Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 453 (ALL)

Tadaknath v. State Of U. P.

2023-02-15

MANJU RANI CHAUHAN

body2023
JUDGMENT : 1. Learned counsel for the applicants is permitted to make necessary correction in the memo of the application during the course of the day. 2. The case is taken up in the revised call. 3. Heard Ms. Jigyasa Singh, learned counsel for the applicant, Mr. Amit Singh Chauhan, learned AGA for the State and perused the records. 4. This application under Section 482 Cr.P.C. has been filed to quash the order passed by learned Sessions Court, Bhadohi-Gyanpur dated 06.06.2019 in Criminal Revision No. 106 of 2018 (Manju Srivastava Vs. State of U.P. and others) as well as summoning order dated 18.10.2022 passed in protest petition by Judicial Magistrate-II, Bhadohi, Gyanpur in Case Crime No. 0125 of 2016, Case No. 5673 of 2016 (State Vs. Tadaknath and others), under sections 302, 427, 447 of Indian Penal Code, Police Station Koirauna, District Bhadohi and the entire criminal proceeding in the aforesaid case crime. 5. This Court without issuing notice to opposite party no. 2, is deciding the issue on purely legal questions in the present matter. 6. The fact of the case is that the opposite party no. 2 has lodged an FIR against the applicants for the offence under section 302, 323, 504, 506, 427 and 447 IPC. After investigation charge sheet has been submitted on 20.09.2016 for the offence under section 323, 504, 506 IPC. Being aggrieved by the charge sheet the opposite party no. 2 filed protest petition as Case No. 5673 of 2016 (Sate Vs. Tadaknath and others) before the concerned Magistrate on 26.10.2016 and the same was opposed by the applicants. The aforesaid petition was dismissed by the learned Judicial Magistrate-II, Bhadohi-Gyanpur vide order dated 02.11.2018, against which the opposite party no. 2 filed revision before the concerned court as Criminal Revision No. 106 of 2018 (Manju Srivastava Vs. State and others). The aforesaid criminal revision was allowed by the learned Sessions Judge, Bhadohi-Gyanpur vide order dated 06.06.2019 and the matter was remanded back to lower court for reconsideration, therefore, the matter was reheard by the concerned Magistrate and vide the order dated 18.10.2022 the protest petition was allowed, summoning the applicants under sections 302, 427 and 447 of Indian Penal Code. 7. Learned counsel for the applicants submits that the Magistrate cannot add or subtract any offence other than the offence for which charge sheet has been filed. 7. Learned counsel for the applicants submits that the Magistrate cannot add or subtract any offence other than the offence for which charge sheet has been filed. The addition or subtraction of any offence is not permissible at the stage of summoning and it is permissible by the trial court only at the time of framing charge. In support of her argument she has relied upon the judgment of Hon'ble Apex Court in Case of State of Gujrat Vs. Girish Radhakrishnan VardeAIR 2014 Supreme Court 620. The relevant portion of the said judgment of the Apex Court reads as follows:- "14. The question, therefore, emerges as to whether the omplainant/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. 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." 8. Learned AGA could not dispute the aforesaid legal position that the concerned Magistrate cannot entertain the protest petition and summon the applicants under sections in which the charge sheet has not been submitted. Learned AGA could not dispute the aforesaid legal position that the concerned Magistrate cannot entertain the protest petition and summon the applicants under sections in which the charge sheet has not been submitted. 9. In view of the above the summoning order dated 18.10.2022 passed in protest petition by Judicial Magistrate-II, Bhadohi, Gyanpur in Case Crime No. 0125 of 2016, Case No. 5673 of 2016 (State Vs. Tadaknath and others), under sections 302, 427, 447 of Indian Penal Code, Police Station Koirauna, District Bhadohi is hereby set aside. 10. However, the learned Magistrate is at liberty to consider the matter to take cognizance of other offence against the accused at the time of framing of charges. 11. With the aforesaid direction the application is, accordingly, allowed. There shall be no order as to costs.