec. 341 or 323 + 6 accused persons = DACOITY.
My story is that 6 persons wrongfuly abstructed the complainant when he was going to market, 2 person hold him and 1 snatch rupees 7000 from his pocket. He resisted them to which all the accused persons started to beat him.
The magistrate opined that there was NO INTENTION hence sec.395 or 392 not applicable.
PALNITKAR V.V. (Expert) 26 January 2009
At any rate once the process is issued for different sections the only remedy is to lead evidence before charge or to file revision if within limitation.I dont think that law permits filing of application for alteration of charge at any stage before charge in a private complaint after process is issued. If such a course is allowed that will tantamount to review which is not permissible. Secondly, 380+341 or 323+6 accused does not necessarily amount to 395. it all depends on facts of the case. It is probable that in your case that equation may be correct! But it is not always like that.
Jainodin shaikh (Querist) 28 January 2009
Thank Mr. Palnitkar! I am also of the openion that framing of CHARGE in a private complaint is CONTINGENT stage which may not took place if the complainant fails to prove his case. Charge can only be altered when there is certainty about faming of charge. What the other experts thinks about it?
PALNITKAR V.V. (Expert) 11 February 2009
Other experts seem to not interested in expressing their views. I think the query should be treated as resolved.


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