Allahabad High Court
Nirbhay Mishra And 4 Others vs State Of U.P. And Another on 21 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:58710
Reserved on :- 09.04.2025
Delivered on :- 21.04.2025
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 10815 of 2025
Applicant :- Nirbhay Mishra And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Brij Kishore Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Brij Kishore Pandey, learned counsel for the applicants and Sri Pankaj Saxena, learned A.G.A. for the State.
2. The present application has been filed to quash the cognizance order dated 14.02.2024 arising out of charge sheet dated 21.08.2023 in Case Crime No. 255/2023 u/s 498-A, 323, 504, 506 I.P.C. and ¾ D.P. Act, in respect of Nirbhay Mishra, Meera Mishra, Vishal Mishra and Indrawati Mishra and u/s 498-A, 323, 354, 354A, 504, 506 I.P.C. and ¾ D.P. Act against Suresh Mishra as well as entire proceeding of Case No. 200/2024 (State Vs. Nirbhay Mishra and others) u/s 498-A, 323, 354, 354A, 504, 506 I.P.C. and ¾ D.P. Act, Police Station- Cholapur, District- Varanasi, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Varanasi.
3. Facts giving rise to the present controversy are that an F.I.R. was lodged by opposite party no. 2 against the applicants u/s 498-A, 323, 504, 506, 376, 511 I.P.C. and ¾ of Dowry Prohibition Act on 09.06.2023 in Case Crime No. 255 of 2023. The police after investigation has submitted charge-sheet dated 21.08.2023 against the applicants u/s 498-A, 323, 504, 506 I.P.C. and ¾ Dowry Prohibition Act. Learned Magistrate on perusal of the material filed along with the charge-sheet has also taken cognizance u/s 354 and 354-A I.P.C. vide order dated 14.02.2024 which is under challenge in the present case.
4. Contention of learned counsel for the applicants is that once the charge-sheet u/s 498-A, 323, 504, 506 I.P.C. and ¾ Dowry Prohibition Act has been filed by the police after investigation, then the learned Magistrate has no jurisdiction to add or subtract any section in view of the law laid down in the judgement rendered by the Apex
Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659 but the Magistrate erroneously added Sections 354 and 354-A I.P.C. while passing cognizance order dated 14.02.2024 though these sections were not mentioned in the charge-sheet.
5. Per contra, learned A.G.A. has submitted that at the time of taking cognizance, Magistrate is not bound by the opinion of the Investigating Officer and he can independently apply its mind and also take cognizance for other offences if the material filed along with the police report prima facie make out those offences.
6. Considering the submissions of learned counsel for the parties and on perusal of record, so far as contention of learned counsel for the applicants that Magistrate at the time of taking cognizance, has no jurisdiction to add or subtract any section by taking cognizance on submitting charge-sheet, in view of the judgement of Girish Radhakrishnan Varde (supra), is misconceived because this Court in Application U/S 528 BNSS No. 44720 of 2024, Nisha Kushwaha Vs. State of U.P. and Another, that after taking into account the earlier judgement of Constitution Bench of Apex Court in the case of Dharam Pal and others Vs. State of Haryana and Another, (2014) 3 SCC 306 as well as earlier Division Bench judgment of Apex Court in the case of Pramatha Nath Mukherjee Vs. State of West Bengal, 1960 SCC Online SC 76, has observed that the Magistrate has jurisdiction to take cognizance of an offence on the basis of material available with the police report even though section of that offence has not been mentioned in the charge-sheet. Paragraph no. 22 of Nisha Kushwaha (supra) is being quoted as under:-
22. From the above analysis, it is clear that after receiving the police report, the Magistrate can exercise its power u/s 190(1)(b) Cr.P.C. and take cognizance of any offence against a person on the basis of material available in the police report without being influenced by the opinion of the Investigating Officer. This power of the Magistrate at the time of taking cognizance includes summoning the person who was not named as accused in the police report or taking cognizance of an offence under a particular section(s) even though that section has not been mentioned in the charge-sheet or dropping a section by not taking cognizance in that section on the ground that there is no material in the police report regarding that offence.
7. Apart from this, from the perusal of the statements of the victim recorded u/s 161 and 164 Cr.P.C., there is sufficient material making out prima facie offence u/s 354 and 354-A I.P.C. against applicant no. 3. Therefore, Magistrate has not committed any illegality by taking cognizance u/s 354 and 354-A I.P.C. against the applicant no. 3, Suresh Mishra. So far as other applicants are concerned, from the perusal of the statements of the victim recorded u/s 161 and 164 Cr.P.C., it is clear that there are specific allegations against applicant nos. 1 and 3. Therefore, this Court is not inclined to interfere at the instance of applicant nos.1 and 3. The present application is dismissed at the instance of applicant nos.1 and 3.
8. However, considering the general nature of allegations against applicant nos.2, 4 and 5 who are family members of applicant no.1, their matter requires consideration.
9. Issue notice to opposite party no.2 returnable at an early date.
10. List in the week commencing 11.08.2025.
11. Till the next date of listing, no coercive action shall be taken against the applicant nos.2, 4 and 5 in the aforesaid case.
12. However, the court below is free to proceed against applicant nos.1 and 3 on whose behalf this application has been dismissed.
Order Date :- 21.04.2025
KS
