Court No. - 73
Case :- APPLICATION U/S 482 No. - 16334 of 2019 Applicant :- Kuwar Pal And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajiv Lochan Shukla,Manoj Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Raj Beer Singh,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Criminal Case No. 167 of 2019 (State vs. Kuwar Pal & Ors.) including charge- sheet no.2 of 2019 dated 03.01.2019, in Case Crime No. 0359 of 2018, under Sections 452, 323, 324, 325, 308, 504 and 506 of IPC, as well as the cognizance order and summoning order dated 29.03.2019, P.S. Rabupura, District Gautam Budh Nagar pending in the court of Judicial Magistrate, Jewar, Gautam Budh Nagar.
It has been argued by learned counsel for the applicants that the impugned order dated 29.03.2019 is against the provisions of law and thus, not sustainable. The Magistrate has no power to add any section at the stage of cognizance. The only option before the Magistrate was to order further investigation but that has not been done. It is argued that the impugned order as well as the impugned charge-sheet are abuse of the process of law. Learned counsel for the applicants relied upon the case of State of Gujarat vs. Girish Radhakrishnan Varde 2013 LawSuit(SC) 1070.
Learned A.G.A. has opposed the application and submitted that as far as the charge-sheet and proceedings are concerned, the charge-sheet has been submitted in accordance with law and the material on record discloses cognizable offence against the applicants. However, it was submitted that in view of the above said authority of Apex Court, addition of any other sections might have been done at the stage of framing of charge and not at the stage of taking the cognizance.
The perusal of the record shows that after investigation police have filed charge-sheet under Sections 323, 324, 325, 504 and 506. While taking cognizance vide impugned order dated 29.03.2019, learned Magistrate has taken cognizance under Sections 452, 323, 324, 325, 308, 504 and 506 of IPC and the accused persons were summoned for these offences. It is clear that Sections 452 and 308 of IPC have been added by the learned Magistrate while taking cognizance on the charge-sheet. In the case of State of Gujarat (supra) it has been held by the Hon'ble Apex Court that:
"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."
It was further held as under:
"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."
In view of the above stated pronouncement, it is clear that the learned Magistrate has no jurisdiction and power to add any additional Section while taking cognizance on the charge-sheet and thus, on that account, there is error in the impugned order. However, so far as the prayer for quashing the proceedings is concerned, the material on record clearly discloses commission of cognizable offence against the applicants. Thus, the prayer of quashing the proceedings is declined, however, the impugned order so far as it relates to the cognizance and summoning of the applicants under Sections 452 and 308 of IPC, which were added by the learned Magistrate at the time of cognizance, is set aside and the learned Judicial Magistrate shall proceed further on the charge-sheet under Sections 323, 324, 325, 504 and 506 of IPC in accordance with law. At the stage of charge, it would be open to the court to consider whether a case under Sections 452 and 308 of IPC or any other offences is made out or not.
With the aforesaid direction, the application is disposed off finally.
Order Date :- 25.4.2019 A. Tripathi