Magistrate Cannot Add Or Exclude Sections While Taking Cognisance; Power Exercisable At Framing Of Charge: Allahabad High Court

The High Court clarified that once cognisance is taken of a police report, the accused can avail the statutory remedy of discharge if they dispute the applicability of the offences mentioned in the charge-sheet.

The Court was hearing an application under Section 482 of the Code of Criminal Procedure seeking quashing of a cognizance-cum-summoning order passed by a Judicial Magistrate based on a charge-sheet filed after investigation.

A Bench of Justice Praveen Kumar Giri, while declining to interfere, relied upon the law laid down by the Supreme Court in State of Gujarat v. Girish Radhakrishnan Varde (2014), and reiterated that “Judicial Magistrate or court cannot add or substract, exclude or include any Section mentioned in the chargesheet at the time of taking of cognizance as the same is permissible at the time of framing of charge”.

Senior Advocate Dinesh Singh appeared for the applicants, while the State of Uttar Pradesh was represented by Pankaj Kumar Tripathi, GA.

Background

The proceedings arose out of an FIR registered against the applicants for offences under Sections 354A, 504 and 506 of the Indian Penal Code. Upon completion of the investigation, the police submitted a charge sheet under the same provisions.

The Judicial Magistrate took cognisance of the offences on the basis of the charge-sheet and issued summons to the applicants. Aggrieved thereby, the applicants approached the High Court seeking quashing of the summoning order and the entire criminal proceedings, contending that no offence was made out under the sections invoked.

The applicants submitted that the Magistrate ought to have examined the correctness of the sections mentioned in the charge-sheet at the stage of cognisance and excluded those provisions which were allegedly not attracted.

Court’s Observation

The Allahabad High Court examined the scope of the Magistrate’s powers at the stage of taking cognisance of a police report. Relying on the Supreme Court’s judgment in State of Gujarat v. Girish Radhakrishnan Varde, the Court reiterated that in cases instituted on a charge-sheet, the Magistrate cannot add, subtract, include or exclude any section mentioned therein at the cognisance stage.

The statutory scheme, the Court held, clearly demarcates the stages of cognisance, discharge, and framing of charge, each having a distinct purpose.

The Bench further held that if an accused contends that the offences mentioned in the charge-sheet are not made out, the appropriate remedy is to seek discharge before the trial court. At that stage, the trial court is empowered to consider whether sufficient grounds exist to proceed against the accused and may frame charges or discharge the accused in accordance with the law.

“Thus, quashing/setting aside the cognizance order amounts to discharge at an early stage and adding or subtracting, excluding or including any section also amounts to alteration of charge for which an appropriate stage is provided under Sections 216, 218 and 221 Cr.P.C. (corresponding Sections 239, 241 and 244 B.N.S.S.) for alteration of charge, separate charge for distinct offence and cases where it is doubtful as to what offence has been committed”, the Bench reaffirmed.

Conclusion

Holding that the Judicial Magistrate acted within jurisdiction while taking cognizance of the charge-sheet, the Allahabad High Court dismissed the application under Section 482 CrPC and relegated the applicants to avail the remedy of discharge before the trial court.

Cause Title: Pawan Kumar Singh & Ors. v. State of Uttar Pradesh & Anr. (Neutral Citation: 2025:AHC:191246)

Appearances

Applicants: Senior Advocate Dinesh Singh, with Advocates Abhishek Bhushan

Respondents: Pankaj Kumar Tripathi, GA, with Anand Kumar and Shyam Singh

Click here to read/download Judgment