Allahabad High Court
Vivek Kumar Singh Alias Vivek Singh vs State Of U.P. Thru. Prin. Secy. Home ... on 27 May, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:32548
Court No. - 12
Case :- CRIMINAL APPEAL No. - 1598 of 2025
Appellant :- Vivek Kumar Singh Alias Vivek Singh
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another
Counsel for Appellant :- Rakesh Kumar Tripathi
Counsel for Respondent :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Rakesh Kumar Tripathi, learned counsel for the appellant as well as learned A.G.A. for the State of U.P.
2. By means of present appeal under Section 14A(1) of the SC/ST Act the appellant has assailed the charge sheet dated 17.03.2025, submitted in Case Crime No. 0005 of 2025, under Section 352, 351(3) of BNS and Section 3(1)(Da), 3(1)(Dha) of SC/ST Act, Police Station - Sandana, District - Sitapur as well as order of cognizance and summoning order dated 21.03.2025, passed in the aforesaid case thereby summoning the appellant under Sections 70(1), 331(6), 352, 351(3) of BNSS and Section 3(2)(v) of the SC/ST Act.
3. The brief facts as stated by the appellant are that first information report was lodged by the prosecutrix herself under Sections 331(2), 74, 352, 351(3) of BNS and Section 3(2)(va) of SC/ST Act. After investigation charge sheet has been filed under Sections 352, 351(3) of BNS and Section 3(1)(da), 3(1)(dha) of SC/ST Act on 17.03.2025.
4. The grievance of the appellant is that while taking cognizance by means of impugned order dated 21.03.2025, the trial Court has added Section 70(1), 331(6), 352 of BNS in addition to Sections which were mentioned in the charge sheet.
5. It has been submitted by learned counsel for the appellant at the stage of taking cognizance the Magistrate has to form an opinion as to whether it is a fit case for taking cognizance and commit the matter for trial, and, what charges are to be framed, would be considered at the appropriate stage of framing of charges. It is submitted that at the stage of taking cognizance the Magistrate does not have any power to add or subtract Sections under which accused are charged and any variation at this stage would be illegal. In support of his submissions, learned counsel for the appellant has placed reliance upon the judgment of Hon'ble Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659.
6. Learned A.G.A. on the other hand has opposed the appeal but does not dispute the aforesaid facts.
7. Having heard rival contentions, it is noticed that after conclusion of investigation, charge sheet is filed in the Court alnongwith all the supporting material collected during investigation including statements of witnesses recorded and on due consideration of the said material, the Court at this stage as to form an opinion as to whether it is fit case for taking cognizance and proceed with the trial. In case, from the perusal of the material collected during investigation, primafacie satisfaction is recorded that material disclose commission of cognizable offence, then summons are issued. At that stage the Magistrate would only consider the material collected, which is necessary for forming primafacie opinion for taking cognizance.
8. This aspect of the matter was considered by the Hon'ble Apex Court in the case ofState of Gujarat Vs. Girish Radhakrishnan Varde (supra), wherein in para 13 and 14 the Court has observed as under :-
"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 CrPC and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII CrPC 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) CrPC, 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 CrPC and not by way of a complaint under Section 190(1)(a) CrPC 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."
9. Accordingly, in the light of aforesaid judgment, it is clear that at the stage of taking cognizance, it is not open for the Magistrate to add or subtract any Section of BNSS/IPC from the array of Sections mentioned in the charge sheet inasmuch as, for considering as to whether charge can be framed under particular offence would be an issue taken care of at the time of framing of charges.
10. Accordingly, there is clear distinction in the jurisdiction vested in the Magistrate at the stage of taking cognizance and also at the stage of framing charges and for this reason, this Court finds that the impugned order has been passed in excess of his jurisdiction vested thereof and matter requires interference.
11. Considering the fact that the Magistrate has added Sections70(1), 331(6), 352 of BNS, in the summoning order, which were not mentioned in the charge sheet and accordingly the impugned order is invalid and arbitrary and is accordingly, set aside. The matter is remitted to the trial Court for passing fresh order in accordance with law.
12. Let fresh exercise be conducted expeditiously, preferably within one month from the date of production of certified copy of this order.
13. The present criminal appeal stands allowed.
Order Date :- 27.5.2025
A. Verma
(Alok Mathur, J.)
