State v. Mahatam), arising out of Case Crime No

Legal Reasoning

3. Solitary submission advanced by the learned counsel for the applicant is that the learned court concerned has taken the cognizance and issued summons against the present applicants under the sections for which present applicants have not been arraigned in the charge sheet.

4. The perusal of the record reveals that the charge sheet dated 13.2.2016 has been filed by the Investigating Officer in Case Crime No. 0687 of 2016, arraigning the present applicants under Sections 147, 148, 323, 504, 325, 506 I.P.C., Police Station- Taraya Sujan, District- Kushinagar. However, the learned Judicial Magistrate has taken the cognizance and passed the summoning order against the present applicants under the aforesaid sections, as well as two additional sections i.e. 452 and 392 for which the present applicants were not arraigned in the charge sheet. Applicants came to know for the first time about the said proceedings when they have been served with a bailable warrant in the aforesaid matter. It is no more res integra that the conducting an investigation and submitting an report under Section 173 Cr.P.C. fall within the domain of the Investigating Officer, however, taking the cognizance and issuing the summons are exclusively within the domain of the learned Judicial Magistrate.After receiving the charge sheet submitted by the Investigating Officer, learned Magistrate has to examine as to whether police case is fit for taking cognisance and committing the matter for trial. However, he can not exclude or include any section into the charge sheet after investigation has been completed and accordingly he shall take cognizance and issue summons against the accused. Hon'ble Supreme Court has elucidated this point in the matter of State of Gujarat Vs. Girish Radhakrishnan Varde (2014) 3 SCC 659. Relevant paragraph nos. 14 & 15 is quoted hereinbelow : "14. But if a case is registered by the police based on the FIR registered at the Police Station under Section 154 Cr.P.C. and not by way of a complaint under Section 190 (a) of the Cr.P.C. 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 chargesheet 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 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.

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 I.P.C. 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.

5. It is apparent on the face of the record that while taking cognizance and issuing summons against the present applicants, the learned Chief Judicial Magistrate has not properly applied his mind and issued the summons in a very perfunctory manner without properly going through the charge sheet wherein present applicants have been arraigned. Moreover, perusal of the summoning order dated 8.6.2020 evince that in the body of the order, no section has been mentioned under which the present applicants have been summoned. However, the cause title and the sections were recorded in the caption. It appears that the learned Magistrate has inadvertently mentioned all the sections under which the FIR has been lodged and miserably failed to consider the specific sections under which the present applicants are arraigned in the charge sheet.

6. In this conspectus, as above, no useful purpose would be served to keep this matter pending, therefore, this Court deems it fit to decide the instant application finally without going into merits of the case with the direction that learned court concerned shall pass a fresh cognizance/summoning order, having consider the charge sheet dated 13.12.2016.

7. Resultantly, the instant application succeeds and is allowed. The summoning order dated 8.6.2020 is quashed and learned Chief Judicial to pass a fresh is directed cognizance/summoning order, having consider the charge sheet dated 13.12.2016, within a period of one month from the date of production of a certified copy of this order. Magistrate Order Date :- 11.11.2024/vkg