Allahabad High Court
Mohd Idris Ali vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 6 May, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:26187 Court No. - 14 Case :- APPLICATION U/S 482 No. - 3430 of 2025 Applicant :- Mohd Idris Ali Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Vimal Kishor Singh,Ashutosh Pandey,Premkant,Wazhul Qamar Counsel for Opposite Party :- G.A. Hon'ble Manish Kumar,J.
1. Vakalatnama filed by Sri Abhishek Pratap Singh on behalf of respondent no. 2 today is taken on record.
2. Heard learned counsel for the applicant, learned counsel for the respondent no. 2, Sri Piyush Kumar Singh, learned AGA for the State-respondents and perused the record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant with the following main reliefs:
"Wherefore, it is most respectfully prayed that this Hon'ble Court may very graciously be pleased to quash the impugned charge sheet No. 01/19.09.2023, submitted under Section of 323, 504.506 and 324 of I.P.C., in Case Crime No. 195/2023, as well as impugned Summoning Order dated 15.04.2024 passed by the Learned Judicial Magistrate, Shravasti, in Criminal Case No. 3203/2024, arising out of Case Crime No. 195/23, under section- 323, 504, 506 and 326 I.P.C., Police Station- Gilaula, District- Shravasti, 'State of U.P. Vs. Mohd Imran and Another', in the interest of justice.
It is further prayed that this Hon'ble Court may very graciously be pleased to stay the operation and implementation of the aforesaid impugned order of cognizance and summoning dated 15.04.2024 passed by the Learned Judicial Magistrate, Shravasti in Criminal Case No. 3203/24 (State of U.P. Vs. Mohd Imran and Another) along with the entire proceeding of Criminal Misc. Case No. 3203/2024, pending before the Court of the Learned Judicial Magistrate, Shravasti, during pendency of this Application."
4. The brief facts of the case are that an FIR dated 14.8.2023 has been lodged by the respondent no. 2 against the applicant and one Sri Imran alleging therein that a dispute arose over a demand for money, and they started hurling abuses and beating with lathi and danda. The police after investigation has filed the charge-sheet under Sections 323, 504, 506 and added Section 324 IPC. The court concerned took cognizance and issued summoning order against the applicant under Sections 323, 504, 506 and 326 IPC i.e. the concerned Magistrate without jurisdiction has added Section 326 IPC while issuing summons against the applicant.
5. Learned counsel for the applicant has submitted that the Magistrate or the court concerned cannot take cognizance on the sections which are not mentioned in the charge sheet. The Magistrate in a case which is based on a Police Report cannot add or subtract 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 Sections 216, 218 or 228 Cr.P.C., as the case may be.
6. In support of his submissions reliance has been placed upon the decision of Hon'ble Supreme Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde reported in (2014) 4 SCC (Cri) 660. The relevant paragraph nos. 14 and 15 reads as under:
"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.
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 offences 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 subtract 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 Sections 216, 218 or under Section 228 CrPC 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."
7. On the other hand, learned counsel for the private respondent and AGA have opposed the case but unable to dispute the the submissions made by learned counsel for the applicant and law laid down by Hon'ble Supreme Court in the case ofState of Gujarat Vs. Girish Radhakrishnan Varde (supra).
8. After hearing the learned counsel for the parties and going through the record of the case and the judgement of the Hon'ble Supreme Court rendered in the case of State of Gujarat Vs. Girish Radhakrishnan Varde (supra), it is evident that the impugned order dated 15.04.2024 is unsustainable, which deserves to be quashed and the same is hereby quashed.
9. With the aforesaid observations/directions, the instant application under Section 482 Cr.P.C./528 B.N.S.S. stands allowed.
Order Date :- 6.5.2025 AKK