Allahabad High Court
Richa vs State Of U.P. And Another on 25 May, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:118348 Court No. - 80 Case :- MATTERS UNDER ARTICLE 227 No. - 204 of 2023 Petitioner :- Richa Respondent :- State of U.P. and Another Counsel for Petitioner :- Rajendra Kumar Singh,Nitin Kumar Counsel for Respondent :- G.A.,Khurshed Alam Hon'ble Siddharth,J.
1. Counter affidavit has been filed by learned counsel for respondent no.2 and rejoinder affidavit has been filed by learned counsel for petitioner, which are taken on record.
2. Sri P.C. Srivastava, learned Additional Advocate General, was called upon by the Court for assistance in this case.
3. Heard Sri Dinesh Kumar, Advocate, holding brief of Sri Nitin Kumar, learned counsel for the petitioner; Sri Khurshed Alam, learned counsel for the respondent no.2 and perused the material on record.
4. This petition has been filed praying for setting aside the impugned order dated 22.11.2022 passed by Additional Sessions Judge, Nagina, Bijnor, in Criminal Revision No. 31/2022 (Ashok Kumar Vs. State of U.P. and another).
5. Learned counsel for the petitioner has submitted that Investigating Officer submitted charge-sheet against opposite party no.2 and others under Section 498-A, 323, 504, 506, 376 IPC and 3/4 D.P. Act. At the time of taking cognizance on the charge-sheet, the Judicial Magistrate has taken cognizance of offences under Sections 376, 511 and 377 IPC also alongwith earlier sections keeping in view the statement of the victim under Section 164 Cr.P.C. by the order dated 19.5.2022.
6. Learned counsel for opposite party no.2 challenged the aforesaid order dated 19.5.2022 before the District Sessions Judge, Bijnor, vide criminal revision no. 31 of 2022, which has been allowed by the order dated 22.11.2022 and the cognizance order dated 19.5.2022 passed by the Judicial Magistrate has been set aside.
7. Learned counsel for the petitioner has submitted that the revisional order is not in accordance with law. Since the Magistrate has taken cognizance regarding the offence committed under Sections 376, 511, 377 IPC also on the basis of material collected by the Investigating Officer, revisional court ought not to have interfered with the order of Magistrate.
8. Learned counsel for opposite party no.2 has opposed the submissions made by learned counsel for the petitioner and has submitted that the order of revisional court was justified since when a case is registered by police based on FIR, Magistrate cannot not exclude or include any section into charge-sheet. It can be only done at the time of framing charge.
9. After hearing rival contentions, this Court finds that the Apex Court in the case of State of Gujarat VS. Girish Radhakrishnan Varde, 2014 4 SCC (Cri) 660 has held in paragraph nos. 11 to 18 as follows :-
"11. While analysing the controversy raised in this appeal, it is clearly obvious that the entire dispute revolves around the procedural wrangle and the correct course to be adopted by the trial court while taking cognizance but in the entire process it appears that the distinction between a case lodged by way of a complaint before the magistrate commonly referred to as complaint case under Section 190 of the Cr.P.C. and a case registered on the basis of a first information report under Section 154 of the Cr.P.C. before the police, seems to have been missed out, meaning thereby that the distinction between the procedure prescribed under Chapter XII of the Cr.P.C. to be adopted in a case based on police report and the procedure prescribed under Chapter XIV and Chapter XV for cases based on a complaint case lodged before the magistrate has clearly been overlooked or lost sight of. It may be relevant to record at this stage that the term ?complaint? has been defined in the Cr.P.C. and it means the allegations made orally or in writing to a magistrate, with a view to taking action under the Code due to the fact that some person, whether known or unknown, has committed an offence but does not include a police report lodged under Section 154 Cr.P.C. Section 190(1) of the Cr.P.C. contains the provision for cognizance of offences by the Magistrates and it provides three ways by which such cognizance can be taken which are reproduced hereunder:-
(a) Upon receiving a complaint of facts which constitute such offence;
(b) upon a police report in writing of such facts--that is, facts constituting the offence--made by any police officer;
(c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed.
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such. facts made by any police officer it is a case instituted in the Magistrate's court on a police report. The scheme underlying Cr.P.C. clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to the court.
12. 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 chargesheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the chargesheet appears to have entertained an application of the complainant for addition of three other sections into the chargesheet, completely missing that if it were a complaint case lodged by the complainant before the magistrate under Section 190 (a) of the 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.
13. 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 (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 chargesheet 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 chargesheet, 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 chargesheet after investigation has been completed and chargesheet has been submitted by the police.
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 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.
15. In the alternative, if a case is based on a complaint lodged before the magistrate under Section 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 substracted. The 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.
16. 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 is 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 the 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 chargesheet 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 chargesheet, 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 of the Cr. P.C. clearly shall have to be followed.
17. Since the instant case is based on the FIR lodged before the police, the correct stage for addition or substraction of the Sections will have to be determined at the time of framing of charge. But the learned single Judge of the High Court in the impugned judgment and order has not assigned reasons with accuracy and clarity for doing so and has made a casual observation by recording that the Trial Court at the appropriate stage will have the power to determine as to which provision is to be applied before the matter is finally sent for trial. The fall out of the Order of the High Court is that the prosecution represented by the appellant -State of Gujarat might be rendered remedy less as setting aside of the order of the Magistrate is likely to give rise to a situation where the prosecution would be left with no remedy for rectification or appreciation of the plea as to whether inclusion or exclusion of additional charges could be permitted. In fact, while upholding the order of the learned Additional District & Sessions Judge, the High Court has further overlooked the fact that the Additional District & Sessions Judge before whom revision was filed against the order of the Chief Judicial Magistrate, could have allowed the revision on the ground of erroneous exercise of jurisdiction by the Chief Judicial Magistrate who permitted to add three more Sections into the chargesheet. But the Additional District & Sessions Judge instead of doing so has straightway quashed the order passed by the Magistrate instead of confining itself to consideration of the question regarding error of jurisdiction and laying down the correct course to be adopted by the magistrate. In fact, the correct course of action should have been laid down by the High Court as also the learned Additional District & Sessions Judge by permitting the appellant ? State of Gujarat to raise the question of addition of charges at the time of framing of charge under Section 228 of the Cr. P.C. and should not have passed a blanket order setting aside the order of the Magistrate without laying down the correct course of action to be adopted by the affected parties with the result that three orders came to be passed by the Chief Judicial Magistrate, Additional District & Sessions Judge and the learned Single Judge of the High Court, yet it could not resolve the controversy by highlighting the appropriate course of action to be adopted by the prosecution-State of Gujarat as also the magistrate which permitted addition of sections after submission of chargesheet missing out that the matter did not arise out of a complaint case lodged before the magistrate but a case which arose out of a police report/FIR in a Police Station.
10. From the above consideration of the judgement of Hon'ble Supreme Court, it is clear that the order of the revisional court is in accordance with law and calls for no interference.
11. The order of the revisional court is upheld.
12. The petition is dismissed.
Order Date :- 25.5.2023 Ruchi Agrahari