Allahabad High Court
Banti @ Brijesh And 5 Others vs State Of U.P. And Another on 18 June, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:104054 Reserved On-13.06.2024 Delivered On-18.06.2024 Case :- MATTERS UNDER ARTICLE 227 No. - 9796 of 2023 Petitioner :- Banti @ Brijesh And 5 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- P.K. Singh,Vijay Kumar Mishra Counsel for Respondent :- G.A.,Kamlesh Kumar Dwivedi Hon'ble Siddharth,J.
1. Heard Sri P.K. Singh, learned counsel for the petitioner, Sri Imran Ullah, learned counsel for the informant learned A.G.A. for the State.
2. The instant petition has been filed praying for set aside the impugned judgment and order dated 18.07.2023 passed in criminal revision no. 799 of 2022, Banti @ Brijesh and others Vs. State of U.P. and another as well as set aside the judgment and order dated 03.12.2022 passed by Judicial Magistrate, Court No. 2, Fatehabad, Agra (State Vs. Bhagwan Singh) and others to extent of cognizance and summoning of applicants under sections 409, 467, 468, 471, 120B/34, 504, 506 IPC arising out of case crime no. 258 of 2021, Police Station- Shamshabad, District- Agra.
3. The brief facts of the present case are that the investigating officer submitted charge-sheet on 24.11.2024 against the petitioners under section 406, 504, 506, 120-B IPC. The Magistrate vide order dated 03.12.2022 took cognizance against the petitioners for committing the offences under sections 409, 420, 467, 468, 471, 120-B/34, 504, 506 IPC. The petitioners approached the revisional court against the aforesaid order, but the revision was dismissed on 18.07.2023 without considering the relevant law in this regard.
4. Learned counsel for the revisionist has relied upon the judgment of Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659 and has submitted that the Magistrate at the time of taking cognizance can neither add nor substract the charges for any offence/any section. It can only be done by the trial court at the time of framing of charge under sections 216, 218 or 228 Cr.P.C.
5. Learned AGA and learned counsel for the opposite party no.2 have opposed the submissions made by the learned counsel for the petitioner and has stated that the petitioners are habitual of committing such offences. They also involved in number of criminal cases.
6. After hearing the rival contentions, this Court finds that the Apex Court in the case of State of Gujarat (supra) has considered the relevant law in paragraph 15 of the judgment as follows:-
" 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."
7. In view of the above, the impugned judgment and orders are hereby set aside.
8. It is open for the opposite party no. 2 to raise their objection regarding non-inclusion of all the sections by the investigating officer at the stage of framing charge.
9. The concerned Magistrate shall pass a fresh cognizance order/summoning order within a month from the filing of the certified copy of this order
10. The writ petition is allowed.
Order Date :- 18.06.2024 Abhishek