Allahabad High Court
Ambrish Kumar @ Ambrish Kumar ... vs State Of U.P. Thru.Prin.Secy. ... on 24 January, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- APPLICATION U/S 482 No. - 691 of 2023
Applicant :- Ambrish Kumar @ Ambrish Kumar Gupta
Opposite Party :- State Of U.P. Thru.Prin.Secy. Home Dpett. And Another
Counsel for Applicant :- Arvind Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
In view of the order proposed to be passed, the issuance of notice to opposite party no. 2 is dispensed with.
Heard learned counsel for the applicant, Sri Anirudh Kumar Singh, learned A.G.A. for the State and perused the record.
Instant application under section 482 Cr.P.C. has been filed with prayer to quash the summoning order dated 27-07-2022 passed by Judicial Magistrate, Court No. 9, Bahraich, in Case No. 13345/2022, State Vs. Ambrish Kumar Gupta and Others, arising out of Case Crime No. 275/2020, under sections 419, 420, 406 I.P.C., Police Station-Ramgaon, District-Bahraich, by which summoning order has been issued against the applicant.
Learned counsel appearing for the applicant submits that the applicant is innocent and has falsely been implicated in the instant case. He next added that after the investigation, the chargesheet was filed against the present applicant under sections 419 & 420 of the I.P.C. which is evident from copy of the chargesheet, annexed at page 31 of the instant application. He next added that thereafter, learned Magistrate has taken cognizance and has passed the summoning order on 27-07-2021, wherein the section 406 of I.P.C. has been added and the present applicant has been summoned under sections 419,420 & 406 of I.P.C. He submits that learned trial court at the stage of issuance of summons cannot add or subtract sections to the sections under which the chargesheet has been filed and thus, he submits that the summoning order 27-07-2022 vitiates in the eyes of law.
In support of his contentions, he has placed reliance on the Judgment reported in 2013, AIR SCW 6728; State of Gujarat Vs. Girish Radhakrishnan Varde and has referred paragraph 17 of the aforesaid Judgment, which is extracted hereinunder :-
"17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or substraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual observation by recording that the Trial Court at the appropriate stage will have the power to determine as to which provision is to be applied before the matter is finally sent for trial. The fall out of the Order of the High Court is that the prosecution represented by the appellant -State of Gujarat might be rendered remedy less as setting aside of the order of the Magistrate is likely to give rise to a situation where the prosecution would be left with no remedy for rectification or appreciation of the plea as to whether inclusion or exclusion of additional charges could be permitted. In fact, while upholding the order of the learned Additional District & Sessions Judge, the High Court has further overlooked the fact that the Additional District & Sessions Judge before whom revision was filed against the order of the Chief Judicial Magistrate, could have allowed the revision on the ground of erroneous exercise of jurisdiction by the Chief Judicial Magistrate who permitted to add three more Sections into the chargesheet. But the Additional District & Sessions Judge instead of doing so has straightway quashed the order passed by the Magistrate instead of confining itself to consideration of the question regarding error of jurisdiction and laying down the correct course to be adopted by the magistrate. In fact, the correct course of action should have been laid down by the High Court as also the learned Additional District & Sessions Judge by permitting the appellant ? State of Gujarat to raise the question of addition of charges at the time of framing of charge under Section 228 of the Cr. P.C. and should not have passed a blanket order setting aside the order of the Magistrate without laying down the correct course of action to be adopted by the affected parties with the result that three orders came to be passed by the Chief Judicial Magistrate, Additional District & Sessions Judge and the learned Single Judge of the High Court, yet it could not resolve the controversy by highlighting the appropriate course of action to be adopted by the prosecution-State of Gujarat as also the magistrate which permitted addition of sections after submission of chargesheet missing out that the matter did not arise out of a complaint case lodged before the magistrate but a case which arose out of a police report/FIR in a Police Station. "
Referring the aforesaid, he submits that it has categorically been held by the Apex Court in the aforesaid Judgment that the sections can be subtracted or added at the correct stage that is at the time of framing of charges. He submits that at the time of issuing summons, learned trial court has erroneously and unlawfully added section 406 of I.P.C. and has summoned the accused-applicant in added section also and thus, the summoning order assails illegality and perversity and therefore, is liable to be set aside.
On the other hand, learned A.G.A. appearing for the State has opposed the contentions aforesaid and submits that the matter was thoroughly investigated and after investigation,chargesheet was filed in the case and thereafter, the present applicant has been summoned and thus, there is no perversity or illegality in the order passed by the trial court and and the instant application is liable to be dismissed.
Considering the submissions of learned counsel for the parties and after perusal of the material placed on record, it is evident that it is settled proposition of law that the sections can be added or subtracted at the level of framing of charges and prior to that the same cannot be done. The Apex Court has also held in the case of State of Gujrat Vs. Girish Radhakrishnan Varde(Supra) that correct stage for addition or subtraction of the sections is framing of charges and prior to this, the charges cannot be altered.
In view of the law laid down by the Apex Court, the summoning order is prima-facie, unlawful and erroneous and thus, the summoning order dated 27-07-2022 is hereby set aside so far as it relates to the present applicant.
The matter is remitted back to the trial court to pass a fresh order in accordance with law.
With the aforesaid observations/directions, instant application is allowed.
Order Date :- 24.1.2023/AKS
