Allahabad High Court

1. Learned counsel for the applicant submits that the present application has been filed with the relief which has been mentioned in the prayer clause of this application. The prayer clause is being delineated below:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the entire criminal proceeding including the charge sheet dated 15.11.2022 as well as Cognizance order/summoning order dated 14.2.2023 passed by the Ld. Chief judicial Magistrate Aligarh in Case No.10453 of 2023 (State Vs Asjad Nasir) arising out of Case Crime No. 495 of 2022 under Section 323,352,506,452 of I.P.C. Police Station Civil Lines, District Aligarh pending in the Court of Ld. Chist Judicial Magistrate Aligarh."

2. Learned counsel for the applicant submits that the opposite party no.2 lodged First Information Report registered as Case Crime No. 495 of 2022 under Sections 506, 352 and 323 IPC at Police Station-Civil Lines, District Aligarh. Learned counsel for the applicant further submits that the opposite party no.2 and other witnesses elaborated the alleged incident in their statements recorded during the course of examination. Thereafter, the Investigating Officer submitted charge-sheet under Sections 323, 352, 506 and 452 of IPC and the Judicial Magistrate, without scrutinizing the police record, took cognizance under Sections 323, 352, 506 and 452 of IPC and summoned the accused-applicant.

3. Learned counsel for the applicant further submits that no such incident had taken place and due to enmity, the First Information Report has been 2 A482 No. 2857 of 2025 lodged.

4. Per contra, Sri Vivek Dubey, learned State Law Officer, submits that an F.I.R. is not an encyclopaedia and need not contain all minute details of the occurrence. It is further submitted that in the statements of the victim as well as of the witness, Valli Mohammad, it has been specifically stated that the applicant forcibly entered the room of the victim, voluntarily caused injuries to opposite party no. 2 and also extended threats to kill him. Thus, the sections under which the charge-sheet has been submitted and cognizance has been taken are in accordance with law.

5. The remedy is available to the accused to seek discharge from the offences mentioned in the charge-sheet or cognizance-cum-summoning order. 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 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 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 3 A482 No. 2857 of 2025 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 framed. should be 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." framed can be allowed to be (Emphasis supplied)

6. Upon perusal of the entire record and in view of the law laid down by the Hon’ble Supreme Court in Girish Radhakrishnan Varde (Supra), this Court is of the view that accused-applicant is required to be afforded an opportunity of hearing at the stage of framing of charge. Therefore, in terms of Section 239 of the Code of Criminal Procedure, if the applicant moves an application for discharge, the Trial Court shall consider and decide the same in accordance with law after providing an opportunity of hearing to the parties.

7. With the above observation, this application is disposed of. December 16, 2025 DKS (Praveen Kumar Giri,J.)

1. Learned counsel for the applicant submits that the present application has been filed with the relief which has been mentioned in the prayer clause of this application. The prayer clause is being delineated below:- "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the entire criminal proceeding including the charge sheet dated 15.11.2022 as well as Cognizance order/summoning order dated 14.2.2023 passed by the Ld. Chief judicial Magistrate Aligarh in Case No.10453 of 2023 (State Vs Asjad Nasir) arising out of Case Crime No. 495 of 2022 under Section 323,352,506,452 of I.P.C. Police Station Civil Lines, District Aligarh pending in the Court of Ld. Chist Judicial Magistrate Aligarh."

2. Learned counsel for the applicant submits that the opposite party no.2 lodged First Information Report registered as Case Crime No. 495 of 2022 under Sections 506, 352 and 323 IPC at Police Station-Civil Lines, District Aligarh. Learned counsel for the applicant further submits that the opposite party no.2 and other witnesses elaborated the alleged incident in their statements recorded during the course of examination. Thereafter, the Investigating Officer submitted charge-sheet under Sections 323, 352, 506 and 452 of IPC and the Judicial Magistrate, without scrutinizing the police record, took cognizance under Sections 323, 352, 506 and 452 of IPC and summoned the accused-applicant.

3. Learned counsel for the applicant further submits that no such incident had taken place and due to enmity, the First Information Report has been 2 A482 No. 2857 of 2025 lodged.

4. Per contra, Sri Vivek Dubey, learned State Law Officer, submits that an F.I.R. is not an encyclopaedia and need not contain all minute details of the occurrence. It is further submitted that in the statements of the victim as well as of the witness, Valli Mohammad, it has been specifically stated that the applicant forcibly entered the room of the victim, voluntarily caused injuries to opposite party no. 2 and also extended threats to kill him. Thus, the sections under which the charge-sheet has been submitted and cognizance has been taken are in accordance with law.

5. The remedy is available to the accused to seek discharge from the offences mentioned in the charge-sheet or cognizance-cum-summoning order. 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 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 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 3 A482 No. 2857 of 2025 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 framed. should be 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." framed can be allowed to be (Emphasis supplied)

6. Upon perusal of the entire record and in view of the law laid down by the Hon’ble Supreme Court in Girish Radhakrishnan Varde (Supra), this Court is of the view that accused-applicant is required to be afforded an opportunity of hearing at the stage of framing of charge. Therefore, in terms of Section 239 of the Code of Criminal Procedure, if the applicant moves an application for discharge, the Trial Court shall consider and decide the same in accordance with law after providing an opportunity of hearing to the parties.

7. With the above observation, this application is disposed of. December 16, 2025 DKS (Praveen Kumar Giri,J.)