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2016 DIGILAW 3231 (ALL)

Ramveer Singh v. State of U. P.

2016-09-21

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. 1. Present Sri Rajesh Kumar Mishra for petitioner, AGA for respondent no.-1 State. None present for respondent no. 2 complainant. Counsel for the petitioners informs that his written information regarding this mention case was refused by counsel for the respondent no.-2. 2. Admitted facts of this case are that complainant Dharmveer Singh had lodged FIR, on the basis of which Case Crime No. 280 of 2013 was registered in police station Atrauli, District Aligarh. The alleged victim of said incident was daughter of informant (Dharmveer Singh, present respondent no.-2). Afer investigation police had submitted charge-sheet for offence under section 498-A, 323 IPC and 3/4 D.P. Act. On the basis of which criminal case No. 1110 of 2013, State Vs. Ramveer Singh and others u/ss 498-A, 323 IPC and 3/4 D.P. Act was registered. Then before framing of the charge the complainant had moved application dated 10.10.2013 with prayer that order of cognizance in this matter should also be passed for offence u/s 313 IPC alongwith other offences. After affording opportunity of hearing on this application, Judicial Magistrate, Atrauli, Aligarh had passed order dated 21.10.2013 by which said application dated 10.10.2013 of complainant (respondent no.-2) was allowed and it was ordered that on charge-sheet filed by police in this matter, the cognizance of offence under section 313 IPC is also taken alongwith offence under section 498-A, 323 IPC and section 3/4 D.P. Act. 3. Against this proceeding of trail court of taking cognizance of offence under section 313 IPC, present Writ Petition No. 10309 of 2015 was filed by petitioners, who are accused in aforesaid criminal case. 4. Another application under Section 482 CrPC no. 41492 of 2013 was filed by same petitioners for quashing the proceedings of criminal case no. 1110 of 2013, State Vs. Ramveer Singh & others, which relates to case crime no. 280 of 2013, police station Atrauli, District Aligarh. This application and present writ petition were connected together. 5. Counsel for the petitioner contended that when charge-sheet has been submitted by the police after investigation, the cognizance on its basis has been taken, then Magistrate has no power to amend the order of cognizance either by subtracting or adding offence unless stage of charge has arrived. 6. This application and present writ petition were connected together. 5. Counsel for the petitioner contended that when charge-sheet has been submitted by the police after investigation, the cognizance on its basis has been taken, then Magistrate has no power to amend the order of cognizance either by subtracting or adding offence unless stage of charge has arrived. 6. These contentions were refuted by AGA, who submitted that after application of judicial mind and after considering available evidence the impugned order dated 21.10.2013 has been passed by trial court which is not erroneous. 7. In this matter it has to be considered that after taking cognizance of offence on the basis of charge-sheet filed by the police, whether the Magistrate can amend order of cognizance or not. In this regard, counsel for the petitioners has cited State of Gujarat v. Girish Radhakrishnan Varde, (2014) 3 SCC 659 in which Hon'ble Apex Court had held 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." 8. Thus it is held held that after the Magistrate has taken cognizance of offence on the basis of charge-sheet filed by police after investigation then such Magistrate cannot exclude or include any section. Before the stage of framing of charge, the order of cognizance passed after receiving of the charge-sheet, cannot be changed or amended by Magistrate. 9. Thus it is held held that after the Magistrate has taken cognizance of offence on the basis of charge-sheet filed by police after investigation then such Magistrate cannot exclude or include any section. Before the stage of framing of charge, the order of cognizance passed after receiving of the charge-sheet, cannot be changed or amended by Magistrate. 9. In view of above, although said impugned order dated 21.10.2013 of Magistrate has been confirmed by the judgment dated 4.4.2015 passed by revisional court in Criminal Revision No. 905 of 2014 (Ramveer Singh and others Vs. State and another); but, for the legal position discussed above, the impugned orders of trial court dated 21.10.2013 and judgment dated 4.4.2015 passed by revisional court is erroneous. 10. So far prayer of quashing the charge sheet in Application under section 482 CrPC no. 41492 of 2013 is concerned, in this matter there appears no reason to quash the charge-sheet or proceedings of the trial court, or change the order of cognizance. In view of above discussion, such point can be considered by trial court at the time of hearing on point of charges. 11. In view of above, the application under Section 482 CrPC no. 41492 of 2013 is dismissed. But the present Criminal Misc. Writ Petition No. 10309 of 2015 is allowed, and the order dated 21.10.2013 passed by Judicial Magistrate, Atrauli, district Aligarh in Criminal Case No. 1110 of 2013 (State Vs. Ramveer Singh & others) as well as the judgment dated 4.4.2015 passed by Additional Sessions Judge, Court No.-5, Aligarh in Criminal Revision No. 905 of 2014 (Ramveer Singh and others Vs. State and another) are quashed.