Allahabad High Court

Gaurav Saini vs State Of U.P. And Another on 19 August, 2025

Author: Dinesh Pathak

Bench: Dinesh Pathak





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:140943
 
Court No. - 73
 

 
Case :- APPLICATION U/S 528 BNSS No. - 9374 of 2025
 

 
Applicant :- Gaurav Saini
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anurag Pathak,Harshit Pathak
 
Counsel for Opposite Party :- Avinash Pandey,Avinav Singh,G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard Shri Harshit Pathak, learned counsel for the applicant, Shri Avinash Pandey, learned counsel for respondent no.2 as well as learned A.G.A. for the State-respondent.

2. The applicant has invoked the inherent jurisdiction of this Court under Section 528 B.N.S.S. for quashing the entire criminal proceedings including charge-sheet dated 14.03.2024 as well as cognizance/summoning order dated 18.12.2024 passed by the Special Judge, S.C./S.T. Act, Saharanpur, in Special Trial No.2790 of 2024, arising out of Case Crime No.26 of 2024 under Sections 308, 323, 504, 506 I.P.C. and Section 3(2)(va) S.C./S.T. Act, Police Station Sadar Bazar, District Saharanpur.

3. As per F.I.R. version, the first informant is the student of Class XI. Some time ago, he had a dispute with Shantanu s/o Virendra over seating arrangement in the school. Since then, he is bearing enmity against him. On 11.01.2024, at about 2/3 p.m., after the school time, while he was walking back home on foot and reached near Little Columbus School, Shantanu and his accomplice surrounded him and beaten him up with stick, rods, iron rods and uttered caste based slur. They fled from the scene, after leaving the first informant in injured condition, while threatening to kill. Nearby people took the first informant to the police station, from where he was sent for medical examination.

4. The Investigating Officer, after completing the investigation, has submitted the charge-sheet dated 14.03.2024 arraigning the present applicant under Sections 323, 504, 506 I.P.C. and Section 3(2)(va) S.C./S.T. Act. It is apposite to mention that separate charge-sheet dated 13.03.2024 was filed for the co-accused Shantanu who was minor at that time. At the time of taking cognizance, public prosecutor has moved an application (Paper no.31-Ka) for taking cognizance in additional Section 308 I.P.C. on the basis of medical report. Learned Special Judge, S.C./S.T. Act, Saharanpur has allowed the application (Paper no.31-Ka) and taken cognizance under Section 308 as well, along with Sections 323, 504, 506 I.P.C. and Section 3(2)(va) S.C./S.T. Act, as mentioned in the charge-sheet, vide order dated 18.12.2024, which is under challenge before this Court.

5. Learned counsel for the applicant has advanced solitary submission, questioning the jurisdiction of learned Magistrate at the stage of taking cognizance, that the court concerned cannot add, delete or alter any sections while passing the cognizance order, other than those mentioned in the charge-sheet. In support of his submission, counsel for the applicant has placed reliance upon the judgment of the Hon'ble Apex Court in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659. He has also placed reliance upon the judgment passed by the Coordinate Bench of this Court in the case of Smt. Shalini Kashyap & Another vs. State of U.P. & Others, Application under Section 482 Cr.P.C. No.23830 of 2021, decided on 09.09.2022.

6. Per contra, learned counsel for respondent no.2 has vehemently opposed the submission advanced by learned counsel for the applicant and contended that in view of the ratio decided by the Constitution Bench of the Hon'ble Apex Court in the case of Dharampal & Others vs. State of Haryana & Another reported in 2014 (3) SCC 306, the Magistrate has ample power to take cognizance of any offence on the basis of the material collected by the Investigating Officer, during investigation, if he arrives at conclusion that any other offence is also made out in which charge-sheet has not been submitted then he can take cognizance of such offence, as well. Learned counsel for the respondent no.2 has also placed reliance upon the judgments passed by the Coordinate Bench of this Court in the case of Sadab vs. State of U.P. & Others reported in 2023 (4) ALJ 223 and in the case of Nisha Kushwaha vs. State of U.P. & Others, Application under Section 528 B.N.S.S. No.44720 of 2024 (MANU/U.P./0820/2025), decided on 21.04.2025. He has further contended that the Magistrate has rightly exercised the power, while taking the cognizance, to add section 308 I.P.C. Thus, instant application is liable to be dismissed being misconceived and devoid of merits.

7. Having considered the rival submissions advanced by learned counsel for the parties and upon perusal of record, it manifests that question for consideration in the instant matter lies in a narrow compass as to whether the Magistrate can add or subtract any section, other than those mentioned in the charge-sheet, at the time of taking the cognizance. In the matter at hand, charge-sheet has been submitted arraigning the present applicant under Sections 323, 504, 506 I.P.C. and Section 3(2)(va) S.C./S.T. Act. However, at the time of taking cognizance, the Magistrate has added Section 308 I.P.C. by allowing the application (Paper no.31-Ka) moved on behalf of the Public Prosecutor. Section 190 Cr.P.C. empowers the Magistrate to take cognizance of any offence in three contingencies, as enunciated under clause (a), (b) & (c) of Sub Section (1) of Section 190 Cr.P.C. Instant matter relates to Section 190 (1)(b) Cr.P.C., as a police report has been submitted arraigning the present applicant for trial. Question with regard to power of the Magistrate to add or subtract new sections at the time of passing the cognizance order has been elucidated by the Hon'ble Apex Court in the matter of State of Gujarat vs. Girish Radhakrishnan Varde (supra). The Hon'ble Apex Court has drawn a clear distinction between the registration of an F.I.R. at the police station under Section 154 Cr.P.C. and the complaint under Section 190(1)(a) Cr.P.C., and concluded that the Magistrate in a case, which is based on 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 charges under Section 216, 218 or under Section 228 Cr.P.C. Relevant paragraph nos. 13, 14, 15, 16 & 17 of the said judgment is quoted herein below :-

"13. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 of the Cr.P.C. and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII of the Cr.P.C. and thereafter charge-sheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the charge-sheet appears to have entertained an application of the complainant for addition of three other sections into the charge-sheet, completely missing that if it were a complaint case lodged by the complainant before the Magistrate under Section 190(1)(a) Cr.P.C., obviously the Magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the Magistrate thought it appropriate that other additional sections also were fit to be included, the magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate court.

14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190(1)(a) of the Cr.P.C. before the Magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the charge-sheet unless of course a complaint before the Magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the charge-sheet, the matter goes to the Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police.

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 offence 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 substract 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 of the Cr.P.C. 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.

16. In the alternative, if a case is based on a complaint lodged before the Magistrate under Sections 190 or 202 Cr.P.C., the Magistrate has been conferred with full authority and jurisdiction to conduct an enquiry into the complaint and thereafter arrive at a conclusion whether cognizance is fit to be taken on the basis of the sections mentioned in the complaint or further sections were to be added or subtracted. Cr.P.C. has clearly engrafted the two channels delineating the powers of the Magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conducts investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures.

17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapter XIV and XV, when it comes to application of the provisions of the Cr.P.C. in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which are to deal with a case based on a complaint before the magistrate and the police powers based on a police report/FIR has been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of Cr.P.C. The affected parties have to apprise themselves that if a case is registered under Section 154 Cr.P.C. by the police based on the FIR and the charge-sheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the charge-sheet, would be determined only at the time framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 Cr.P.C. clearly shall have to be followed."

8. So far as the ratio decided by the Constitution Bench of the Hon'ble Apex Court in the case of Dharampal & Others (supra), as relied upon by learned counsel for the respondent no.2 is concerned, I am of the view that the Apex Court has answered the questions which were referred before him by the three Judges Full Bench relating to the scope of Section 193 Cr.P.C. and power of the Magistrate to issue summons to those accused who are not arraigned in the charge-sheet to face trial. Six questions which were referred to the Constitution Bench, as mentioned in paragraph no.4, are quoted herein below :-

"4. The questions which require the consideration of the Constitution Bench are as follows:

i) Does the Committing Magistrate have any other role to play after committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session?

ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with Nafe Singh, to stand trial in connection with the case made out in the police report?

iii) Having decided to issue summons against the Appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure?

iv) Can the Session Judge issue summons under Section 193 Cr.P.C. as a Court of original jurisdiction?

v) Upon the case being committed to the Court of Session, could the Session Judge issue summons separately under Section 193 of the Code or would he have to wait till the stage under Section 319 of the Code was reached in order to take recourse thereto?

vi) Was Ranjit Singh's case (supra), which set aside the decision in Kishun Singh's case (supra), rightly decided or not?"

9. Answering to the aforesaid questions, the Hon'ble Apex Court has endorsed the view expressed in the case of Kishun Singh vs. State of Bihar reported in 1993 (2) SCC 16 and has held that the Magistrate has ample power to disagree with the final report that may be filed by the police authority under Section 173(3) Cr.P.C. and to proceed against the accused person dehors the police report. It has been further held that cognizance of an offence can only be taken once. Explaining the scope of Section 193 and 209 Cr.P.C., the Hon'ble Apex Court has held that the Sessions Court has jurisdiction on committal of a case to it, to take cognizance of the offence against the person not named in the charge-sheet on the basis of material available on the record to, prima facie, prove his complicity in the commission of crime. Relevant paragraph nos. 24, 25, 27 & 28 of the aforesaid judgment is quoted herein below :-

"24. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

25. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court.

27. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.

28. In that view of the matter, we have no hesitation in agreeing with the views expressed in Kishun Singh?s case (supra) that the Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal under Section 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein."

10. So far as the case of Sadab (supra) and Nisha Kushwaha (supra) relied upon by learned counsel for the respondent no.2 is concerned, I restrain myself to express any opinion on the aforesaid judgments except to observe that the judgment in the case of Dharampal (supra), relied upon by the Coordinate Bench of this Court in both the aforesaid judgments, was rendered on different points/questions which were referred before the Constitution Bench of Hon'ble Apex Court. An isolated reading or interpretation of a particular paragraph from the case of Dharampal (supra) decided by the Constitution Bench, may result in distorted understanding of the dictum, especially in the contest of the question referred to the Bench. Hon'ble The Constitution Bench has not expressed any opinion that the Magistrate can or cannot add, delete or alter any Section other than those mentioned in the charge-sheet at the stage of cognizance. The power of the Magistrate to summon the accused who has not been arraigned in the charge-sheet, to wit, against whom final/closer report under Section 173(2) Cr.P.C. has been submitted, and commit the case to the Court of Session under Section 209 Cr.P.C. and, thereafter, power of the Sessions Judge under Section 193 Cr.P.C., as defined by the Constitution Bench of the Hon'ble Apex Court, cannot be inferred in order to explain the jurisdiction of the Magistrate to add or subtract the sections other than sections which are mentioned in the charge-sheet, at the time of taking cognizance. The law laid down by the Hon'ble Apex Court in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra) still holds a law of land qua jurisdictional power of the Magistrate to add or subtract the sections at the time of taking cognizance. In the instant matter, issuing summons to the accused against whom final report has been submitted is not in question. Therefore, ratio decided by the Constitution Bench of the Apex Court in the matter of Dharampal (supra) is not supportive to the submissions advanced by learned counsel for respondent no.2. The Coordinate Benches of this Court, in cases of Sadab (supra) and Nisha Kushwaha (supra) respectively, have also placed reliance upon the judgment of Nahar Singh vs. State of U.P. & Another reported in (2022) 5 SCC 295 wherein the judgment of the Constitution Bench of the Hon'ble Apex Court in the case of Dharampal (supra) has been relied upon. Facts involved in the case of Nahar Singh (supra) is distinguishable from the case in hand. In the case of Nahar Singh (supra) as well, the Hon'ble Apex Court has held that the Magistrate, who takes cognizance of an offence on a police report under Section 190(1)(b) Cr.P.C. may issue process/summons to a person, not named in the F.I.R. and not arraigned as an accused in the charge-sheet, if the case diary/police papers contained, prima facie, material against such person. Cognizance is always take on the offence not of the particular offender; therefore, Section 319 Cr.P.C. is not the only root to proceed against an un-arraigned person. However, once the case is committed to the court of Sessions, fresh cognizance by the Magistrate is impermissible. The Magistrate or the Sessions Court, either of them can take cognizance, not both.

11. In the matter of Shalini Kashyap & Another (supra) relied upon by learned counsel for the applicants, two points were raised; first, with regard to the power of the Magistrate as to whether he can add or subtract any offence other than the offence for which the charge-sheet is filed and, second, as to whether the accused, who has not been arraigned in the charge-sheet can be summoned. First question has been answered by the Coordinate Bench of this Court in negative placing reliance upon the judgment of the Hon'ble Apex Court in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra) and, second, question was anwered in the affirmative in light of the ratio decided by the Constitution Bench of the Hon'ble Apex Court in the matter of Dharampal (supra).

12. In this conspectus, as above, I am of the considered opinion that the learned Special Judge, S.C.S.T. Act, has exceeded his jurisdiction by adding Section 308 I.P.C., which did not find place in the charge-sheet, at the time of taking the cognizance of offence. The prosecution has still an opportunity to move an application with intent to add, delete or subtract sections at the appropriate stage as held by the Hon'ble Apex Court in the matter of State of Gujarat vs. Girish Radhakrishnan Varde (supra). Taking cognizance under Section 308 I.P.C., which is not mentioned in the charge-sheet, amounts abuse of process of law, therefore, to secure the ends of justice, this Court has no hesitation to quash the order under challenge in exercise of its inherent jurisdiction under Section 528 B.N.S.S.

13. Resultantly, instant application under Section 528 B.N.S.S. succeeds and is allowed in part. Summoning order dated 18.12.2024 passed by the learned Special Judge, S.C./S.T. Act, Saharanpur in Sessions Trial No.2790 of 2024, arising out of Case Crime No.26 of 2024, is partly quashed, so far as it relates to taking the cognizance under Section 308 I.P.C. Order under challenge shall remain stand for the remaining Sections i.e. 323, 504, 506 I.P.C. and Section 3(2(va) S.C./S.T. Act, as mentioned in the charge-sheet.

Order Date :- 19.8.2025