Rajesh Tiwari And Another v. State Of U.P. Thru. Prin. Secy. Home U.P. Lko. And Another

The applicants are aggrieved by the chargesheet filed under Section 323, 504, 506, 452 IPC Police Station Musafirkhana, Amethi and the order of cognizance dated 31.10.2022 passed by the learned Judicial Magistrate, Sultanpur. Shri Abhinav Singh, learned counsel holding brief of Shri Ramakar Shukla, learned counsel for the applicants submit that the order of summoning is bad in law as well as the trial court has taken cognizance of offence which were not reflected in the chargesheet. Learned AGA contends that the impugned order of cognizance passed by the learned trial court is consistent with the law laid down by this Court in Sadab vs. State of U.P. and another rendered in Application under Section 482 No. 29523 of 2022. Heard learned counsels for the parties. The chargesheet was filed against the applicants under Sections 323, 504, 506, 452 IPC. The cognizance was taken by the learned Judicial Magistrate, Sultanpur by impugned order dated 31.10.2022 for offences 147, 323, 392, 452, 504, 506 IPC. However, a perusal of the order and material in the record shows that the learned Magistrate has applied his mind to all the 2 A482 No. 7158 of 2025 evidences in the record and found that the ingredients of the offences in regard to which cognizance are taken are prima facie made out. This Court in Sadab (supra) examined the authority of the Magistrate to take cognizance of offence which were not reflected in the chargesheet. Hon'ble Sameer Jain, J with usual scholarly eloquence held thus: "18. Therefore, in view of Balveer Singh case (supra) too, the Magistrate is having all the authority to take cognizance of an offence which is exclusively triable by the court of sessions if after perusal of police report i.e. charge-sheet he arrives at the conclusion that such offence also made out against the accused.

19. The power to take cognizance of a Magistrate under Section 190 Cr.P.C. was exclusively discussed and dealt with by the Constitution Bench of the Apex Court in the case of Dharam Pal (supra), though the matter before Constitution Bench of the Apex Court was little bit different with regard to proceed against a person against whom charge-sheet was not submitted but Constitution Bench of the Apex Court analysed the power of the Magistrate under Section 190 Cr.P.C. very elaborately and observed that even if charge-sheet was not submitted against an accused and his name disclosed in column 2 to the charge-sheet, then also Magistrate can proceed against him if there is material against him in the police report submitted under Section 173(2) Cr.P.C. and Magistrate after taking cognizance can commit the case. The Constitution Bench of the Apex Court with regard to power of the Magistrate under Section 190(1)(b) Cr.P.C. observed as:- "35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."

22. The Supreme Court in the case of Nahar Singh (supra) also after discussing the judgment of the Constitution Bench of the Apex Court in case of Dharam Pal (supra) observed that even if a person has not been nominated in the charge- sheet i.e. police report submitted under Section 173(2) Cr.P.C. but if Magistrate after perusal of the report arrives at the conclusion that against him an offence is made out then he can take cognizance for such offences and can summon him. 3 A482 No. 7158 of 2025

23. Therefore, from the law laid down by the Constitution Bench of the Apex Court and above noted other judgments of the Apex Court it appears that Magistrate is having all the authority to take cognizance of any offence on the basis of the material collected by the Investigating Officer during investigation and if he arrives at the conclusion that an offence is also made out, in which, charge-sheet has not been submitted then he can take cognizance for such offence(s) too and can summon the accused and if any such offence is exclusively triable by the court of sessions then he shall commit the case before the court of sessions.

25. Further, in the later judgment of the Apex Court in the cases of Balveer Singh (supra) the Apex Court after considering the dictum of Constitution Bench in the case of Dharam Pal (supra) clearly held that Magistrate is fully empowered to disagrees with the police report and he can independently apply his mind and can take cognizance even for such offences, in which, charge- sheet was not submitted if from the perusal of the charge-sheet i.e. police report submitted under Section 173(2) Cr.P.C. he arrives at the conclusion that such offences also made out. Similar import is also of the judgment of the Apex Court in case of Nahar Singh (supra)." The impugned order is in consonance with the law laid down by this Court in Sadab (supra). The application under Section 482 is misconceived and is accordingly dismissed. August 29, 2025 Vandit (Ajay Bhanot,J.) VANDIT AGRAWAL High Court of Judicature at Allahabad, Lucknow Bench

The applicants are aggrieved by the chargesheet filed under Section 323, 504, 506, 452 IPC Police Station Musafirkhana, Amethi and the order of cognizance dated 31.10.2022 passed by the learned Judicial Magistrate, Sultanpur. Shri Abhinav Singh, learned counsel holding brief of Shri Ramakar Shukla, learned counsel for the applicants submit that the order of summoning is bad in law as well as the trial court has taken cognizance of offence which were not reflected in the chargesheet. Learned AGA contends that the impugned order of cognizance passed by the learned trial court is consistent with the law laid down by this Court in Sadab vs. State of U.P. and another rendered in Application under Section 482 No. 29523 of 2022. Heard learned counsels for the parties. The chargesheet was filed against the applicants under Sections 323, 504, 506, 452 IPC. The cognizance was taken by the learned Judicial Magistrate, Sultanpur by impugned order dated 31.10.2022 for offences 147, 323, 392, 452, 504, 506 IPC. However, a perusal of the order and material in the record shows that the learned Magistrate has applied his mind to all the 2 A482 No. 7158 of 2025 evidences in the record and found that the ingredients of the offences in regard to which cognizance are taken are prima facie made out. This Court in Sadab (supra) examined the authority of the Magistrate to take cognizance of offence which were not reflected in the chargesheet. Hon'ble Sameer Jain, J with usual scholarly eloquence held thus: "18. Therefore, in view of Balveer Singh case (supra) too, the Magistrate is having all the authority to take cognizance of an offence which is exclusively triable by the court of sessions if after perusal of police report i.e. charge-sheet he arrives at the conclusion that such offence also made out against the accused.

19. The power to take cognizance of a Magistrate under Section 190 Cr.P.C. was exclusively discussed and dealt with by the Constitution Bench of the Apex Court in the case of Dharam Pal (supra), though the matter before Constitution Bench of the Apex Court was little bit different with regard to proceed against a person against whom charge-sheet was not submitted but Constitution Bench of the Apex Court analysed the power of the Magistrate under Section 190 Cr.P.C. very elaborately and observed that even if charge-sheet was not submitted against an accused and his name disclosed in column 2 to the charge-sheet, then also Magistrate can proceed against him if there is material against him in the police report submitted under Section 173(2) Cr.P.C. and Magistrate after taking cognizance can commit the case. The Constitution Bench of the Apex Court with regard to power of the Magistrate under Section 190(1)(b) Cr.P.C. observed as:- "35. In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."

22. The Supreme Court in the case of Nahar Singh (supra) also after discussing the judgment of the Constitution Bench of the Apex Court in case of Dharam Pal (supra) observed that even if a person has not been nominated in the charge- sheet i.e. police report submitted under Section 173(2) Cr.P.C. but if Magistrate after perusal of the report arrives at the conclusion that against him an offence is made out then he can take cognizance for such offences and can summon him. 3 A482 No. 7158 of 2025

23. Therefore, from the law laid down by the Constitution Bench of the Apex Court and above noted other judgments of the Apex Court it appears that Magistrate is having all the authority to take cognizance of any offence on the basis of the material collected by the Investigating Officer during investigation and if he arrives at the conclusion that an offence is also made out, in which, charge-sheet has not been submitted then he can take cognizance for such offence(s) too and can summon the accused and if any such offence is exclusively triable by the court of sessions then he shall commit the case before the court of sessions.

25. Further, in the later judgment of the Apex Court in the cases of Balveer Singh (supra) the Apex Court after considering the dictum of Constitution Bench in the case of Dharam Pal (supra) clearly held that Magistrate is fully empowered to disagrees with the police report and he can independently apply his mind and can take cognizance even for such offences, in which, charge- sheet was not submitted if from the perusal of the charge-sheet i.e. police report submitted under Section 173(2) Cr.P.C. he arrives at the conclusion that such offences also made out. Similar import is also of the judgment of the Apex Court in case of Nahar Singh (supra)." The impugned order is in consonance with the law laid down by this Court in Sadab (supra). The application under Section 482 is misconceived and is accordingly dismissed. August 29, 2025 Vandit (Ajay Bhanot,J.) VANDIT AGRAWAL High Court of Judicature at Allahabad, Lucknow Bench