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2019 Supreme(All) 890
IN THE HIGH COURT OF ALLAHABAD
SANJAY KUMAR SINGH, J.
Nand Lal Verma and Others - Appellants
Versus
State of U.P. and Another - Respondents
Application U/S 482 No. 16160 of 2008
Decided On : 30-05-2019
N.D. Shukla, Adv., S.B. Singh, Adv.
The main legal point established in the judgment is that the Magistrate cannot add or subtract sections at the time of taking cognizance, as per the provisions of Sections 216 and 218 of the Cr.P.C. and the judgment of the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) AIR SC 620.
Headnote:
Criminal Procedure Code - Cognizance - Sections 216, 218 - The court discussed the legality of adding additional accused persons and altering sections at the stage of taking cognizance. The court referred to the provisions of Sections 216 and 218 of the Cr.P.C. and relied on the judgment of the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) AIR SC 620, which held that the magistrate cannot add or subtract sections at the time of taking cognizance. The court concluded that the impugned order and charge-sheet were liable to be quashed as the criminal proceedings against the present applicants were an abuse of process of the court.
Fact of the Case:
The case involved a dispute arising from two FIRs filed against each other by different parties. The applicants filed an application under Section 482 Cr.P.C. to quash the charge-sheet and order dated 17.6.2008 against them, alleging that the Magistrate had exceeded his jurisdiction at the time of taking cognizance.
Finding of the Court:
The court found that the Magistrate had exceeded his jurisdiction at the time of taking cognizance by adding additional accused persons and altering sections in the charge-sheet. The court held that the impugned order and charge-sheet were an abuse of process of the court and quashed them.
Issues: The main issues were whether the Magistrate at the time of taking cognizance is empowered to add additional accused persons and alter sections in the charge-sheet, and whether the impugned order and charge-sheet were legal.
Ratio Decidendi: The court relied on the provisions of Sections 216 and 218 of the Cr.P.C. and the judgment of the Apex Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde, (2014) AIR SC 620 to conclude that the Magistrate cannot add or subtract sections at the time of taking cognizance.
Final Decision: The court allowed the application and quashed the impugned order dated 17.6.2008 and the charge-sheet dated 29.5.2008 against the present applicants, holding that the criminal proceedings against them were an abuse of process of the court.
Key Points: - The court held that the Magistrate cannot add or subtract sections at the time of taking cognizance in a case based on a police report (Cr.P.C. Sections 216, 218, and 228) per State of Gujarat Vs. Girish Radhakrishnan Varde (2014) AIR SC 620. (!) - The impugned order dated 17.6.2008 and the charge-sheet dated 29.5.2008 were quashed against the present applicants as the Magistrate exceeded his jurisdiction by adding additional accused and altering sections at cognizance. (!) - The judgment reiterates that at cognizance, a magistrate may not add or subtract sections and may not add non-charge-sheeted accused; such actions are permissible only at framing of charges under sections 216, 218, or 228 during trial. (!) (!) (!) - The decision cites that in State of Gujarat Vs. Girish Radhakrishnan Varde, the specific proposition is that the magistrate cannot alter sections at cognizance stage in a police-based case; after charge-sheet, issues are to be determined at framing of charges. (!) (!) - The court allowed the application under Section 482 Cr.P.C. and quashed the impugned order and charge-sheet regarding the applicants, calling the proceedings an abuse of process of the court. (!)
What is the ruling on whether a Magistrate can add or subtract sections at the time of taking cognizance under Cr.P.C. Sections 216 and 218?
What is the status of adding non-charge-sheeted accused at the cognizance stage and altering the charge-sheet in cases based on police reports?
What is the binding precedent or principle established by State of Gujarat Vs. Girish Radhakrishnan Varde regarding cognizance-stage alterations?
JUDGMENT :
Sanjay Kumar Singh, J.
Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and Sri N.D. Rai and Sri Virendra Kumar Singh, learned Additional Government Advocates for the State of U.P./opposite party no.1 are present. No one is present on behalf of the opposite party no.2.
2. It is contended by the learned counsel for the applicants that the opposite party no.2 (Bare Lal) of this case is also the applicant no.1 in connected Application under Section 482 Cr.P.C. No. 28032 of 2008, therefore, he is very much aware about the present case and after granting interim stay order dated 30.6.2008 in this case, the opposite party no.2 of this case has also preferred Application under Section 482 Cr.P.C. No. 28032 of 2008, but no counter affidavit has been filed by the opposite party no.2 (Bare Lal) in this case.
3. It is further submitted by the learned counsel for the applicants that this case is pending before this Court since 2008 but on account of non-appearance of learned counsels appearing in connected Application under Section 482 Cr.P.C. No. 28032 of 2008 final hearing of the present case could not take place. Recently, this case was listed on 22.5.2019 and 29.5.2019 but on account of non-appearance of learned counsels appearing in aforesaid connected Application, case was adjourned by this Court on 22.5.2019 and 29.5.2019. Orders passed on the aforesaid dates are reproduced herein-below:-
(i) Order dated 22.5.2019
"Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and learned AGA for the State are present.
It is submitted by learned counsel for the applicants that the opposite party no.2 in Application under Section 482 Cr.P.C. No. 16160 of 2008 is also applicant no.1 in Application under Section 482 Cr.P.C. No. 28032 of 2008, therefore, he is very much aware about the present case but till date no counter affidavit has been filed in this case.
Since, in the connected matter Application under Section 482 Cr.P.C. No. 28032 of 2008, no one is present on behalf of the applicants and opposite party no.2, therefore, it would be appropriate to list this case in the next cause list."
(ii) Order dated 29.5.2019
"Case called out in the revised list. Sri N.D. Shukla, learned counsel for the applicants and learned AGA for the State are present but no counsel appearing in connected Application under Section 482 Cr.P.C. No. 28032 of 2008 are present except learned AGA for the State.
It is contended by Sri N.D. Shukla, learned counsel for the applicants that on account of non-appearance of counsel appearing in the connected matter Application under Section 482 Cr.P.C. No. 28032 of 2008, his case is not being decided, though the matter is pending since 2008 before this Court.
On the request made by Sri N.D. Shukla, learned counsel for the applicants, put up this case tomorrow for hearing. Sri N.D. Shukla shall inform other counsels appearing in the connected matter about this order in writing."
4. Today, Sri N.D. Shukla, learned counsel for the applicants filed a supplementary affidavit dated 30.5.2019 mentioning that despite the order dated 29.5.2019 of this Court, the other counsels appearing in connected matter of this case have refused to accept the notice to appear in the matter. The contents of paragraph nos. 3 and 4 of the said affidavit sworn by Devendra Kumar Pandey (clerk of learned counsel for the applicants) are reproduced herein-below:-
"3. That, in pursuance of this Hon'ble Court order's dated 29.5.2019, the deponent prepared the information notice and went to seat of Sri Vijay Shyam Bhaskar, Advocate, Counsel for the opposite party no.2 i.e. on the same day 29.5.2019 at 1.00 P.M., but Shri Vijay Shyam Bhaskar, Advocate, refused to accept notice and the deponent also got contacted through his Mobile Phone No. 9565557731 to both the counsel Shri Vijay Shyam Bhaskar, Advocate, and Shri N.D. Shukla and Shri Vijay Shyam Bhaskar, Advocate, said he will not accept
