Allahabad High Court
Chandrashekhar @ Sahul Rajput And 2 ... vs State Of U.P. And Another on 20 August, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:133154 Court No. - 83 Case :- CRIMINAL APPEAL No. - 4684 of 2024 Appellant :- Chandrashekhar @ Sahul Rajput And 2 Others Respondent :- State of U.P. and Another Counsel for Appellant :- Sudhakar Shukla Counsel for Respondent :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard Sri Sudhakar Shukla, learned counsel for the appellants and learned A.G.A. for the State.
2. By bare perusal of the office report, it has been transpired that notices have already been served upon opposite party no.2, but till today none appeared on behalf of the opposite party no.2 either in person or through counsel.
3. The instant criminal appeal has been filed to set-aside the impugned cognizance/summoning order dated 18.12.2023 passed by learned Special Judge, SC/ST (PA) Act, Kanpur Nagar in Sessions Case No.1824 of 2023 (State vs. Chandrashekhar @ Sahul Rajput and Others) arising out of Case Crime No.253 of 2022, under Sections 504, 323/34 I.P.C. and Sections 3(2)va, 3(1)da of SC/ST Act, P.S. Bidhnoo, District- Kanpur Nagar.
4. While challenging the order dated 18.12.2023, which impugned the present appeal, on the basis of legal arguments learned counsel for the appellants submitted that at the stage of taking cognizance not a single section can be added or subtracted by the learned concerned court, but the same is permissible at the time of framing charges under sections 216, 218 and 228 Cr.P.C., but in the instant matter the charge-sheet has been preferred under sections 323, 504 I.P.C. and section 3(1)da of SC/ST Act only, whereas at the time of taking cognizance section 34 I.P.C. and section 3(2)va of SC/ST Act has been included along with sections 323, 504 I.P.C. and section 3(1)da of SC/ST Act, which is not permissible and the patent illegality, which is apparent on the face of record, the order dated 18.12.2023 is highly illegal. While substantiating the arguments raised by learned counsel for the appellant, he has relied upon the judgement pronounced by Hon'ble Apex Court and the same has held in case of State of Gujarat vs. Girish Radhakrishnan Varde, (2014) 3 SCC 659 , wherein the arguments raised by learned counsel for the appellants has been answered by Hon'ble Apex Court while framing question over the charge-sheet preferred by prosecution, which is reduced hereinbelow mentioned under para-15 of the judgement of Girish Radhakrishnan Varde (supra).
"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 charge-sheet 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 charge-sheet 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 charge-sheet 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 charge-sheet."
5. Per contra, learned A.G.A. vehemently opposed the prayer as made in the appeal, but did not dispute the illegality involved, specifically while passing the order dated 18.12.2023.
6. After having the rival submissions extended by learned counsel for the parties, order dated 18.12.2023 is liable to be set-aside, since the power under section 190 Cr.P.C. does not permit the learned concerned court for exceeding over the sections which have been mentioned in the charge-sheet at the stage of taking cognizance. In the instant matter, addition of certain sections of I.P.C. and SC/ST (PA) Act sought the attention of this Court upon which the same has been observed that while taking cognizance under section 190 of Cr.P.C. the specific provision mentioned under sections 216, 218, 228 Cr.P.C. cannot be invoked.
7. In view of the aforementioned facts and circumstances of the case, order dated 18.12.2023 is hereby set-aside, matter is remitted back to learned court of Special Judge, SC/ST (PA) Act, Kanpur Nagar for passing afresh order under section 190 Cr.P.C., if required.
8. The instant appeal stands allowed accordingly.
Order Date :- 20.8.2024 Saif