State of U.P. and Another v. Party

1. Heard Shri Parmeshwar Chaudhary, learned counsel for the applicant and Shri Pankaj Kumar Tripathi, learned A.G.A. for the State.

2. Learned counsel for the applicants submits that he has filed the instant application under Section 482 Cr.P.C. with the relief which has been mentioned in the prayer clause of the application.

3. The relief which has been mentioned in the application is delineated below:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to quash the Cognizance/ Summoning Order dated

10.09.2024 and B.W. dated 12.11.2024 passed by Special Chief Judicial Magistrate, Agra in Case No.17822 of 2024, (State Versus Atif Abbas @ Chhotu) and Charge sheet No.91/2024 dated 22.02.2024 in as much as entire proceeding of Case No.17822 of 2024, under Section 420, 467, 468, 471 I.P.C. arising out of Case Crime No.321 of 2023 under Section 420, 467, 468, 471 I.P.C., Police Station Shahganj, District- Agra pending in the Court of Special Chief Judicial Magistrate, Agra."

4. Learned counsel for the applicant submits that an F.I.R. has been lodged as Case Crime No.321 of 2023, under Sections 420, 467, 468, 471 I.P.C., Police Station Shahganj, District- Agra against the applicant. Learned counsel for the applicant further submits that the applicant had 2 A482 No. 41811 of 2024 applied for a passport with a different name, which did not tally with his high school marksheet as well as certificate and pursuant thereto the police conducted an inquiry and in the inquiry report, it has been found that the editing in respect of the applicant’s name, his father’s name and his mother’s name has been done by the applicant himself. Learned counsel for the applicant further submits that in the inquiry it has been disclosed that such editing was not done by any other person, who is running the cyber cafe.

5. Per contra, learned A.G.A. submits that the applicant intended to obtain a passport with different name which was not mentioned in his high school marksheet and certificate. He submits that in the marksheet the applicant’s name is Chhotu Khan, the name of his father is Irshad Khan and the name of his mother is Farzana Begum, whereas by using a photo editing app, the applicant changed his name to Atif Abbas, his mother’s name to Farzana in place of Farzana Begum and his father’s name to Irshad in place of Irshad Khan.

6. Learned A.G.A. further submits that the applicant, deliberately or intentionally, changed the names to obtain a passport from the Passport Department. He further submits that the learned Judicial Magistrate has taken cognizance in accordance with law and the remedy is available to the accused at the time of framing of charge, as an opportunity of hearing shall be given to the accused under Section 239 Cr.P.C. The said Section 239 Cr.P.C. (corresponding Section 262 BNSS) is quoted below: "Section 239 Cr.P.C., When accused shall be discharged- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Section 262 B.N.S.S., When accused shall be discharged- (1) The accused may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230. 3 A482 No. 41811 of 2024 (2) If, upon considering the police report and the documents sent with it under Section 193 and after making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing."

7. The Hon'ble Supreme Court in State of Gujarat v. Girish Radhakrishnan Varde, (2014) 3 SCC 659, has observed in paragraphs 13 and 14 of the judgment that the Judicial Magistrate or court cannot add or substract, exclude or include any Section mentioned in the charge-sheet at the time of taking of cognizance as the same is permissible at the time of framing of charge. The relevant paragraphs are delineated below: "13. 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.

14. The question, therefore, emerges to whether 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 4 A482 No. 41811 of 2024 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. (Emphasis supplied)"

8. In view of the aforesaid facts and circumstances of the case, this Court is not inclined to grant relief to the applicant. Accordingly, the application is dismissed.

9. The accused shall be at liberty to avail the appropriate remedy by raising his grievances at the time of framing of charge. December 16, 2025 K.Tiwari (Praveen Kumar Giri,J.)

1. Heard Shri Parmeshwar Chaudhary, learned counsel for the applicant and Shri Pankaj Kumar Tripathi, learned A.G.A. for the State.

2. Learned counsel for the applicants submits that he has filed the instant application under Section 482 Cr.P.C. with the relief which has been mentioned in the prayer clause of the application.

3. The relief which has been mentioned in the application is delineated below:- "It is, therefore, Most Respectfully prayed that this Hon'ble Court may graciously be pleased to quash the Cognizance/ Summoning Order dated

10.09.2024 and B.W. dated 12.11.2024 passed by Special Chief Judicial Magistrate, Agra in Case No.17822 of 2024, (State Versus Atif Abbas @ Chhotu) and Charge sheet No.91/2024 dated 22.02.2024 in as much as entire proceeding of Case No.17822 of 2024, under Section 420, 467, 468, 471 I.P.C. arising out of Case Crime No.321 of 2023 under Section 420, 467, 468, 471 I.P.C., Police Station Shahganj, District- Agra pending in the Court of Special Chief Judicial Magistrate, Agra."

4. Learned counsel for the applicant submits that an F.I.R. has been lodged as Case Crime No.321 of 2023, under Sections 420, 467, 468, 471 I.P.C., Police Station Shahganj, District- Agra against the applicant. Learned counsel for the applicant further submits that the applicant had 2 A482 No. 41811 of 2024 applied for a passport with a different name, which did not tally with his high school marksheet as well as certificate and pursuant thereto the police conducted an inquiry and in the inquiry report, it has been found that the editing in respect of the applicant’s name, his father’s name and his mother’s name has been done by the applicant himself. Learned counsel for the applicant further submits that in the inquiry it has been disclosed that such editing was not done by any other person, who is running the cyber cafe.

5. Per contra, learned A.G.A. submits that the applicant intended to obtain a passport with different name which was not mentioned in his high school marksheet and certificate. He submits that in the marksheet the applicant’s name is Chhotu Khan, the name of his father is Irshad Khan and the name of his mother is Farzana Begum, whereas by using a photo editing app, the applicant changed his name to Atif Abbas, his mother’s name to Farzana in place of Farzana Begum and his father’s name to Irshad in place of Irshad Khan.

6. Learned A.G.A. further submits that the applicant, deliberately or intentionally, changed the names to obtain a passport from the Passport Department. He further submits that the learned Judicial Magistrate has taken cognizance in accordance with law and the remedy is available to the accused at the time of framing of charge, as an opportunity of hearing shall be given to the accused under Section 239 Cr.P.C. The said Section 239 Cr.P.C. (corresponding Section 262 BNSS) is quoted below: "Section 239 Cr.P.C., When accused shall be discharged- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Section 262 B.N.S.S., When accused shall be discharged- (1) The accused may prefer an application for discharge within a period of sixty days from the date of supply of copies of documents under Section 230. 3 A482 No. 41811 of 2024 (2) If, upon considering the police report and the documents sent with it under Section 193 and after making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing."

7. The Hon'ble Supreme Court in State of Gujarat v. Girish Radhakrishnan Varde, (2014) 3 SCC 659, has observed in paragraphs 13 and 14 of the judgment that the Judicial Magistrate or court cannot add or substract, exclude or include any Section mentioned in the charge-sheet at the time of taking of cognizance as the same is permissible at the time of framing of charge. The relevant paragraphs are delineated below: "13. 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.

14. The question, therefore, emerges to whether 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 4 A482 No. 41811 of 2024 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. (Emphasis supplied)"

8. In view of the aforesaid facts and circumstances of the case, this Court is not inclined to grant relief to the applicant. Accordingly, the application is dismissed.

9. The accused shall be at liberty to avail the appropriate remedy by raising his grievances at the time of framing of charge. December 16, 2025 K.Tiwari (Praveen Kumar Giri,J.)