Allahabad High Court
Sazid And Another vs State Of U.P. And Another on 3 November, 2025
Author: Deepak Verma
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:200781
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 43643 of 2023
Sazid And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Akhil Kumar Singh, Deepesh Kumar Ojha, Vimlendu Tripathi
Counsel for Opposite Party(s)
:
Atul Kumar Tiwari, G.A., Pawan Kumar Rao, Vibhu Rai
Court No. - 74
HON'BLE DEEPAK VERMA, J.
1. Heard Sri Vimlendu Tripathi, learned Advocate assisted by Sri Deepesh Kumar Ojha and Sri Akhil Kumar Singh, learned counsel for the applicants; Sri V.M. Zaidi, learned Senior Advocate assisted by Sri Pawan Kumar Rao, learned counsel for the opposite party no.2; learned A.G.A. on behalf of State and perused the record.
2. Present 482 Cr.P.C. application has been filed to quash the impugned charge sheet dated 02.07.2023; summoning order dated 16.10.2023 as well as entire proceedings of Case Crime No.0358 of 2023 (State Vs. Sudhir Rao and others) under Sections 323, 307, 504, 506 I.P.C., P.S. Kasya, District Kushinagar, pending before the ACJM Court, Kasya, Kushinagar.
3. Brief facts of the case is that informant moved an application before the Additional Chief Judicial Magistrate Kasya, Kushinagar under Section 156(3) Cr.P.C., alleging that on account of previous dispute on 09.11.2022 at about 9:30 am, the applicant No.2 and unknown persons reached the shop of the informant/place of occurrence and started illegal encroachment on the shop of the husband of the informant. When the informant objected them, they started to abuse the husband of the informant and with intention to kill, they strangulated his neck. It is further alleged that applicant no. 2 tried to snatch the licensee pistol of the informant's husband and due to this reason, the said pistol fired in the cover of the pistol and bullet entered in the earth surface and a hole made in the pant of the informant's husband. Thereafter, police reached at the spot and took the informant's husband in lockup. The learned A.C.J.M. vide order dated 2.2.2023 directed the SHO to register the F.I.R. The F.I.R. was registered on 09.05.2023 under Sections 323, 504, 506 as Case Crime No. 0358 of 2023, P.S. Kasya, District Kushinagar.
4. Counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case. After registration of the F.I.R. against the applicants under the aforesaid sections, the I.O. recorded the statement of the informant under Section 161 Cr.P.C. (through affidavit) and statement of victim (through affidavit) under section 161 Cr.P.C. The I.O. recorded statement of other eye witnesses present on the spot. The statement of independent witnesses, namely, Avdhesh Gupta and Manoj Kumar Gupta was recorded and they stated different version from the F.I.R. stating that the actual incident occurred when the husband of the informant fired on the applicant no. 1. The I.O. after collecting evidence and recording the statement of eye witnesses, submitted charge sheet as Charge Sheet No.A-472/2023 on 02.07.2023 under Sections 323, 504, 506 I.P.C. against the applicants. The I.O. has collected evidence with regard to injury which is filed with rejoinder affidavit that inured has received four injuries. The injury no. 1, 2 and 3 are simple in nature and caused by hard and blunt object and injury no. 4 advised X-ray. The I.O. did not find any evidence to prosecute the applicant under section 307 I.P.C. and submitted charge sheet under Sections 323, 504, 506 I.P.C. He next submitted that informant moved application under Section 156(3) Cr.P.C. against the applicant and same was registered against the applicants. The opposite party no. 2 moved protest application before the court concerned for adding section 307 I.P.C. against the applicants. The trial court without applying judicial mind and considering the legal aspects, accepted the protest application of the opposite party no. 2 and summoned the applicants under Sections 323, 504, 506, 307 I.P.C. vide order dated 16.10.2023. The order passed by the learned Magistrate dated 16.10.2023 is absolutely illegal, arbitrary and without application of judicial mind and is not tenable in the eye of law. The Hon'ble Apex Court in State of Gujarat vs Girish Radhakishan Varde (2014) 3 SCC 659 held that court has no power to include or exclude the sections of BNS in charge sheet submitted by Investigating Officer. Paragraphs no.15, 16 and 18 are quoted below:- "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 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 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 section 216, 218 or under section 228 of the Cr.P.C. 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.
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 complain case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conduct investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures.
18. Since the instant case is based on FIR lodged before the police, the correct stage for addition or subtraction of the sections will have to be determined at the time of framing of charge."
5. The Hon. Apex Court has held that learned Magistrate has no authority under law to subtract section or addition of the offence mentioned in the charge sheet, at the stage of taking cognizance.
6. Per contra, learned counsel for the informant vehemently opposed the submission raised by counsel for the applicants and argued that the Magistrate has ample power to add or subtract section, if he finds evidence on record. He has placed reliance over the judgment passed by the Apex Court in Pramatha Nath Mukherjee Vs. State of West Bengal, 1960 SCC Online SC 76; Dharam Pal and Others Vs. State of Haryana and Another (2014) 3 SCC 306 and Nahar Singh Vs. State of U.P. and Another (2016) 6 SCC 680.
7. Considered the argument raised by counsel for the parties and perused the record. The dispute herein is that I.O. has submitted charge sheet under Sections 323, 504, 506 I.P.C. Thereafter, the court took cognizance on the charge sheet. The informant moved protest application relying over the evidence which was not produced before the I.O. during investigation and submitted that the offence under Section 307 I.P.C. is, prima facie, made out and the applicants should be summoned under Section 307 I.P.C. The trial court considering the protest of the opposite party no. 2, issued summons against the applicants under Sections 323, 307, 504, 506 I.P.C. The question before this Court is that whether the Magistrate has power to add sections/offences in which the I.O. has not submitted charge sheet and on the evidence of material, which was not the part of the case diary.
8. The Hon. Apex Court in the case of State of Gujarat (supra) has clearly held that Magistrate having no power in cases based on police report to add and subtract the sections at the time of taking cognizance as same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or 228 Cr.P.C.
9. The reliance placed by counsel for the informant over the judgment of Apex Court in Pramatha Nath Mukherjee (Supra), the question raised in the appeal before the Apex Court was whether a Magistrate after making an order of discharge under Section 251 A (2) Cr.P.C. in respect of a charge for an offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case.
10. The dispute related in Pramatha Nath case is not related to the present case, in hand, as such this case is not applicable in the present case.
11. The Hon. Apex Court while dealing with the case Dharam Pal and Others (supra), the Constitution Bench has considered six questions, mentioned in paragraph no. 7 which are being given below:
"7. The questions which require the consideration of the Constitution Bench are as follows:
7.1. 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?
7.2. 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?
7.3. 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?
7.4. Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?
7.5.Upon the case being committed to the Court of Session, could the Sessions 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?
7.6. Was Ranjit Singh case [Ranjit Singh v.State of Punjab, (1998) 7 SCC 149 : 1998 SCC (Cri) 1554] , which set aside the decision in Kishun Singh case [Kishun Singh v.State of Bihar, (1993) 2 SCC 16 : 1993 SCC (Cri) 470] , rightly decided or not?"
12. The present case is also not related with the dispute present before the Apex Court, therefore, this case is also not applicable in the present case.
13. Reliance has also been placed upon the Nahar Singh (supra) case which is also not applicable in the present case.The dispute in the present case was that whether the Magistrate taking cognizance of an offences on the basis of police report in terms of Section 190 (1) (b) of code of criminal procedure 1973, can issue summons to any persons not arraigned as an accused in the police report and whose name also does not feature in column (2) of such report.
14. The Hon. Apex Court in State of Gujarat (supra) has specifically observed that the Magistrate has no authority under law to make any addition or subtraction in the offence, at the stage of taking cognizance. He at this stage is simply to form an opinion as to whether the case is fit for taking cognizance and committing the matter for trial or not. In case, he is not satisfied with the conclusion of the investigation, he is free to order for further investigation of the case by the Police under Section 173(8) Cr.P.C.
15. With the above observation, present application is being allowed and the summoning order challenged herein is set aside.
16. Accordingly, the summoning order dated 16.10.2023 passed in Case Crime No.0358 of 2023 (State Vs. Sudhir Rao and others) under Sections 323, 307, 504, 506 I.P.C., P.S. Kasya, District Kushinagar, is hereby set aside with direction to the A.C.J.M. concerned to pass a fresh order, in view of the order passed in State of Gujarat vs Girish Radhakishan Varde (supra).
17. With aforesaid direction, the present application under Section 482 Cr.P.C. is accordingly, allowed.
(Deepak Verma,J.) November 3, 2025 Meenu Singh