Allahabad High Court
Asfak And 4 Others vs State Of U.P. Thru. Prin. Secy.Home ... on 21 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:49093
Court No. - 14
Case :- APPLICATION U/S 482 No. - 6752 of 2025
Applicant :- Asfak And 4 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy.Home Deptt. Lko. And Another
Counsel for Applicant :- Bhanu Pratap Singh,Prateek Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
1. Supplementary affidavit filed by learned counsel for the applicants is taken on record.
2. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
3. Instant application under Section 482 Cr.P.C./ 528 B.N.S.S. has been filed with the prayer to quash the entire proceeding of Criminal Case No.734 of 2024 arising out of Case Crime No.0308 of 2023 under Sections 34, 323, 506 IPC, P.S.- Ram Nagar, District- Barabanki including the charge sheet dated 20.09.2023 as well as cognizance/summoning order dated 10.04.2024 passed by the Additional Chief Judicial Magistrate, Court No.11, Barabanki.
4. The argument put-forth by learned counsel for the applicants is that the first information report was lodged on 07.06.2023, under Sections 34, 323, 324, 506, 452 IPC, bearing Case Crime No.0308 of 2023, at Police Station - Ramnagar, District- Barabanki. He submits that the charge sheet was filed under Sections 34, 323, 506 of IPC and after the charge sheet was filed, the Magistrate concerned took cognizance and issued process on 10.04.2024 under Sections 279 and 304-A of IPC, which is impermissible under the law. He argued that the settled proposition of law is that the Magistrate is not empowered to alter the charges at the level of taking of cognizance and issuance of process, whereas, in the present matter, the charge sheet was filed in different sections but the Magistrate concerned has taken cognizance in sections under which, the charge sheet was filed.
5. In support of his submission, he hasalso placed reliance on the judgment passed in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, Criminal Appeal No.1996 of 2013 [Arising out of SLP (Crl.) No.734 of 2012]and has referred the paragraph 14, which reads as under:-
"14. 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 Indian Penal Code 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 chargesheet 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 chargesheet 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 Section 216, 218 or under Section 228 of the Code of Criminal Procedure as the case may be which means that after submission of the chargesheet 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 chargesheet."
6. Relying upon the aforesaid, he submits that the Hon'ble Apex Court has held that the Magistrate, in a case, instituted on a police report, cannot add or subtract sections at the time of taking of cognizance, as the same permissible at the time of framing of charges and, therefore, this lacuna cannot be filled up at the stage of cognizance.
7. Concluding his arguments, he submits that since theorder dated 10.04.2024 passed by the Additional Chief Judicial Magistrate, Court No.11, Barabanki., is utterly against the settled proposition of law as is rendered in case ofState of Gujarat Vs. Girish Radhakrishnan Varde (supra), therefore, the whole proceedings vitiate in the eyes of law, and thus the order impugned may be set aside.
8. On the other hand, learned A.G.A. appearing for the State has opposed the contentions aforesaid but he could not dispute the applicability of the settled proposition as held in the case of State of Gujarat Vs. Girish Radhakrishnan Varde (supra).
9. Considering the submissions of learned counsel for the parties and after perusal of record, it is apparent that the trial court while taking cognizance in the charge sheet, filed under Sections34, 323, 506 IPC, has altered the section and issued process under Sections279 and 304-A of IPC.It is a trite law that the Magistrate cannot alter the charges at the time of taking of cognizance, as this lacuna can only be filled up at the stage of framing of charges and, therefore, apparently, the order dated 10.04.2024 is against the settled law, thus, is unsustainable.
10. Consequently, the order impugned dated10.04.2024 passed by the Additional Chief Judicial Magistrate, Court No.11, Barabanki inCriminal Case No.734 of 2024 arising out of Case Crime No.0308 of 2023 under Sections 34, 323, 506 IPC, P.S.- Ram Nagar, District- Barabanki,is here by set aside.
11. The matter is remitted back to the trial court concerned to pass a fresh order within a period of 45 days from the date of this order in the light of the law settled in the case ofState of Gujarat Vs. Girish Radhakrishnan Varde (supra).
12. The applicant shall cooperate in the trial proceeding.
13. The present application is hereby allowed accordingly.
Order Date :- 21.8.2025
V. Sinha
